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Nextiva terms, conditions, and policies can be found below.

Nextiva VoIP Service

TERMS & CONDITIONS

SIGNING UP FOR NEXTIVA’S VOIP SERVICE CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER, (3) YOUR USE OF THE SERVICE DESCRIBED HEREIN. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.

  1. INTRODUCTION. These NEXTIVA VOIP Service Terms and Conditions, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between NEXTIVA, Inc., an Arizona corporation (hereinafter referred to as “we,” “us” or “NEXTIVA”) and the party set forth in the related registration order form (herein after referred to as “you,” “user” or “Customer”) regarding NEXTIVA’s Service (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “NEXTIVA” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.
  2. DEFINITIONS.
    1. “Device” means a NEXTIVA-provided telephone, telephone adapter (“Adapter”), router, or other device used with the Services.
    2. “Documentation” means user manuals and other documentation relating to the Services, which are available to Customer by Nextiva accessible via the Internet or in the form of printed media.
    3. “Services” means the products and services that are being provided to you as described in any quote or order form, including, but not limited to, Nextiva’s Unified Communication services, collaboration services, and any associated software, hardware or web-based platform. “Service” shall also include any additional Services provided to you as described in any addendum or amendment.
    4. “Software” means any proprietary software owned by, licensed by, or which Nextiva has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
  3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing (except during the term of a Minimum Commitment Contract) for the Service. Notice of revisions to the Agreement or pricing shall be posted on the NEXTIVA Website (“the Website”) and deemed given and effective on the date posted to the Website. If you do not agree to the revision(s), you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions.
  4. CUSTOMER REPRESENTATIONS. You represent and warrant that your primary residence or business address is in the United States. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that NEXTIVA relies on the information you supply and that providing false or incorrect information may result in Service provisioning and delivery delays, the suspension or termination of your Service and the inability of a 911- dialed call to be correctly routed to emergency service personnel, as further explained below. You agree to promptly notify NEXTIVA whenever your personal or billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and payment method, including credit card number and expiration date, if applicable). You agree to be financially responsible for your use of the Service as well as for use of your account by others.
  5. USE OF SERVICE AND DEVICE.
    1. Business Plans. Service is provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Service to any other person for any purpose or make any charge for the use of the Service, without express written permission from NEXTIVA in advance. NEXTIVA reserves the right to immediately terminate, change the calling plan or modify the Service if NEXTIVA determines, in its sole discretion, that you are using the Service for non business or non-commercial use.
    2. Restrictions. You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services.
    3. Residential Plans. If you subscribe to our residential services, we provide you with the Service and the Device solely for residential use. NEXTIVA reserves the right to immediately terminate, change the calling plan or modify the Service if NEXTIVA determines, in its sole discretion, that you are using the Service for non residential use.
    4. User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that NEXTIVA will be sending you information, including your Password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by NEXTIVA to authenticate customer calls and should not be shared.
    5. Use of Service and Device by Customers Outside the United States. While Nextiva encourages use of the Service within the United States to other countries, Nextiva does not presently offer or support the Service to customers located in any countries other than the United States. Nextiva’s Services are only for use by persons or entities whose primary residence or business address is in the United States. Nextiva’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high- speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, Nextiva does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove the Device to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. You also agree to indemnify us for any claims, damages or expenses resulting from your use of the Services outside of the United States. Nextiva reserves the right to disconnect Services immediately if Nextiva determines, in its sole and absolute discretion, that you have used the Service or the Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you.
    6. Account Ownership. The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with NEXTIVA. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. NEXTIVA shall not adjudicate ownership-related disputes, or any other internal business dispute. If NEXTIVA is unable to determine the valid owner of the account, NEXTIVA reserves the right to suspend or terminate the account and Services.
    7. Unlimited Toll-Free Calling. Unlimited Toll-Free Calling is limited to receiving calls originating in the United States only.
  6. LOCAL NUMBER PORTABILITY. In the event you are transferring an existing phone number that currently is subscribed to another carrier, the following terms and conditions apply:
    1. Authorization. You hereby authorize NEXTIVA to process your order for the Service and to notify your local service provider of your decision to switch your local services to NEXTIVA and to transfer your telephone number, and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by NEXTIVA or the third party services provider will delay the porting of the number to NEXTIVA. You acknowledge that the porting of your numbers is dependent upon the cooperation of you and third parties not under the control of NEXTIVA. NEXTIVA shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
    2. Activation. You agree and acknowledge that you must install and activate your Device prior to the date that the number switch becomes effective. You will be assigned a temporary telephone number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
    3. Limitation. NEXTIVA has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
    4. Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or your account due to acts or omissions of third parties, and it may be difficult or impossible for NEXTIVA to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of your account; or (iii) port such numbers back into your account. NEXTIVA has no responsibility or liability due to such port-outs.
  7. SERVICE DISTINCTIONS. You acknowledge and understand that the Service is not a telephone service, and we provide it on a best efforts basis. Important distinctions exist between telephone service and the enhanced Service offering provided by NEXTIVA. The Service is subject to different regulatory treatment than telephone This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service.
    1. EMERGENCY SERVICES - 911 DIALING. You acknowledge and understand that NEXTIVA 911 dialing is different than traditional 911 service. See complete 911 disclosure posted on our Web site at https://www.nextiva.com/downloads/nextiva_e911.pdf. YOUR SERVICE WILL NOT BE ACTIVATED UNTIL NEXTIVA RECEIVES AN AFFIRMATIVE ACKNOWLEDGMENT THAT YOU HAVE READ AND UNDERSTOOD NEXTIVA’S 911 DISCLOSURE AGREEMENT.
    2. No 0+ or Operator Assisted Calling; May Not Support X11 Calling. You acknowledge and understand that the Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial- around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
    3. No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
    4. Incompatibility with Other Services.
      1. Non-Voice Equipment Limitations. You acknowledge and understand that the Service is not compatible with all non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. By accepting this Agreement, you waive any claim you may have against NEXTIVA for interference with or disruption of such systems due to the Service.
      2. Certain Broadband, Cable Modem, and Other Services. There may also be other services with which our Service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
    5. Use Outside of the United States. As previously noted there are limitations with the Service’s access to 911. Nextiva’s Service does not provide access to emergency services in any country outside of the United States. Nextiva disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
  8. LENGTH OF SERVICE.
    1. Service Term. We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”), or the date we successfully process your payment, whichever is later. It is not the day you receive the Device you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order.
    2. Automatic Renewal. Nextiva shall automatically renew the Service for the same term on your Subscription Date unless you cancel your Service before the end of the current service term. See “Termination of Service” Section 8.4. The renewal begins on the day after the last day of your term. The renewal will be charged to your payment method on file, which may include any payment method automatically updated by your issuing bank. If you are paying by credit card and your credit card is declined, invalid, or payment is not made by the issuer of your credit card on your Subscription Date, without further notice Nextiva reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued for nonpayment.
    3. Our right to disconnect. You understand and agree that Nextiva has the right to suspend, terminate or disconnect any part of Your Service generally at any time if:
      1. We determine or reasonably believe that You are violating, or violated, any applicable law;
      2. We determine or reasonably believe that You materially breached this Agreement and/or the AUP;
      3. We determine or reasonably believe that You used fraudulent means to pay for the Services, including use of a fraudulent credit card;
      4. We determine or reasonably believe that You abused or harassed (verbally or otherwise) any Nextiva employee, contractor, agent or representative;
      5. We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
      6. You bring any legal action or proceeding against Nextiva, or participate in any class action lawsuit against Nextiva;
      7. A petition in bankruptcy is filed by or against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over You or Your material assets;
      8. We determine that such action is necessary to protect maintain, or improve the Services, to prevent fraud or misrepresentation, to protect Nextiva, its customers or other third party Nextiva affiliates, or for any other good cause.
      9. It is otherwise contemplated by this Agreement.
      10. You fail to make payment.
      All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
    4. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at service@Nextiva.com or by calling 1-800-983-4289 prior to expiration of the current service term. Please refer to the NEXTIVA Cancellation Policy posted on our Web site at https://www.nextiva.com/downloads/NextivaCancellationPolicy.pdf.
  9. DEVICES.
    1. Ownership and Risk of Loss. You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices. Minimum Commitment Contracts for Services and Devices may include early termination fees. Returns of non-defective Devices outside of the initial 30 day moneyback guarantee period will not be accepted. Refer to the Cancellation policy for more information.
    2. Rented Devices. For the purposes of this section "Rented Devices" means any Device leased to Client by Nextiva or Nextiva agents or any other third-party with or without a separate charge or fee in connection with the Services.

      Section 9.1 above will not apply to Rented Devices.

      Unless otherwise agreed upon, Client agrees that within thirty (30) days after the expiration of the Term of any Device Rental Agreement or termination of this Agreement, Client will promptly return all Rented Devices to Nextiva. Client will be responsible for (i) any  damage to the Rented Devices as assessed by Nextiva upon receipt, (ii) the replacement cost of such Rented Devices if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs.

      Client agrees to pay the full retail cost for the repair or replacement of any Rented Device or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by Nextiva in obtaining or attempting to obtain possession of any Rented Devices.

    3. Promotional Devices. Devices included in a service offering at no charge may be previously used equipment. Unless otherwise provided in a Minimum Commitment Contract, Devices not returned upon cancellation of the Service will be charged to the customer. See Cancellation policy for details.
    4. Replacement of a Defective Device. Devices purchased from NEXTIVA will be covered by their respective factory warranties, if any, only. NEXTIVA does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact NEXTIVA at support@Nextiva.com so that NEXTIVA may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by NEXTIVA in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement will be sent to you in accordance with the factory warranty, if any. If an advance replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then NEXTIVA will charge you for the second device or for the missing parts.
    5. Receipt of damaged Devices. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Customer Care Department immediately at support@Nextiva.com for return instruction.
    6. Tampering with the Device. You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
    7. Prohibited Devices. You are prohibited from using the Services with any devices other than NEXTIVA-approved devices received from retailers or from us.
  10. FEES AND CHARGES.
    1. We will publish fees and charges on our Web site. These fees and charges may change from time to time (except pricing will not change during the term of a Minimum Commitment Contract). New pricing will be effective the next day following posting to the Web site and may be applied to renewals of existing services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, are subject to change from time to time and are applicable to ALL Customers regardless of a Minimum Commitment Contract.
    2. Billing increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
    3. Taxes. Taxes Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide NEXTIVA with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date NEXTIVA receives such certificate.
    4. Charges for Directory Calls (411). We will charge you $1.25 for each call you make to NEXTIVA directory assistance.
    5. Charges for Calls from Public Payphones. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones.
    6. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Web site and vary by product and plan chosen.
    7. Regulatory Recovery Fee. A Regulatory Recovery Fee shall be charged monthly to offset costs incurred by NEXTIVA in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee may apply  to every phone number assigned, including toll free and virtual numbers.
    8. Reinstatement Fee. Reinstating any service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.
    9. Returned Check Fee. NEXTIVA may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
  11. BILLING AND PAYMENT.
    1. Billing. We will charge you in advance for each term of service. If you have selected a free trial offering, we will commence charging you for the Service at the expiration of the free trial period, unless we are notified of the contrary. When you subscribe to the Service, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. Fees may also include activation fees, porting fees, early termination fees ("ETF"), reinstatement fees, and returned check fees. We reserve the right to charge all fees to your payment method. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. NEXTIVA’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way NEXTIVA’s rights to collect any amount due. NEXTIVA may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
    2. Payment. When you subscribe to the Service, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
    3. Collection. If we disconnect the Service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
    4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
    5. Billing Disputes. You must notify NEXTIVA in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any NEXTIVA charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: billing@Nextiva.com. NEXTIVA will charge a late fee as described in Section 11.1 for a disputed amount if (1) it was not paid by the due date and (2) NEXTIVA determines that you disputed the charge in bad faith.
    6. Prepaid Services. All prepaid fees being provided to you as described in any quote or order form and other payments by you under this Agreement are non-refundable and non-creditable.
  12. PRICING AND PAYMENT.
    1. Prices and Fees. NEXTIVA fees and charges for the Service are supplied to you during the ordering process unless otherwise provided for in this You agree to pay the applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, Adapter fees, Device charges, shipping and handling and other nonrecurring charges will be charged to your payment method on file. Recurring charges will be billed and automatically charged to your payment method on file on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 8.1.
    2. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD (IF APPLICABLE) FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. If you are paying with a credit card, you agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. If your issuing bank automatically provides us with an updated credit card, you agree that we may charge this new credit card for all amounts due to us without additional notice or consent. You also agree to indemnify us for any claims, damages or expenses resulting from providing a debit card instead of a credit card (if applicable). If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service until your account is paid in full.
    3. Credit Balance Account. Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, international calls, toll free charges, Directory Assistance calls and taxes related to these calls are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to make additional calls until the balance is paid down. You can make payments to reduce your credit balance account at any time by contacting our Customer Care Department at 1-800-983-4289 or by email to support@nextiva.com. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the payment method on file.
    4. Credit Terms. All Services provided to You and covered by the Agreement shall at all times be subject to credit approval or review by NEXTIVA. You will provide such credit information or assurance as is requested by NEXTIVA at any time. NEXTIVA, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
    5. Discontinuation of Service for Nonpayment. The Service to you may be denied or discontinued without notice at any time in the event you fail to make payment, your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your payment method fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide NEXTIVA your payment method, including credit card information if applicable. If the payment method is not resolved within 48 hours, NEXTIVA will deactivate the Service. If your new payment method is approved within 24 hours, your calling plan and billing cycle will remain unchanged. We reserve the right to modify the per minute calling plan at any time. You agree to pay all charges owed to NEXTIVA, including but not limited to the reinstatement fee for reactivated services. In the event NEXTIVA utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
    6. Promotions. NEXTIVA may limit the number of promotions you may be eligible for in a given period. Promotions may be cancelled by NEXTIVA at any time.
    7. Cancellation Policy. NEXTIVA cancellation policies are outlined in the Cancellation Policy posted at our Web site at https://www.nextiva.com/downloads/NextivaCancellationPolicy.pdf and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to service@Nextiva.com or by calling our Customer Care Department at 1-800-983-4289 and must be made prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective the day following posting to our Web site.
  13. Acceptable Use Policy. You agree to comply with the NEXTIVA Acceptable Use Policy (“AUP”), which is posted on our Web site at https://www.nextiva.com/downloads/NextivaAUPpolicy.pdf and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective the day following posting to our Web site.
  14. MANAGEMENT OF YOUR DATA AND COMPUTER.
    1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your computer and telephone and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Service and to operate your computer. NEXTIVA will only provide technical assistance with respect to your NEXTIVA-provided Adapter.
    2. Monitoring of Network Performance. NEXTIVA automatically measures and monitors network performance. We also will access and record information about your computer's profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to NEXTIVA's monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service.
    3. Storage of User Information. NEXTIVA is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that NEXTIVA has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that NEXTIVA may establish limits as to the size of communications that NEXTIVA transmits or stores and the duration for which NEXTIVA stores any communications.
  15. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION.
    1. WARRANTIES.
      1. NEXTIVA MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. NEXTIVA DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEXTIVA DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE  FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
      2. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF NEXTIVA SERVICE, INCLUDING INTERNATIONAL CALLING SERVICES.
    2. LIMITATION OF LIABILITY.
      1. IN NO EVENT SHALL NEXTIVA BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL NEXTIVA BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO NEXTIVA OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND NEXTIVA’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. NEXTIVA SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXTIVA’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXTIVA’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. NEXTIVA’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT NEXTIVA WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE NEXTIVA FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
  16. INDEMNIFICATION AND WAIVER OF CLAIMS.
    1. INDEMNIFICATION.
      1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
  17. CONTENT. You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Service or Device. You promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service and the Device.
  18. MISCELLANEOUS LEGAL CONSIDERATIONS.
    1. Governing Law. This Agreement and the relationship between you and NEXTIVA shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropriate state or federal court located in Maricopa County, Arizona.
    2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. NEXTIVA reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by NEXTIVA under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
    3. No Third Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.
    4. Entire Agreement. This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of NEXTIVA’s websites constitute the entire agreement between you and NEXTIVA and govern your use of the Service, superseding any prior agreements between you and NEXTIVA and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or NEXTIVA unless they are agreed to in writing by both parties.
    5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
  19. DISPUTE RESOLUTION AND BINDING ARBITRATION.
    1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
    2. Arbitration. NEXTIVA and you agree to arbitrate any and all disputes and claims between you and NEXTIVA except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and NEXTIVA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “NEXTIVA,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and NEXTIVA.
    3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the NEXTIVA Customer Care Department at (800) 983-4289 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim.. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
    4. Formal Notice of Disputes A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to NEXTIVA must be sent to NEXTIVA, attention “General Counsel,” by certified mail addressed to 8800 E. Chaparral Road, Scottsdale, AZ 85250.
      1. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and NEXTIVA do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or NEXTIVA may commence an arbitration proceeding. The amount of any settlement offer made by you or NEXTIVA shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or NEXTIVA is entitled.
    5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at AAAUniversity@adr.org, or by mail at 3200 N. Central Ave, Ste 1560, Phoenix, AZ 85012. The arbitration shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.
    6. Waiver of Judge or Jury Trial. You and NEXTIVA agree that, by entering into this agreement, you and NEXTIVA are waiving the right to a trial by judge or
    7. Waiver of Class Actions. You and NEXTIVA agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and NEXTIVA agree that you and NEXTIVA may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and NEXTIVA agree that, unless you and NEXTIVA agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
    8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
    9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices: (a) we may take our dispute to small claims court, if the contained dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or NEXTIVA, pending the completion of arbitration.
    10. Modification of Arbitration. If NEXTIVA makes any substantive change to this arbitration provision, you may reject any such change and require NEXTIVA to adhere to the language in this provision.
    11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by the office of AAA located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.,
  20. PRIVACY. NEXTIVA Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that NEXTIVA cannot guarantee that voice over IP communication is completely secure. You agree that NEXTIVA may access all features of your account and the Service to determine whether the Service is being used fraudulently and/or in violation of this Agreement, and for any other purposes. YOU AGREE THAT NEXTIVA SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. NEXTIVA is committed to respecting your privacy relating to personally identifiable information. Once you choose to provide personally identifiable information, it will only be used in the context of your relationship with NEXTIVA. NEXTIVA will not sell, rent, or lease your personally identifiable information to others. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, NEXTIVA may disclose personally identifiable information. Please refer to our Privacy Policy for additional information.
  21. EXPORT COMPLIANCE. You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or Device, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
  22. RECORDING CONVERSATIONS. Certain NEXTIVA 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. NEXTIVA expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify NEXTIVA from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. You agree that NEXTIVA, may at its sole discretion, record any call between NEXTIVA and You for NEXTIVA quality control purposes.
  23. ASSIGNMENT. NEXTIVA may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Service or Device without our prior written agreement.
  24. SURVIVAL. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
  25. CALEA. NEXTIVA intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, you hereby agree and consent to NEXTIVA’s right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
  26. FORCE MAJEURE (EVENTS BEYOND NEXTIVA’S CONTROL). NEXTIVA shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of NEXTIVA’s best efforts.
  27. SOFTWARE COPYRIGHT Any software used by NEXTIVA to provide the Service and any software provided to you in conjunction with providing the Service is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Service.
  28. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE. Our Web site content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.

Updated: May 3, 2019

Nextiva Fax Service

TERMS & CONDITIONS

SIGNING UP FOR NEXTIVA'S FAX SERVICE CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. YOU ARE AGREEING TO BE BOUND BY ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER, (3) YOUR USE OF THE SERVICE DESCRIBED HEREIN. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.

  1. INTRODUCTION. This NEXTIVA Fax Service Agreement, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to (collectively, the “Agreement”), constitutes the entire agreement between NEXTIVA, Inc., an Arizona corporation (hereinafter referred to as (“we,” “us” or “NEXTIVA”) and the party set forth in the related Order (herein after referred to as “you,” “user” or “Customer”) regarding NEXTIVA's Fax Service (as defined herein), and supersedes all prior agreements, discussions or writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “NEXTIVA” includes our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement. For purposes of this Agreement, the term “Service” shall mean NEXTIVA's facsimile services and any other services, including all software, equipment and other features, products and services provided by NEXTIVA necessary to provide the service and described in any order form, and the term “Equipment” or “Device” shall mean a NEXTIVA-provided Facsimile Bridge adapter (“Adapter”) and accompanying Ethernet cable if applicable.
  2. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing for the Service. Notice of revisions to the Agreement or pricing shall be posted on the NEXTIVA Website (“the Website”) and deemed given and effective on the date posted to the Website. If you do not agree to the revision(s), you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions.
  3. CUSTOMER REPRESENTATIONS. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that NEXTIVA relies on the information you supply and that providing false or incorrect information may result in Service provisioning and delivery delays, the suspension or termination of your Service. You agree to promptly notify NEXTIVA whenever your personal or billing information changes (including but not limited to your name, address, e-mail address, telephone number, and credit card number and expiration date). You agree to be financially responsible for your use of the Service as well as for use of your account by others.
  4. USER RESPONSIBILITY. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that NEXTIVA will be sending you information, including your Password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and faxes you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by NEXTIVA to authenticate customer communications and should not be shared.
  5. PORTABILITY. In the event you desire to use a fax number you already own with the Service, you will be required to port your number to our location. The procedure for porting your fax number along with the documents that must be completed will be emailed to you after your order is completed.
    1. You hereby authorize NEXTIVA to process your order for the Service and to notify your local service provider of your decision to switch your local services to NEXTIVA and to transfer your fax number, and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by NEXTIVA or the third party services provider will delay the porting of the number to NEXTIVA. You acknowledge that the porting of your numbers is dependent upon the cooperation of you and third parties not under the control of NEXTIVA. NEXTIVA shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
    2. You agree and acknowledge that you must install and activate your Device prior to the date that the number switch becomes effective. You will be assigned a temporary fax number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
    3. NEXTIVA has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
    4. Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or your account due to acts or omissions of third parties, and it may be difficult or impossible for NEXTIVA to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of your account; or (iii) port such numbers back into your account. NEXTIVA has no responsibility or liability due to such port-outs.
  6. SERVICE DISTINCTIONS. You acknowledge and understand that the Service we are providing is not a telephone service, and we provide it on a best efforts basis. Important distinctions exist between telephone service and the facsimile Service offering provided by NEXTIVA. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to the Service.
    1. Emergency Services 911 Dialing You acknowledge and understand that the Nextiva Fax Service is for data transmition only and emergency dialing to 911 is not capable with the service.
    2. Certain Broadband, Cable Modem, and Other Services. There may also be other services with which our Service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using our Service. We do not warrant that our Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our Service with any particular broadband service.
  7. LENGTH OF SERVICE.
    1. Service Term. We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered the Service or the date we successfully process your payment, whichever is later. It is not the day you receive the Equipment you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order.
    2. Annual Plan If you purchase the Service on an annual plan (i.e. 12-month prepaid fax plan), then you are purchasing the Service for the full length of the applicable Term (i.e. 12 months for a 12-month prepaid fax plan). You have thirty (30) days from the date of purchase for a prorated refund. After thirty (30) days, if you terminate the Services prior to the end of your prepaid term, then you are responsible for all charges for any remaining time left on the prepaid term as if you remained a customer through the end of the then-current prepaid term, including, without limitation, outstanding charges, unbilled charges, taxes, and fees, including any applicable disconnection fee. In addition, you will not be entitled to a refund for any unused portion of prepaid term charges.
    3. Automatic Renewal. The term of this Agreement shall automatically renew for the same term unless you cancel the Service before the end of your current service. See Termination of Service Section 8.4. The renewal begins on the day after the last day of your term.
    4. Our right to disconnect. We have the right to suspend or discontinue the Service generally, or to disconnect the Service, at any time. In addition, we reserve the right to immediately disconnect the Service at any time without notice due to non-payment or unlawful or inappropriate use of the Service.
      1. All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
    5. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at service@nextiva.com, or by calling 1-800-983-4289, prior to the expiration of the current service term. Please refer to the NEXTIVA Cancellation Policy posted on our Website at NEXTIVAFAX.com.
  8. DEVICES
    1. Ownership and Risk of Loss. You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected. Returns of non-defective Devices outside of the initial thirty (30) day money-back guarantee period will not be accepted. Refer to our Cancellation policy for more information.
    2. Replacement. Devices purchased from NEXTIVA will be covered by their respective factory warranties, if any, only. NEXTIVA does not offer any warranty in addition to, or in replacement of any factory warranties. Prior to returning the Equipment, you must contact NEXTIVA at support@nextiva.com so that NEXTIVA may determine whether a defect exists and to receive an RMA number, which is required to be submitted along with the return. You must ship the Equipment to the manufacturer at the address provided by NEXTIVA in accordance with all RMA procedures. You have seven (7) days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the Equipment, a replacement may be sent to you. If an advance replacement is provided and the factory has not received the defective Device within fourteen (14) days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then NEXTIVA will charge you for the second Device or for the missing parts.
    3. Receipt of damaged devices. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our customer care department immediately at support@nextiva.com for return instruction.
    4. Tampering with the Device. You may not change the electronic serial number or Equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
    5. Prohibited Devices. You are prohibited from using the Services with any Devices other than NEXTIVA-approved devices received from retailers or from us.
  9. FEES AND CHARGES
    1. Published Fees. We will publish fees and charges on our Website. These fees and charges may change from time to time (except pricing will not change during the term of a minimum commitment contract or prepaid annual plan). New pricing will be effective the next day following posting to the Website and may be applied to renewals of existing Services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of At our discretion, we may change introductory pricing.
    2. Billing increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Website for exact billing policies.
    3. Taxes. Taxes Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer's subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide NEXTIVA with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date NEXTIVA receives such certificate.
    4. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Website and vary by product and plan chosen.
    5. Reinstatement Fee. Reinstating the Service after deactivation for non-payment of fees shall result in a reinstatement fee up to $25.
  10. BILLING AND PAYMENT
    1. Billing.We will charge you in advance for each term of the Service. If you have selected a free trial offering, we will commence charging you for the Service at the expiration of the free trial period, unless we are notified to the contrary. When you subscribe to the Service, you must give us a valid email address and a payment method (credit card) that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for excess page charges, we will bill in advance to your payment method all charges, fees, and surcharges for each service term. We will bill monthly as due immediately excess page charges and any other charges which we decide to bill as due immediately. Bills will be emailed to the email address on record.
    2. Payment. When you subscribe to the Service, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
    3. Collection. If we disconnect the Service, you will remain liable to us for all charges under this Agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney's fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
    4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
    5. Billing Disputes. You must notify NEXTIVA in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any NEXTIVA charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: billing@nextiva.com.
  11. PRICING AND PAYMENT.
    1. Prices and Fees. NEXTIVA fees and charges for the Service are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay the applicable one-time and recurring charges. You further agree that any charges, including but not limited to, account setup fees, Adapter fees, Equipment charges, shipping and handling and other nonrecurring charges will be charged to your credit card. Recurring charges will be billed and automatically charged to your credit card on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date or at the expiration of a free trial period if applicable.
    2. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. You agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. You also agree to indemnify us for any claims or expenses resulting from providing a debit card instead of a credit card. If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service until your account is paid in full.
    3. Credit Balance Account. Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, page usage in excess of the pages allowed in your Service plan are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to send or receive additional facsimiles until the balance is paid down. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the credit card on file. You can make payments to reduce your credit balance account at any time by contacting our Customer Care Department at 1-800-983-4289 or by email to support@nextiva.com. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the credit card on file.
    4. Credit Terms. All Services provided to You and covered by the Agreement shall at all times be subject to credit approval or review by NEXTIVA. You will provide such credit information or assurance as is requested by NEXTIVA at any time. NEXTIVA, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
    5. Discontinuation of Service for Nonpayment. The Service to you may be denied or discontinued without notice at any time in the event your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your credit card fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide NEXTIVA your new credit card information. If the credit card issue is not resolved within 48 hours, NEXTIVA will deactivate the Services. If your credit card is approved within 24 hours, your facsimile plan and billing cycle will remain unchanged. We reserve the right to modify the per page usage plan at any time. You agree to pay all charges owed to NEXTIVA, including but not limited to the reinstatement fee for reactivated services. In the event NEXTIVA utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
    6. Promotions. NEXTIVA may limit the number of promotions you may be eligible for in a given period. Promotions may be cancelled by NEXTIVA at any time.
    7. Cancellation Policy. NEXTIVA's cancellation policies are outlined in the Cancellation Policy posted at our Website at com and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to service@nextiva.com, or by calling our Customer Care Department at 1-800-983-4289, and must be made thirty (30) days prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective upon posting to our Website.
  12. Use of Service
    1. Acceptable Use Policy. You agree to comply with the NEXTIVA Acceptable Use Policy (“AUP”) which is posted on our Website at https://www.nextiva.com/terms-and-conditions.html and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective upon posting to our Website.
    2. You shall not: (a) copy or adapt the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and regulations; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) use the Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services.
  13. MANAGEMENT OF YOUR DATA AND COMPUTER.
    1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your computer and facsimile machine and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Service and to operate your computer. NEXTIVA will only provide technical assistance with respect to your NEXTIVA-provided Adapter.
    2. Monitoring of Network Performance. NEXTIVA automatically measures and monitors network performance. We also will access and record information about your computer's profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to NEXTIVA's monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service.
    3. Storage of User Information. NEXTIVA is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that NEXTIVA has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that NEXTIVA may establish limits as to the size of communications that NEXTIVA transmits or stores and the duration for which NEXTIVA stores any communications.

  14. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION
    1. WARRANTIES
      1. NEXTIVA MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. NEXTIVA DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEXTIVA DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
    2. NO CREDIT ALLOWANCES FOR INTERRUPTION OF NEXTIVA SERVICE. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF NEXTIVA SERVICE, INCLUDING INTERNATIONAL FACSIMILE SERVICES.
    3. LIMITATION OF LIABILITY
      1. IN NO EVENT SHALL NEXTIVA BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL NEXTIVA BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING 911 DIALING AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO NEXTIVA OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND NEXTIVA'S CONTROL. NEXTIVA SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXTIVA'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXTIVA'S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. NEXTIVA'S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT NEXTIVA WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE NEXTIVA FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS' FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
  15. INDEMNIFICATION AND WAIVER OF CLAIMS
    1. INDEMNIFICATION
      1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS' FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
  16. CONTENT. You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Service or Device. You promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service and the Device.
  17. MISCELLANEOUS LEGAL CONSIDERATIONS
    1. Governing Law. This Agreement and the relationship between you and NEXTIVA shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropriate state or federal court located in Maricopa County, Arizona.
    2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of the right or provision. NEXTIVA reserves all of its rights at law and equity to proceed against anyone who uses this Service or Device illegally or improperly. All determinations by NEXTIVA under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
    3. No Third Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.
    4. Entire Agreement. This Agreement the Order, the applicable service description, the AUP, or any reference herein to the content of NEXTIVA's websites constitutes the entire agreement between you and NEXTIVA and govern your use of the Service, superseding any prior agreements between you and NEXTIVA and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or NEXTIVA unless they are made in a writing assigned by the parties.
    5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
  18. DISPUTE RESOLUTION AND BINDING ARBITRATION
    1. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
    2. Arbitration. NEXTIVA and you agree to arbitrate any and all disputes and claims between you and NEXTIVA except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This Agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and NEXTIVA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision.
    3. Informal Resolution of Disputes. Our customer care department can resolve most customer concerns quickly and to the customer's satisfaction. If you have a dispute or claim against us, you must first contact the NEXTIVA customer care department at (800) 983-4289 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth herein.
    4. Formal Notice of Disputes. A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. TheNotice of Dispute to NEXTIVA must be sent to NEXTIVA by certified mail addressed to 8800 Chaparral Road, Suite 300, Scottsdale, AZ 85250.
      1. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and NEXTIVA do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or NEXTIVA may commence an arbitration proceeding. The amount of any settlement offer made by you or NEXTIVA shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or NEXTIVA is entitled.
    5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at AAAUniversity@adr.org, or by mail at 3200 N Central Ave., Ste 1560, Phoenix, Arizona 85012. The arbitration shall be governed by the AAA's Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.
    6. Waiver of Judge or Jury Trial. You and NEXTIVA agree that, by entering into this Agreement, you and NEXTIVA are waiving the right to a trial by judge or jury.
    7. Waiver of Class Actions. You and NEXTIVA agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. You and NEXTIVA agree that you and NEXTIVA may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and NEXTIVA agree that, unless you and NEXTIVA agree otherwise, the arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
    8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
    9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices : (a) we may take our dispute to small claims court, if the contained dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party's intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or NEXTIVA, pending the completion of arbitration.
    10. Modification of Arbitration Provision. If NEXTIVA makes any substantive change to this arbitration provision, you may reject any such change and require NEXTIVA to adhere to the language in this provision.
    11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by the office of AAA located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.
  19. PRIVACY.The Service utilizes, in whole or in part, the public Internet and third party networks to transmit data communications. You acknowledge and understand that NEXTIVA cannot guarantee that internet communication is completely secure. You agree that NEXTIVA may access all features of your account and the Service to determine whether the Service is being used fraudulently and/or in violation of this Agreement, and for any other purposes. YOU AGREE THAT NEXTIVA SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. NEXTIVA is committed to respecting your privacy relating to personally identifiable information. Once you choose to provide personally identifiable information, it will only be used in the context of your relationship with NEXTIVA. NEXTIVA will not sell, rent, or lease your personally identifiable information to others. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, NEXTIVA may disclose personally identifiable information. Please refer to our Privacy Policy for additional information.
  20. EXPORT COMPLIANCE. You agree to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Service. You agree to comply with applicable local, state and federal regulations governing the locality in which the Device and Services are used.
  21. ASSIGNMENT. NEXTIVA may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Service or Device without our prior written agreement.
  22. SURVIVAL.The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
  23. CALEA. NEXTIVA intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, you hereby agree and consent to NEXTIVA's right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
  24. FORCE MAJEURE (EVENTS BEYOND NEXTIVA'S CONTROL) NEXTIVA shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of NEXTIVA's best efforts.
  25. SOFTWARE COPYRIGHT. Any software used by NEXTIVA to provide the Service and any software provided to you in conjunction with providing the Service is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Service.
  26. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE. Our Website content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.

October 31, 2017

Nextiva Drive Service

TERMS & CONDITIONS

These terms of service (the "Terms") are a binding legal contract between Nextiva, Inc., its affiliates, licensors, and subsidiaries (collectively, "Nextiva"), and the individual or legal entity who subscribes to the Nextiva Services ("you" or "your"). Any one of the following actions constitutes your acceptance and agreement to be bound by these Terms: (1) accepting the Terms electronically during the ordering process and/or logging on to use the Services, (2) your submission of an order, or (3) your use of the Services described herein. If you accept these Terms on behalf of a legal entity, you represent and warrant that you have the authority to accept these Terms on behalf of that legal entity. These Terms govern your use of any Nextiva online services ("Services"), the Nextiva website ("Site"), the client software distributed with this agreement and any other software provided by Nextiva, including any updates and any accompanying documentation ("Software"). Collectively, the Software, the Site and the Services may be referred to as the "Products." Your continued subscription to the Services following modifi- cation to the Services or these Terms, establishes your agreement to be bound by the application of the Terms to the modified Services or the modified Terms. If you do not agree to be bound by these Terms, you may not subscribe to the Services.

Accounts

You must register with Nextiva to use the Services, and you agree to keep your registration information accurate, complete and up to date as long as you continue to use the Services. You must create a Nextiva account that is protected by a username and password (your "Account"). If you are currently a Nextiva, Inc. voice subscriber, you may use the same username and password as your Nextiva, Inc. voice account. You agree to keep your password and other Account information secret, and not share that information with anyone else, in order to prevent unauthorized access to your Account. You are solely responsible for any activity that occurs under your user names and accounts, including any sub-accounts. You must notify Nextiva immediately of any unauthorized use of your accounts or any other security breach related to the Service. After you create an Account, the Services can begin to upload, download and access content and materials for which you have a legal right to copy, publish, share, store or otherwise use ("User Data").

If you subscribed to the Services through a legal entity such as your business, or through a Nextiva authorized reseller, you acknowledge and agree that other users may have been designated to access, control or manage your Account and your User Data. You, not Nextiva, are solely responsible for your Account and User Data.

Nextiva is not liable for any loss or damage arising out of any access to, sharing or use of, your Account and User Data. If you believe there has been unauthorized access to your Account or your User Data, you must notify Nextiva immediately.

Subscription

To ensure your Service is uninterrupted, your subscription will automatically renew and Nextiva will charge the then-current renewal fees to the credit card associated with your Account, unless you cancel your subscription. Your subscription will automatically terminate or expire, and your Account will be disabled, upon the earliest of (1) non-renewal, cancellation or expiration of a subscription or failure to pay subscription fees when due, if applicable, (2) Nextiva's discontinuation of the Services, or (3) failure to comply with these Terms. You acknowl- edge and agree that after non-renewal, cancellation or expiration of your subscription, Nextiva's policy is to automatically delete all User Data protected by your Account that is stored on Nextiva servers or on Nextiva’s third-party cloud storage providers.

Nextiva grants you a limited, non-exclusive, non-transferable and revocable license to access the Site and use the Services and Software. You acknowledge that Nextiva or third parties own all right, title and interest in and to the Products, including any systems or processes used exclusively by Nextiva to provide you the Services, all copies thereof and all proprietary rights therein, including copyrights, patents, trademarks, logos, domain names or other brand features of Nextiva. Except for the license granted in these Terms, Nextiva and its licensers retain all rights in the Products, and no implied licenses are granted to you.

You specifically agree that you will not, nor will you permit another person to (1) sublicense, lease, rent, loan, transfer, or distribute any portion of the Products; (2) modify, adapt, translate, or create derivative works from the Products; (3) decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Products; or (4) remove, obscure, or alter any trademark, copyright, or other proprietary rights notices displayed in the Software or on the Site. Any Software you have installed may periodically check with Nextiva for updates, and you agree that Nextiva may automatically download and install such updates on your devices.

Compliance with the Law

You are solely responsible for ensuring that as a subscriber of the Services, you are in compliance with all applica- ble federal, state and local laws, foreign laws, rules and regulations. You shall be solely responsible for your User Data. Nextiva assumes no responsibility whatsoever in connection with or arising from User Data or for actively monitoring User Data for inappropriate or illegal content. You specifically agree that you will not use the Prod- ucts to (1) violate any laws or regulations; (2) infringe the intellectual property or other rights of third parties; (3) transmit any material that is obscene or objectionable or that contains viruses or other harmful computer code or files such as Trojan horses, worms or time bombs. In addition, the Services may use data received or obtained from your device to determine your location ("Location Data"). By subscribing to the Services, you hereby consent and permit Nextiva to use Location Data in order to provide the Services to you. Nextiva does not make any representation, warranty or guarantee of accuracy, completeness or timeliness with respect to any Location Data.

Intellectual Property Rights

When you use the Service, you may not upload, store, share, display, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. If you commit violations, Nextiva may terminate your accounts.

Changes to the Service and Terms

Nextiva may discontinue, suspend or modify the Services, any feature included in the Services, or the availability of the Services on any particular device at any time and without notice to you. If any third-party makes an intellectual property infringement claim relating to the Services, Nextiva reserves the right to immediately terminate your subscription. Nextiva reserves the right to modify these Terms at any time, and each such modifi- cation will be effective upon posting on the Site. All material modifications will apply prospectively only. Your continued use of any Products following any such modification constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by these Terms, you must stop using the Products immediately.

Termination

These Terms, and any posted revisions, remain in effect as long as you continue to maintain an Account or use the Services. Nextiva may, immediately and without notice to you, terminate your Account and cease providing the Services to you if you (1) harm, disrupt or otherwise engage in activity that weakens Nextiva's brand, Services, computer system or network, (2) misrepresent your identity, impersonate any person or attempt to gain access to or illegally track any Account, computers or networks related to the Services, without authorization, (3) manipu- late a Service in any manner not specified by Nextiva, (4) interfere with Nextiva's policy with respect to excessive bandwidth usage, as determined by Nextiva, (5) store, backup or distribute any illegal or unauthorized files or data, or material protected by intellectual property rights of a third-party unless you own or have appropriate rights to such material, (6) store, backup or distribute material that contains viruses, Trojan horses, worms, corrupted files or any other similar material that may damage the operation of the Services or another person's device, data or property, (7) directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services, (8) assign, rent, loan or otherwise transfer the Services, or (9) remove or alter any proprietary notices (e.g., copyright, trademark notices, legends, etc.) received in the provision of the Services.

Disclaimer of Warranties

NEXTIVA MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICU- LAR PURPOSE AND/OR NON-INFRINGEMENT. NEXTIVA DOES NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OR LOSS OF CONTENT, DATA OR INFOR- MATION. NEXTIVA DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE"AS IS" AND THAT CUSTOMER IS NOT ENTITLED TO A REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE PRODUCTS ARE NOT INTENDED OR SUITABLE FOR USE IN APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

UNLESS OTHERWISE AGREED IN WRITING BY NEXTIVA OR AN AUTHORIZED RESELLER, NEXTIVA DOES NOT INTEND THAT YOUR USE OF THE SERVICES WILL CREATE ANY OBLIGATIONS TO COMPLY WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND ANY RELATED REGULA- TIONS ("HIPAA"), AND NEXTIVA MAKES NO REPRESENTATIONS THAT THE SERVICES SATISFY HIPAA REQUIREMENTS. IF YOU ARE A "COVERED ENTITY" OR "BUSINESS ASSOCIATE," YOU AGREE NOT TO USE THE SERVICES IN CONNECTION WITH ANY "PROTECTED HEALTH INFORMATION" (AS THOSE TERMS ARE DEFINED IN HIPAA) UNLESS AGREED IN WRITING BY NEXTIVA OR AN AUTHORIZED RESELLER.

Limitation of Liability

YOUR SUBSCRIPTION TO THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ANY DEVICE, OR THE LOSS OF YOUR USER DATA. IN NO EVENT SHALL NEXTIVA BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, AND/OR THIS AGREEMENT. NOR SHALL NEXTIVA BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF SERVICEQUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAIL- URE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO NEXTIVA OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND NEXTIVA’S CONTROL.

THE SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT NEXTIVA DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (1) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS, OR (2) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR USER DATA, WEB- SITES, DEVICES AND NETWORKS. NEXTIVA IS NOT RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR ACCOUNT AND YOUR USER DATA. NEXTIVA SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXTIVA’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXTIVA’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. NEXTIVA’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT NEXTIVA WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE NEXTIVA FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.

Indemnification and Waiver of Claims

YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLI- GENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.

Content

You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Service. you promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service.

Export

You acknowledge that use of the Products may be subject to the export and import laws of the United States and other countries. You agree to comply with all export and import laws and regulations. In particular, you acknowl- edge that the Products may not be exported or re-exported to any U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Products, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Products for any purposes prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

Governing Law

This Agreement and the relationship between you and Nextiva shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropri- ate state or federal court located in Maricopa County, Arizona.

Arbitration

Nextiva and you agree to arbitrate any and all disputes and claims between you and Nextiva except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and Nextiva, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agree- ment (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to "Nexti- va," "us" and "you" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and Nextiva.

FORCE MAJEURE

Nextiva shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of Nextiva’s best efforts.

No Waiver of Rights

Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. Nextiva reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly. All determinations by Nextiva under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.

No Third Party Beneficiaries

If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.

Entire Agreement

This Agreement, the Terms, the applicable service description, or any reference herein to the content of Nextiva’s websites constitute the entire agreement between you and Nextiva and govern your use of the Service, super- seding any prior agreements between you and Nextiva and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or Nextiva unless they are assigned by the parties.

Severability

If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.

Trademark

GUIDELINES

BRAND ASSET TRADEMARK GUIDELINES

The name Nextiva and our logo’s (“Trademarks”) are important intellectual property assets of the company. These guidelines have been created to ensure a uniform and proper use of our Trademarks by all of our licensees, partners, and other authorized users.

These guidelines provide an overall guide to permissible use of our Trademarks. The purpose is to assist you with referring to our Trademarks, and make certain of the correct use of our logos in different situations.

You must observe these guidelines and maintain a clear distinction between your products and services and Nextiva, Inc.’s (“Nextiva”) products and services, as well as between your trademarks and our Trademarks. Please do not display these graphics in a way that implies a relationship, affiliation, or endorsement by Nextiva of your products, services, or business. Also, please do not alter, distort, or modify these graphics, images, or video content in any way, or combine them with any other graphics, without prior written consent from Nextiva.

Nextiva is the sole and exclusive owner of our Trademarks, and we reserve all rights, titles and interest not expressly granted in these guidelines. Nextiva reserves the right to revoke or limit your usage of any Nextiva Trademark at any time and for any reason.

These guidelines are subject to revision at any time by Nextiva.

TERMS TRADEMARKED:

Nextiva®
Nextiva Office®
Nextiva Drive®
NextOS™
CoSpace™
XBert™
Amazing Service®
Simplifying Business Communication™
SocialSpring™

Our list of Trademarks is continuously changing as we add new products and services to our offerings. Please check back for updates.

GENERAL GUIDELINES

Use our Trademarks with permission. You may not use our Trademarks unless you have an agreement with Nextiva, Inc. or you otherwise receive our permission to use the Trademarks. Upon receiving our permission, your use must be limited to these Guidelines, and the limited permission you have received to use specific Trademarks. If you have any questions about these Guidelines or our Trademarks, please contact us at xbert@nextiva.com.

Do not combine our name with yours. Do not combine our name or Trademarks with your name, marks, or names of products and services.

No confusingly similar uses. You must not attempt to obtain ownership rights in our Trademarks, or any confusingly similar approximations, whether by trademark registration, domain name registration (including second-level domain names), or otherwise.

Display our trademark symbol. Please display our Trademarks and logos with the appropriate ™ or ® symbol.

Do not copy the look and feel of Nextiva, Inc.’s Trademarks or Website. Do not use our Trademarks, logos, trade dress, or other elements of our product packaging and website in any of your advertising, product packaging, promotional and other materials, or merchandise.

Do not alter our Trademarks. You may not change, alter or modify the appearance of our Trademarks by abbreviating them, incorporating them into acronyms, changing their spelling, using them in parts, changing their looks, or using improper capitalization.

Emergency 911 Policy

REQUESTING EMERGENCY SERVICES. NEXTIVA TERMS OF SERVICE

Welcome to NEXTIVA Broadband Phone Service.
THESE TERMS AND CONDITIONS STATE IMPORTANT REQUIREMENTS REGARDING YOUR USE OF NEXTIVA BROADBAND PHONE SERVICE. YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFO REGARDING YOUR RIGHTS AND OURS. PLEASE NOTE: NEXTIVA DOES NOT PROVIDE TRADITIONAL 911 SERVICES. YOU MUST MAINTAIN AN ALTERNATE MEANS OF REQUESTING EMERGENCY SERVICES

  1. 911 SERVICE & LIMITATIONS
    1. PLEASE READ THIS INFORMATION REGARDING 911 VERY CAREFULLY.
      1. 911 BACKGROUND: IN THE UNITED STATES, EMERGENCY SERVICE IS PROVIDED BY DIALING THE DIGITS “911.” WITH BASIC 911 SERVICE, WHEN YOU DIAL 911, LOCAL EMERGENCY OPERATORS ANSWERING THE CALL WILL NOT HAVE YOUR CALL BACK NUMBER OR YOUR EXACT LOCATION, SO YOU MUST BE PREPARED TO GIVE THEM THIS INFORMATION. UNTIL YOU GIVE THE OPERATOR YOUR PHONE NUMBER, HE/SHE MAY NOT BE ABLE TO CALL YOU BACK OR DISPATCH HELP IF THE CALL IS NOT COMPLETED OR IS NOT FORWARDED, IS DROPPED OR DISCONNECTED, OR IF YOU ARE UNABLE TO SPEAK. WITH ENHANCED 911 (E911) SERVICE, WHEN YOU DIAL 911, YOUR TELEPHONE NUMBER AND REGISTERED ADDRESS IS SIMULTANEOUSLY SENT TO THE LOCAL EMERGENCY CENTER ASSIGNED TO YOUR LOCATION, AND EMERGENCY OPERATORS HAVE ACCESS TO THE INFORMATION THEY NEED TO SEND HELP AND CALL YOU BACK IF NECESSARY. CERTAIN CUSTOMERS DO NOT HAVE ACCESS TO EITHER BASIC 911 OR E911 BECAUSE THERE ARE NO LOCAL EMERGENCY CENTERS IN THEIR AREA OR THEY DID NOT REGISTER FOR AN E911 SERVICE ADDRESS. IF YOU DO NOT HAVE ACCESS TO BASIC 911 OR E911, YOUR 911 CALL WILL BE SENT TO THE NATIONAL EMERGENCY CALL CENTER. A TRAINED AGENT AT THE EMERGENCY CALL CENTER WILL ASK FOR THE NAME, TELEPHONE NUMBER AND LOCATION OF THE CUSTOMER CALLING 911, AND THEN CONTACT THE LOCAL EMERGENCY CENTER FOR SUCH CUSTOMER IN ORDER TO SEND HELP.

        EXAMPLES OF SITUATIONS WHERE 911 CALLS WILL BE SENT TO THE NATIONAL EMERGENCY CALL CENTER INCLUDE WHEN THERE IS A PROBLEM VALIDATING A CUSTOMER'S ADDRESS DURING 911 ADDRESS REGISTRATION, OR THE CUSTOMER IS LOCATED IN AN AREA THAT IS NOT COVERED BY THE LANDLINE 911 NETWORK.

        EMERGENCY PERSONNEL DO NOT RECEIVE YOUR PHONE NUMBER OR PHYSICAL LOCATION WHEN YOUR 911 CALL IS ROUTED TO A NATIONAL EMERGENCY CALL CENTER. THEREFORE, YOU MUST BE PREPARED TO GIVE THE OPERATOR YOUR PHONE NUMBER AND LOCATION AND ANY OTHER INFORMATION THAT THE OPERATOR MIGHT REQUEST. BY SIGNING UP FOR NEXTIVA’S VOIP SERVICE YOU AUTHORIZE THE NATIONAL EMERGENCY CALL CENTER TO DISCLOSE YOUR NAME AND ADDRESS TO THE THIRD PARTY OR PARTIES INVOLVED WITH PROVIDING EMERGENCY SERVICES TO YOU, INCLUDING, WITHOUT LIMITATION, CALL ROUTERS, CALL CENTERS AND LOCAL EMERGENCY CENTERS.

    2. NEXTIVA’S BASIC 911 OR E911 SERVICE IS DIFFERENT THAN TRADITIONAL 911 LAND LINE SERVICE. CONSEQUENTLY, YOU MUST BE AWARE OF THE FOLLOWING:

      YOU MUST REGISTER YOUR LOCATION: FOR EACH PHONE LINE THAT YOU UTILIZE WITH NEXTIVA’S VOIP SERVICE, YOU WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION (“REGISTERED LOCATION”) OF YOUR EQUIPMENT (E.G., SIP PHONE, PHONE ADAPTER, ETC.) WITH NEXTIVA, EITHER ON NEXTIVA’S WEBSITE OR BY CALLING CUSTOMER SERVICE. YOU MUST REMEMBER TO UPDATE THE REGISTERED LOCATION WHENEVER THE PHYSICAL LOCATION CHANGES. NEXTIVA’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE REGISTERED LOCATION FOR THE ACCOUNT. ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY NEXTIVA WILL BE BASED UPON THE REGISTERED LOCATION PROVIDED TO NEXTIVA BY YOU. FOR PURPOSES OF 911 DIALING, YOU MAY ONLY REGISTER ONE REGISTERED LOCATION AT A TIME FOR EACH PHONE LINE.

      You acknowledge and understand that your failure to provide the current and correct physical address and location of your Equipment as the Service Address will result in any emergency calls you make being routed to the incorrect local emergency service provider. During the ordering process, you will provide NEXTIVA the physical address where you will use your Service. When you dial 911 with NEXTIVA, your call will be routed to the general telephone number for the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the Service Address you have registered with NEXTIVA. You acknowledge and understand that you may not be routed to a dispatcher who is specifically trained and designated to receive incoming emergency response calls, and it is possible that the lines at the PSAP will be occupied and that you will get a busy signal.

      1. YOUR E911 SERVICE WITH NEXTIVA WILL NOT BE AVAILABLE UNDER THE FOLLOWING CIRCUMSTANCES:

        (1) RELOCATION OF YOUR VOIP EQUIPMENT: IF YOU RELOCATE THE EQUIPMENT THAT YOU USE TO ACCESS NEXTIVA’S VOIP SERVICE, YOU MUST UPDATE YOUR REGISTERED LOCATION. IF YOU DO NOT UPDATE YOUR REGISTERED LOCATION, ANY 911 CALL YOU MAKE USING NEXTIVA’S VOIP SERVICE WILL BE ROUTED BASED ON YOUR PREVIOUSLY PROVIDED REGISTERED LOCATION AND THEREFORE MAY NOT BE ROUTED TO THE APPROPRIATE PUBLIC SAFETY ANSWERING POINT FOR YOUR CURRENT LOCATION. ONCE YOU NOTIFY NEXTIVA OF A CHANGE IN YOUR REGISTERED LOCATION, THERE MAY BE A DELAY IN MAKING THE NEW REGISTERED LOCATION AVAILABLE TO PROPERLY ROUTE 911 CALLS AND TO ADVISE EMERGNCY PERSONNEL OF YOUR REGISTERED LOCATION.

        (2) RE-REGISTRATION REQUIRED IF YOU CHANGE YOUR NUMBER OR ADD OR PORT NEW NUMBERS: YOUR NEXTIVA VOIP 911 SERVICE WILL NOT FUNCTION IF YOU CHANGE YOUR PHONE NUMBER OR IF YOU ADD OR PORT NEW PHONE NUMBERS TO YOUR ACCOUNT, UNLESS AND UNTIL YOU SUCCESSFULLY REGISTER YOUR LOCATION OF USE FOR EACH CHANGED, NEWLY ADDED OR NEWLY PORTED PHONE NUMBER AND RECEIVE CONFIRMATION FROM NEXTIVA.

        (3) INTERNET CONNECTION FAILURE: IF THERE IS AN INTERRUPTION OF YOUR BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE, YOU WILL NOT HAVE ACCESS TO NEXTIVA’S VOIP SERVICE DURING THAT INTERRUPTION AND THEREFORE WILL NOT HAVE ACCESS TO 911 SERVICE DURING THAT INTERRUPTION. IN ADDITION, SINCE THE SERVICE IS DEPENDENT ON THE BROADBAND CONNECTION, THE AVAILABILITY OF AN ADEQUATE POWER SUPPLY AND CORRECT EQUIPTMENT CONFIGURATION, NEXTIVA DOES NOT GUARANTEE THAT THE SERVICE WILL BE CONTINUOUS OR ERROR-FREE. NEXTIVA WILL NOT OFFER CREDITS FOR SERVICE FAILURES DUE TO POWER OUTAGES OR DISRUPTIONS IN YOUR BROADBAND CONNECTION.

        (4) EQUIPMENT FAILURE AND MISCONFIGURATION

        NEXTIVA’S VOIP SERVICE WILL NOT FUNCTION IF THE EQUIPMENT ON YOUR PREMISES OR ANY EQUIPMENT INCLUDING SOFTWARE, NETWORK ETC. IN OUR LOCATIONS (OFFICES, DATA CENTERS) FAILS FOR ANY REASON INCLUDING BUT NOT LIMITED TO HARDWARE OR SOFTWARE FAILURES OR MISCONFIGURATION EITHER BY NEXTIVA, THE CUSTOMER AND/OR ANY OF OUR VENDORS.

        NEXTIVA DOES NOT AND CANNOT GUARANTEE THAT THE SERVICE WILL BE CONTINUOUS OR ERROR-FREE. YOU ACKNOWLEDGE AND UNDERSTAND THAT A FAILURE OF EQUIPMENT CAN OCCUR AND IT IS YOUR SOLE RESPONSIBILITY TO RETAIN ALTERNATIVE MEANS OF COMMUNICATION.

        (5) LOSS OF ELECTRICAL POWER: NEXTIVA’S VOIP SERVICE WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER AND YOU WILL NOT HAVE PHONE SERVICE OR 911 SERVICE DURING ANY POWER OUTAGE.

        (6) NON-VOICE SYSTEMS: NEXTIVA’S VOIP SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS AND MEDICAL MONITORING EQUIPMENT. BY SIGNING UP FOR NEXTIVA’S VOIP SERVICE YOU WAIVE ALL CLAIMS AGAINST NEXTIVA FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY NEXTIVA’S VOIP SERVICE.

        (7) CALLS OUTSIDE THE U.S.: IF YOU MOVE YOUR NEXTIVA VOIP SERVICE EQUIPMENT OUTSIDE OF THE UNITED STATES, YOUR 911 SERVICE WILL NOT WORK. CHECK THE EMERGENCY CALLING PROCEDURES FOR THE COUNTRY WHERE YOU ARE LOCATED TO DETERMINE THE CORRECT EMERGENCY CALLING PROCEDURES.

        (8) TERMINATION OF SERVICE: 911 SERVICE WILL NOT BE AVAILABLE IF YOUR SERVICE HAS BEEN CANCELLED OR TERMINATED BY YOU OR BY NEXTIVA. You acknowledge and understand that a service outage due to suspension of your account as a result of billing issues or any other reason, including, but not limited to those reasons described elsewhere in this Agreement, will prevent ALL Service, including the limited emergency response service.

        (9) NETWORK CONGESTION AND/OR REDUCED SPEED FOR ROUTING EMERGENCY CALLS: You acknowledge and understand that calls made using the limited emergency response service of NEXTIVA may be subject to network congestion and/or reduced routing speed and the call may fail.

        (10) OTHER LIMITATIONS: THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING NEXTIVA VOIP SERVICE’S E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE NEXTIVA VOIP SERVICE E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE NEXTIVA NETWORK, THERE IS A POSSIBILITY THAT A NEXTIVA 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL TELEPHONE NETWORKS. IN ADDITION, A LOCAL OR NATIONAL DISASTER AND SUBSEQUENT SPIKE IN THE NUMBER OF CALLS MAY RESULT IN LONG CONNECTION TIMES, BUSY SIGNALS OR FAILURES TO CONNECT.

      2. YOU MUST NOTIFY ALL USERS OF THESE LIMITATIONS: YOU MUST INFORM ALL POTENTIAL USERS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE YOU UTILIZE NEXTIVA’S VOIP SERVICE OF THE IMPORTANT DIFFERENCES IN AND LIMITATIONS OF NEXTIVA’S VOIP 911 DIALING AS COMPARED WITH BASIC 911 OR E911 PROVIDED BY TRADITIONAL LANDLINE TELEPHONE SERVICE.
      3. YOU MUST AFFIX THE PROVIDED WARNING LABELS TO YOUR VOIP EQUIPMENT: NEXTIVA WILL PROVIDE YOU WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING (THE “911 STICKER”). YOU MUST PLACE ONE OF THESE 911 STICKERS ON EACH TELEPHONE AND ON ANY OTHER DEVICE WHICH WILL BE USED WITH YOUR NEXTIVA VOIP SERVICE. IF YOU REQUIRE ADDITIONAL 911 STICKERS, PLEASE CONTACT NEXTIVA’S CUSTOMER SERVICE DEPARTMENT.
      4. ALTERNATIVE ARRANGEMENTS: BY SIGNING UP FOR NEXTIVA’S VOIP SERVICE YOU UNDERSTAND THAT IF YOU ARE NOT COMFORTABLE WITH THE LIMITATIONS OF NEXTIVA’S 911 SERVICE, THAT YOU SHOULD ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING EMERGENCY SERVICE. IN ORDER TO ENSURE THAT YOU HAVE ACCESS TO EMERGENCY SERVICES, YOU ACKNOWLEDGE AND ACCEPT THAT IT IS YOUR SOLE RESPONSIBILITY TO PURCHASE, FROM A THIRD-PARTY SEPARATELY FROM NEXTIVA, TRADITIONAL WIRELESS OR LANDLINE TELEPHONE SERVICE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS. IF THE SERVICE IS USED IN A HOME OFFICE ENVIRONMENT, IT IS NOT INTENDED TO BE USED FOR PERSONAL, RESIDENTIAL, NONBUSINESS OR NONPROFESSIONAL COMMERCIAL USE. A HOME OFFICE USER MUST PROVIDE ALTERNATIVE ARRANGEMENTS FOR RESIDENTIAL EMERGENCY CALLS.

      YOU HEREBY ACKNOWLEDGE:

      (1) NEXTIVA DOES NOT SUPPORT TRADITIONAL 911 AND E911 ACCESS TO EMERGENCY SERVICES. The limited emergency response service accessible by NEXTIVA differs in a number of important ways from traditional emergency response services as further explained below. You agree to inform any potential users and other third persons who may be present at the physical location where the Service is utilized (whether home or office) as to the important limitations on emergency response service.

      (2) THE EMERGENCY RESPONSE SERVICE WILL NOT RECEIVE AUTOMATED NUMBER AND LOCATION IDENTIFICATION. You acknowledge and understand that when you call 911 using the Service, the local emergency personnel receiving your call will not be able to identify your phone number or the physical address from which you are calling. You will need to state the nature of your emergency promptly and clearly, including your telephone number and location. You acknowledge and understand that the individual answering the call may not be able to call you back or find your location if the call is unable to be completed, is dropped or disconnected, or if you are unable to tell them your phone number and physical location and/or if the Service is not operational for any reason, including without limitation those reasons listed elsewhere in this Agreement.

      (3) EMERGENCY CALLS FROM A LOCATION OTHER THAN YOUR SERVICE ADDRESS MAY NOT BE DIRECTED CORRECTLY TO A LOCAL EMERGENCY SERVICE PROVIDER. You acknowledge and understand that if you use your Equipment and the Service to call 911 from a location other than the Service Address that you have registered with NEXTIVA (e.g., if you move or use the Service while you are traveling), unless you have completed registration of such location as described in Section 6.e below, your call will not be routed to the correct local emergency service provider. The provider to whom any such 911 calls are routed will be unable to transfer the call to a local emergency service provider in the area from which you are calling.

    3. DISCLAIMER OF LIABILITY AND INDEMNIFICATION: YOU ACKNOWLEDGE AND UNDERSTAND THAT NEXTIVA WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING NEXTIVA OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH ABOVE. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS NEXTIVA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS WHO FURNISH SERVICES TO YOU IN CONNECTION WITH NEXTIVA’S VOIP 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. IN ADDITION, NEXTIVA DOES NOT HAVE ANY CONTROL OVER WHETHER, OR THE MANNER IN WHICH, CALLS USING NEXTIVA’S 911 SERVICE ARE ANSWERED OR ADDRESSED BY ANY LOCAL EMERGENCY RESPONSE CENTER. NEXTIVA DISCLAIMS ALL RESPONSIBILITY FOR THE CONDUCT OF LOCAL EMERGENCY RESPONSE CENTERS AND THE NATIONAL EMERGENCY CALLING CENTER. NEXTIVA RELIES ON THIRD PARTIES TO ASSIST US IN ROUTING 911 SERVICE CALLS TO LOCAL EMERGENCY RESPONSE CENTERS AND TO A NATIONAL EMERGENCY CALLING CENTER. NEXTIVA DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT. NEITHER NEXTIVA NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH NEXTIVA’S VOIP SERVICE MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE NEXTIVA 911 SERVICE UNLESS SUCH CLAIMS OR CAUSES OF ACTION AROSE FROM NEXTIVA’S GROSS NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT. YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS NEXTIVA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH NEXTIVA’S VOIP SERVICE, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY RELATING TO THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, INCLUDING 911 SERVICE, INCORRECTLY ROUTED 911 SERVICE CALLS, AND/OR THE INABILITY OF ANY USER OF THE SERVICE TO BE ABLE TO USE 911 SERVICE OR ACCESS EMERGENCY SERVICE PERSONNEL. THESE PROVISIONS SUPPLEMENT AND DO NOT LIMIT THE INDEMNIFICATION AND LIMITATION OF LIABILITY PROVISIONS CONTAINED IN NEXTIVA’S TERMS AND CONDITIONS.
    4. BY CLICKING BELOW YOU AFFIRM THAT YOU HAVE RECEIVED AND UNDERSTOOD THE ADVISORY ABOVE REGARDING THE LIMITATIONS OF NEXTIVA’S 911 SERVICE AND UNDERSTAND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR E911 CALLS AND FURTHER ACKNOWLEDGE AND ACCEPT THAT NEXTIVA’S VOIP SERVICE MAY NOT SUPPORT OR PROVIDE EMERGENCY SERVICE AT ALL TIMES.

Nextiva Acceptable Use Policy

  1. Definitions:
    1. "Service" – shall mean the products and services that are being provided to you as described in any quote or order form, including, but not limited to, Nextiva’s Unified Communication services, collaboration services, the Messaging Services, and any associated software, hardware or web-based platform. "Service" shall also include any additional Services provided to you as described in any addendum or amendment.
    2. "Device" – shall mean a Nextiva-provided telephone, telephone adapter ("Adapter"), router, or other Nextiva-provided device used with the Services.
    3. "Fax, SMS, or MMS Broadcasting" and "Fax, SMS or MMS Blasting" – shall mean sending the same message by fax, SMS, or MMS to six (6) or more recipients at the same time, one after another.
  2. Unlimited Services. Nextiva reserves the right to periodically review usage levels of any unlimited service plans, including, but not limited to, minutes, data, messages, and API calls ("Unlimited Plan(s)"), to ensure that you are not using such service in violation of this AUP and if such an abuse or violation is discovered to terminate or adjust the plan as appropriate. You agree to use the Unlimited Plan for services of a quantity or duration compa- rable to that of the average customer presently utilizing Nextiva’s services and will not employ methods, devices or procedures to take advantage of unlimited plans by using the services excessively or for means not intended by Nextiva. Excessive use is defined by Nextiva as use that substantially exceeds the average volume or duration of calls, data or messages used by all other Nextiva Unlimited Plan customers using the same service, or attempt- ing to originate or terminate multiple concurrent phone calls, faxes, or messages through any single line of service. The following types of services are specifically prohibited and may not be accessed through Nextiva’s unlimited voice service plan: conference calling, monitoring services, data transmissions, transmission of broad- casts or transmission of recorded material. Nextiva may terminate your service or change your service plan if, in its sole discretion, Nextiva determines that your use of the Unlimited Plan violates this prohibition or is otherwise "unreasonable" or results in abuse of the Unlimited Plan.
    1. We consider your use of our Service to be "unreasonable" and therefore subject to immediate termination if you:
      1. re-sell, re-brand, re-supply, re-market or commercially exploit our Unlimited Plans, without our written consent, in order to aggregate traffic from more than one customer over an "unlimited" line or trunk;
      2. set up routing functionality such that only outbound long-distance traffic is sent over the Unlimited Plan; or
      3. engage in any other conduct which is fraudulent, illegal, harassing or results in significant network conges- tion, or degradation.
    2. We consider your use of our Service to be "abusive" and subject to immediate termination or adjustment if you utilize:
      1. Autodialing, predictive-dialing, or robo-dialing.
      2. Continuous, repetitive or extensive call forwarding.
      3. Harassing, threatening or abusive calls, faxes or messages.
      4. Unsolicited calls, faxes or messages if such unsolicited activities could reasonably be expected to, or actually do in fact, provoke complaints.
      5. False information for you or any users of the Service.
      6. Continuous or extensive chat line or conference call participation.
      7. Free conference calling or similar services that participate in traffic simulation practices or schemes that result in excessive charges.
      8. Repetitive and/or continuous messaging or calling to the same destination number if such activity could reasonably be expected to, or in fact actually does, provoke complaints.
      9. Long duration calls (defined as calls to the same number in excess of four hours (continuous or cumulative) within a 24 hour period) and/or calls placed to specific numbers/destinations for the purpose of generating charges or fees for or with a third party.
      10. calls that do not consist of uninterrupted live human voice dialog by and between natural human beings.
      11. Continuous call session connectivity.
      12. Fax, SMS or MMS Broadcasting.
      13. Fax, SMS or MMS Blasting.
      14. Telemarketing. or
      15. Any other activity that would be inconsistent with reasonable personal, residential and business use patterns, causes network congestion or jeopardizes the integrity of Nextiva’s network.
    3. SHORT DURATION CALLS: Nextiva reserves the right to charge all short duration calls (calls under 10 seconds in length) a ten-cent (10¢) per call assessment if Nextiva determines, in its sole discretion, that you have an excessive volume (more than 10% of your total calls in any given month) of calls that consist of such short duration calls. You agree that calls, as defined herein for billing purposes, shall include all call traffic when accept- ed by Nextiva or its underlying carriers for termination whether such calls are terminated or not for any reason ("incomplete calls"). Nextiva will bill you for all calls completed to Nextiva’s facility or equipment or that of Nextiva’s underlying carriers regardless if the call is completed to the called party. Accordingly, you understand your obligations in regards to incomplete calls and agrees that Nextiva shall incur no liability as a result of or, in relation to, said incomplete call.
  3. Lawful purposes only. You may not use our Service or your Device in any way that is illegal, improper or inappropriate. A non-exhaustive list of examples of illegal, improper or inappropriate uses of our Service and/or Devices includes:
    1. Interfering with our ability to provide Service to you or other customers, or avoiding your obligation to pay for the Service within the time frame designated for payment.
    2. Use of the Service to threaten, abuse, harass, defame, deceive, defraud, interfere or invade another’s privacy or engage in any similar behavior.
    3. Use our Service or your Device for: auto-dialing; continuous, repetitive or extensive call forwarding, telemar- keting (including charitable or political solicitation or polling), fax or voicemail broadcasting or blasting.
    4. Use our Service or your Device to: impersonate another person; send bulk unsolicited messages; use robots, data mining techniques, or other automated Devices or programs to catalog, download, store, or otherwise reproduce or distribute information from our Service or use any automated means to manipulate our Service.
    5. Violate any law, rule, or regulation; violate any third party’s intellectual property or personal rights; or exceed your permitted access to our Service.
    6. Use the Service for transmitting or receiving any communication or material of any kind which would consti- tute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or encourage conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law.
  4. Right of Termination. In addition to Nextiva’s right to terminate any service for non-payment, Nextiva reserves the right to terminate the Service immediately and without advance notice if Nextiva, in its sole discre- tion, believes that you have violated any of the above restrictions, leaving you responsible for the full charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee and any penalties, all of which immediately become due and payable.
  5. Monitoring.We may monitor the use of our Service for violations of this agreement. We may, without liability, remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our Service, or Nextiva, its parent, affiliates, directors, officers, agents, and employees from harm.
    1. Providing information to authorities and third parties. If we believe that you have used our Service or your Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows: in response to law enforcement or other governmental agency requests; as required by law, regulation, rule, subpoena, search warrant, or court order; as necessary to identify, contact, or bring legal action against someone who may be misusing the Service, the Device, or both; to protect Nextiva’s rights and property; or in emergency situations where disclosure of such information is necessary to protect Nextiva customers or third parties from imminent harm.
    2. Use of Service and device by Customers Outside the United States. While Nextiva encourages use of the Service within the United States to other countries, Nextiva does not presently offer or support the Service to customers located in any countries other than the United States. Nextiva’s Services are only for use by persons or entities whose primary residence or business address is in the United States. Nextiva’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, Nextiva does not represent or warrant that use of the Service by you is permitted by any other jurisdic- tions or by any or all the ISPs. If you remove the device to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. Nextiva reserves the right to disconnect Services immediately if Nexti- va determines, in its sole and absolute discretion, that you have used the Service or the device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or device by any person making use of the Service or device provided to you.
    3. No Transfer of Service. You may not resell or transfer your Service or your Device or provide a telephone service to anyone else by using your Nextiva service or features of your Nextiva service without first obtaining our prior written consent.
    4. No Alterations or Tampering. If you copy or alter or have someone else copy or alter the firmware or software of the Device in any way that facilitates a compromise of your service, you are responsible for any charges that result. You may not attempt to hack or otherwise disrupt our Service or make any use of our Service that is inconsistent with its intended purpose.
    5. Theft of Service. You may not use or obtain our Service in any manner that avoids Nextiva policies and procedures, including an illegal or improper manner. You will notify us immediately in writing if your Device is stolen or if you believe that your Service is being stolen, fraudulently used, or otherwise being used in an unau- thorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of Service. If you fail to notify us in writing in a timely manner, we may disconnect your service and levy additional charges on you. Until you notify us in writing, you will remain liable for all use of our Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service up through the date notice is received by Nextiva.

VoIP Cancellation Policy

Cancellation Policy

You may cancel your NEXTIVA Service at any time by providing NEXTIVA with a notice of your intent to cancel by sending an email to service@NEXTIVA.com or calling our Customer Care Department at 1-800-983-4289.

  1. Money Back Guarantee. If you are unsatisfied with your NEXTIVA service for any reason in the first 30 days after your initial sign up, under the condition that you have not used over 50% of the allowed minutes in your metered subscription plan or 500 minutes in an unlimited plan, you did not receive a free device, and you are not subject to a minimum commitment contract, you may cancel and be eligible for a refund of equipment, activation and subscription fees. Shipping and handling charges are not refundable. Refunds for devices where an RMA was requested within the 30 day period will be made in full if the devices are in "returnable" condition and the device is returned within 7 days of the RMA date. Returnable condition requires the item to be in new condition, in the original packaging and all parts and documentation received. Return shipping is the customer responsibility.

    Our money back guarantee does not apply to customers who received a free device, minimum commitment contracts, any charges for international usage, payphone calls to NEXTIVA toll free numbers, and directory assistance. Our money back guarantee also does not apply to any renewals or add-on lines or services added after your initial order. In addition, we may not be able to refund all of the taxes that you paid. NEXTIVA will use commercially reasonable efforts to refund promptly any charges (less any amounts that you owe to us) to your account following the return of your device. If your device is not returned within 14 days from the RMA date, NEXTIVA will refund for all eligible charges except for the device charges. Once the device is returned, the device charges will be refunded less any applicable restock fee.

    A charge for the retail price of any device will be made to the customer's account if the device is not returned within 14 days of the RMA date.

    WE HAVE THE RIGHT TO REVOKE THE MONEY BACK GUARANTEE FOR ALL CUSTOMERS AT ANY TIME WITHOUT PRIOR NOTICE. The 30-Day Money Back Guarantee does not apply if you are found to be in violation of our terms of service or if you have taken advantage of the guarantee in the past.

  2. Termination After 30 Days. Upon termination of service after the initial 30 days, the termination will be effective on the last day of the current billing period in which notice of termination is given (not applicable to minimum commitment contracts). At any time, and for any reason, NEXTIVA may provide a refund, discount, or other consideration to a NEXTIVA customer ("Credit"). The amount and form of a Credit, and the decision to provide them, are at NEXTIVA's sole and absolute discretion. The provision of a Credit is one instance does not entitle you to a Credit in the future for similar instances, nor does it obligate Nextiva to provide a Credit in the future, under any circumstances. Equipment is not returnable or refundable after the 30-Day Money Back Guarantee period. Non-usage of service does not constitute cancellation of service nor does it extend the 30-Day Money Back Guarantee period.
  3. Minimum Commitments Contracts. In the event you signed up for a minimum commitment contract, in addition to any disconnect fee, you will be responsible for all charges for the entire minimum commitment period and authorize NEXTIVA to bill these fees to your payment method (credit card). The 30-Day Money Back Guar- antee does not apply to any executed minimum commitment contract.
  4. Porting. You may be able to take, or "port," your current number to another service provider. Once your port is completed through your new service provider, you must email service@NEXTIVA.com to cancel your NEXTIVA Service. Until you cancel service with NEXTIVA, you will remain a NEXTIVA customer, and you will continue to be responsible for all charges and fees associated with your Service. If you cancel your Service prior to completion of the port, your Service will not work and your number may not be available for porting. Your account must be active and in good standing in order to port out your number.

Updated: June 22, 2017

Fax Cancellation Policy

Cancellation Policy for NEXTIVA Fax Service You may cancel your NEXTIVA Fax Service at any time by providing NEXTIVA with a notice of your intent to cancel by sending an email to service@NEXTIVA.com or calling our Customer Care Department at 1-800-983-4289.

1.1 Money Back Guarantee. If you are unsatisfied with your NEXTIVA Fax Service for any reason in the first 30 days after your initial sign up, under the condition that you have not used over 50% of the allowed pages in your metered subscription plan or 500 pages in an unlimited plan, you did not receive a free device, and you are not subject to a minimum commitment contract, you may cancel and be eligible for a refund of equipment, activation and subscription fees. Shipping and handling charges are not refundable. Refunds for devices where an RMA was requested within the 30 day period will be made in full if the devices are in “returnable” condition and the device is returned within 7 days of the RMA date. Returnable condition requires the item to be in new condition, in the original packaging and all parts and documentation received. Return shipping is the customer responsibility.

Our money back guarantee does not apply to customers who received a free device, minimum commitment contracts, and any charges for page usage. In addition, we may not be able to refund all of the taxes that you paid. NEXTIVA will use commercially reasonable efforts to refund promptly any charges (less any amounts that you owe to us) to your account following the return of your device. If your device is not returned within 14 days from the RMA date, NEXTIVA will refund for all eligible charges except for the device charges. Once the device is returned, the device charges will be refunded less any applicable restock fee.

A charge for the retail price of any device will be made to the customer’s account if the device is not returned within 14 days of the RMA date.

WE HAVE THE RIGHT TO REVOKE THE MONEY BACK GUARANTEE FOR ALL CUSTOMERS AT ANY TIME WITHOUT PRIOR NOTICE.

The 30 Day Money Back Guarantee does not apply if you are found to be in violation of our terms of service or if you have taken advantage of the guarantee in the past.

1.2 After 30 Days. Following the first 30 days after initial sign up, you will not receive any refund or partial refund or any credits for charges already billed to your account in the month of cancellation, or any prepaid amounts paid under an annual plan. Activation fees, shipping fees and one-time fees are not eligible for any type of refund; only service fees are refundable as outlined in this agreement. Equipment is not returnable or refundable after the 30-Day Money Back period. Non-usage of service does not constitute cancellation of service nor does it extend the 30-Day Money Back Guarantee period.

1.3 Minimum Commitments Contracts. The 30-Day Money Back Guarantee does not apply to any executed minimum commitment contract. In the event you signed up for a minimum commitment contract, in addition to any disconnect fee, you will be responsible for all charges for the entire minimum commitment period and authorize NEXTIVA to bill these fees to your payment method (credit card).

1.3 Porting. You may be able to take, or "port," your current number to another service provider. Once your port is completed through your new service provider, you must email service@NEXTIVA.com to cancel your NEXTIVA Fax Service. Until you cancel service with NEXTIVA, you will remain a NEXTIVA customer, and you will continue to be responsible for all charges and fees associated with your NEXTIVA Fax Service. If you cancel your Service prior to completion of the port, your Service will not work and your number may not be available for porting. Your account must be active and in good standing in order to port out your number.

Nextiva SaaS Terms and Conditions

SIGNING UP FOR NEXTIVA’S SAAS SERVICE AND/OR NEXTIVA’S SAAS CONSULTING SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION, ANY APPLICABLE STATEMENT OF WORK AND THIS AGREEMENT. ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER, (3) YOUR EXECUTION OF A NEXTIVA SERVICE AGREEMENT OR ANY OTHER AGREEMENT INCORPORATING THESE TERMS AND CONDITIONS, (4) YOUR USE OF THE SERVICE DESCRIBED HEREIN, (5) YOUR REQUEST FOR OR RECEIPT OF CONSULTING SERVICES. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.

  1. INTRODUCTION. These Nextiva SaaS Terms and Conditions, together with any operating rules, policies, price schedules, service descriptions, statements of work, or other supplemental documents expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between Nextiva, Inc., an Arizona corporation (hereinafter referred to as “we,” “us” or “Nextiva”) and the party set forth in the related registration Order Form (hereinafter referred to as “you,” “user” or “Customer”) regarding Nextiva’s Service (as defined in Section 2.6 of this Agreement) and its provision of Consulting Services (as defined in Section 2.1 of this Agreement) related thereto, and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “Nextiva” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.
  2. DEFINITIONS.
    1. "Consulting Services" means the SaaS consulting services provided to you by us, which may include Standard Onboarding, Custom Services, Professional Services, training services, installation, integration or other consulting services that are related to the Service.
    2. "Custom Services" means customized professional SaaS consulting services, the scope of which is defined by a separate Statement of Work that outlines the specific tasks that Nextiva will undertake and the cost that you will pay for those services.
    3. "Documentation" means user manuals and other documentation relating to the Services, which are available to Customer by Nextiva accessible via the Internet or in the form of printed media.
    4. "Order" or "Order Form" or "Quote" means the Nextiva-approved form or online subscription process by which you agree to subscribe to the Service and/or purchase Professional Services or Custom Services. Most Orders are completed through our online quoting process. The Order may be referred to as a "Statement of Work" if you are purchasing Custom Services.
    5. "Professional Services" means professional SaaS consulting services, as described in the Service Description, that are related to the Service and that are provided by Nextiva to you for an additional fee.
    6. "Service" means the products and services that are being provided to you as described in any Quote or Order Form and made available online by us, including, but not limited to, Nextiva NextOS, collaboration services, Analytics, Customer Relations Management system, Cospace, and any associated software, hardware or web-based platform, as described in the Documentation. “Service” excludes Content and Third-Party Applications. “Service” shall also include any additional services provided to you as described in any addendum or amendment and some Consulting Services, if applicable.
    7. "Service Description" means the description of the Professional Services, as set forth on Nextiva’s website (https://nextiva.com/why-nextiva/professional-services-details.html).
    8. "Software" means any proprietary software owned by, licensed by, or which Nextiva has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Service.
    9. "Standard Onboarding" means the setup and/or implementation designed for, and included with, the Services you have purchased at no additional cost and described in the Standard Onboarding Form. Standard Onboarding excludes Custom Services and Professional Services.
    10. "Standard Onboarding Form" means the Order Form that describes the standard setup and/or implementations included with the Services you have purchased.
  3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing (except with regard to the Service during the term of a Minimum Commitment Contract) for the Service and/or Consulting Services. Notice of revisions to the Agreement or pricing shall be posted on the Nextiva Website (“the Website”) and deemed given and effective on the date posted to the Website. If you do not agree to the revision(s), you must terminate your Service and any Consulting Services immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service and/or Consulting Services after revision(s) are in effect, you hereby accept and agree to all such revisions.
  4. ELIGIBILITY.
    1. In order to use the Service, you must:
      1. Be at least eighteen (18) years old and able to enter into contracts;
      2. Complete the registration process;
      3. Agree to the Terms; and
      4. Provide true, complete, and up to date contact information.
    2. By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Nextiva may refuse service, close accounts of any users, and change eligibility requirements at any time.
  5. USE OF SERVICE.
    1. Business Plans. Service is provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Service to any other person for any purpose or make any charge for the use of the Service, without express written permission from Nextiva in advance. Nextiva reserves the right to immediately terminate or modify the Service if Nextiva determines, in its sole discretion, that you are using the Service for non-business or non-commercial use.
    2. Restrictions. You shall not: (a) copy or adapt the Software or the Service for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Service except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Service; (d) use the Software or Service in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third-party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Service.
    3. User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that Nextiva will be sending you information, including your Password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords.
    4. Use of Service by Customers Outside the United States. Nextiva does not presently offer or support the Service to customers located in countries other than the United States. You agree to indemnify us for any claims, damages or expenses resulting from your use of the Service outside of the United States. Nextiva reserves the right to disconnect Service or discontinue providing Consulting Services immediately if Nextiva determines, in its sole and absolute discretion, that you have used the Service in violation of applicable laws, including without limitation the laws of the United States and/or jurisdictions outside the United States. You are solely liable for any and all use of the Service by any person making use of the Service provided to you.
    5. Account Ownership. The owner of the account under which the Service is ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Service with Nextiva. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. Nextiva shall not adjudicate ownership-related disputes, or any other internal business dispute. If Nextiva is unable to determine the valid owner of the account, Nextiva reserves the right to suspend or terminate the account and Services.
  6. LENGTH OF SERVICE.
    1. Service Term. We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”), or the date we successfully process your payment, whichever is later. It is not the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order, as well as for any renewal terms as set forth in Section 6.2.
    2. Automatic Renewal. The Service will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional months, unless you cancel your Service by providing Nextiva with notice as provided in Section 6.4 of this Agreement at least thirty (30) days before the end of the then-current service term. Each renewal term begins on the day after the last day of the previous term. Any and all fees assessed to your account during the initial term and any renewal terms will be charged to your payment method on file, which may include any payment method automatically updated by your issuing bank. If you are paying by credit card and your credit card is declined, invalid, or payment is not timely made by the issuer of your credit card, without further notice Nextiva reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued for nonpayment.
    3. Our right to suspend. You understand and agree that Nextiva has the right to suspend or terminate any part of the Service generally at any time if:
      1. We determine or reasonably believe that you are violating, or violated, any applicable law;
      2. We determine or reasonably believe that you materially breached this Agreement;
      3. We determine or reasonably believe that you materially breached any other agreement between you and Nextiva;
      4. We determine or reasonably believe that you used fraudulent means to pay for the Service, including use of a fraudulent credit card;
      5. We determine or reasonably believe that you abused or harassed (verbally or otherwise) any Nextiva employee, contractor, agent or representative;
      6. We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
      7. You bring any legal action or proceeding against Nextiva, or participate in any class action lawsuit against Nextiva;
      8. A petition in bankruptcy is filed by or against you and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over you or your material assets;
      9. We determine that such action is necessary to protect maintain, or improve the Service, to prevent fraud or misrepresentation, to protect Nextiva, its customers or other third-party Nextiva affiliates, or for any other good cause;
      10. You violated the Nextiva VOIP Terms and Conditions; or
      11. It is otherwise contemplated by this Agreement.
    4. All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.

    5. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at service@Nextiva.com or by calling 1-800-983-4289 prior to expiration of the current service term. Please refer to the Nextiva Cancellation Policy posted on our Web site at https://www.nextiva.com/legal.html?doc=07.
  7. FEES AND CHARGES.
    1. We will publish fees and charges on our Web site. These fees and charges may change from time to time (except pricing will not change during the term of a Minimum Commitment Contract). New pricing will be effective the next day following posting to the Web site and may be applied to renewals of existing services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change introductory pricing.
    2. Billing increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
    3. Taxes. Customer is responsible for, and shall pay, any and all applicable federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription, use or payment for the Service, or the Consulting Services. Such amounts are in addition to payment for the Service and/or Consulting Services and will be billed to you. If Customer is exempt from payment of such taxes, you will provide Nextiva with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date Nextiva receives such certificate.
    4. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Nextiva Web site and vary by product and plan chosen.
    5. Reinstatement Fee. Reinstating any Service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.
    6. Returned Check Fee. Nextiva may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
  8. BILLING AND PAYMENT.
    1. Billing. We will charge you in advance for each term of service for the Service and any Professional Services or Custom Services that you order. If you have selected a free trial offering, we will commence charging you for the Service at the expiration of the free trial period, unless we are notified of the contrary. When you subscribe to the Service or order Custom Services, you must give us a valid email address and a payment method (credit card) that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. Fees may also include activation fees, porting fees, early termination fees ("ETF"), reinstatement fees, and returned check fees. We reserve the right to charge all fees to your payment method. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. Nextiva’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Nextiva’s rights to collect any amount due. Nextiva may terminate the Services and this Agreement and may discontinue providing Consulting Services for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
    2. Payment. You authorize us to collect any and all fees related to the Service and any Professional Services or Custom Services that you order from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method. Fees for Professional Services or Custom Services must be paid in full prior to your receipt of said services.
    3. Collection. If we disconnect the Service or discontinue the Consulting Services, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
    4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
    5. Billing Disputes. You must notify Nextiva in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any Nextiva charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: billing@Nextiva.com. Nextiva will charge a late fee as described in Section 8.1 for a disputed amount if (1) it was not paid by the due date and (2) Nextiva determines that you disputed the charge in bad faith.
    6. Incidental Expenses. You agree to reimburse Nextiva for reasonable travel, administrative, and out-of-pocket expenses incurred in connection with the Consulting Services, including without limitation reasonable travel, lodging, meals and telephone expenses (the “Incidental Expenses”). You agree that Nextiva may charge your payment method for the Incidental Expenses. Nextiva reserves the right to separately invoice you for these expenses, which invoice (if not charged to your payment method) will be due upon receipt.
  9. PRICING AND PAYMENT.
    1. Prices and Fees. Nextiva fees and charges for the Service, Custom Services and Professional Services are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay all applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, shipping and handling and other nonrecurring charges will be charged to your credit card. Recurring charges will be billed and automatically charged to your credit card on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 6.1.
    2. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD (IF APPLICABLE) FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. If you are paying with a credit card, you agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. If your issuing bank automatically provides us with an updated credit card, you agree that we may charge this new credit card for all amounts due to us without additional notice or consent. You also agree to indemnify us for any claims, damages or expenses resulting from providing a debit card instead of a credit card (if applicable). If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service and will not receive Consulting Services until your account is paid in full.
    3. Credit Terms. All Services provided to you and covered by the Agreement shall at all times be subject to credit approval or review by Nextiva. You will provide such credit information or assurance as is requested by Nextiva at any time. Nextiva, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
    4. Discontinuation of Service for Nonpayment. The Service and any Consulting Services provided to you may be denied or discontinued without notice at any time in the event you fail to make a payment, your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your payment method fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide Nextiva your payment method including credit card information, if applicable. If the payment method issue is not resolved within 48 hours, Nextiva will deactivate the Service and will cease providing Consulting Services. If your new payment method is approved within 24 hours, your calling plan and billing cycle will remain unchanged. We reserve the right to modify the per minute calling plan at any time. You agree to pay all charges owed to Nextiva, including but not limited to the reinstatement fee for reactivated services. In the event Nextiva utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys’ fees.
    5. Promotions. Nextiva may limit the number of promotions you may be eligible for in a given period. Promotions may be cancelled by Nextiva at any time.
    6. Cancellation Policy. Nextiva cancellation policies are outlined in the Cancellation Policy posted at our Web site at https://www.nextiva.com/legal.html?doc=07 and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to service@Nextiva.com or by calling our Customer Care Department at 1-800-983-4289 and must be made at least thirty (30) days prior to the expiration of the then-current Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and are effective the day following the posting of the updated Cancellation Policy to our Web site.
  10. CONSULTING SERVICES.
    1. Consulting Services. Custom Services and Professional Services (“Purchased Consulting Services”) may be purchased by placing an Order with us. All Purchased Consulting services will be subject to the terms of this Agreement.

      If you purchase Professional Services, Nextiva agrees to deliver to you the services described in the Service Description, subject to your payment of all applicable fees. Nextiva reserves the right to change or modify the Service Description, including its pricing at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers.

      If you purchase Custom Services, Nextiva agrees to deliver to you the services described in the separate Statement of Work between you and Nextiva, subject to your payment of all applicable fees.

      Fees for these Purchased Consulting Services are in addition to any fee charged for the Service. If your Purchased Consulting Services are recurring, they will be considered part of your subscription and will renew with your Service, as set forth in Section 6.2 of this Agreement.

      If there are a specific number of hours included with the Purchased Consulting Services, those hours will expire as indicated in the applicable Service Description or Statement of Work, which expiration period will commence upon purchase (the “Expiration Period”). You agree that, if additional service hours above and beyond the hours included with the Purchased Consulting Services are performed, you will pay to Nextiva, immediately upon invoice, the prevailing hourly overage rate (as set forth in the applicable Service Description or Statement of Work), for each hour, or fraction of an hour, of service provided to you by Nextiva in excess of the included, unexpired hours. You agree that Nextiva may charge your payment method for any excess hours.

      If there are deliverables that Nextiva agrees to perform for a fixed fee included in the Purchased Consulting Services, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If the Purchased Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Purchased Consulting Services will be deemed to be complete at the end of the Delivery Period, unless otherwise agreed in writing by Nextiva. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Purchased Consulting Services.

      We might provide some or all elements of the Consulting Services through third-party service providers. Consulting Services are non-cancellable and all fees for Purchased Consulting Services are non-refundable.

    2. Delivery. Unless otherwise agreed in writing by Nextiva, all Consulting Services, including any Purchased Consulting Services, will be delivered to you remotely and will include telephonic and remote access consulting services and coordination for the Service. Nextiva shall determine, in its sole discretion, the manner and means by which the Consulting Services shall be performed. Nextiva shall determine: (a) the appropriate location, place, and time of such performance; (b) the equipment and tools that shall be used in connection with such performance; and (c) the personnel and staffing (including without limitation employees or third-party subcontractors) that shall be used for such performance.
    3. Third-Party Products and Services. The Consulting Services do not include warranty, repair, technical or troubleshooting service or any other service for third-party products, software or services. Where applicable, Nextiva may act as a facilitator between you and a third-party vendor to obtain third-party support service or support that you may be entitled to receive pursuant to your agreements with those vendors. You are solely responsible for any costs associated with third-party services that you obtain, and you agree to indemnify and hold Nextiva harmless for any claims related to those third-party products, software or services.
    4. Supported Software. Nextiva may, in its sole discretion, require you to maintain software at Nextiva-specified minimum release level or configurations. You further understand and agree that you must install software patches, updates or subsequent releases as directed by Nextiva to keep your systems eligible for the Consulting Services.
    5. Exclusions. The Consulting Services do not cover or include: (1) VoIP services, except where specified in the Service Description, Statement of Work or in writing by Nextiva; (2) equipment and accessories, including equipment obtained from or through Nextiva; (3) vFAX services; or (4) any services not explicitly listed in the Service Description, Statement of Work, or Standard Onboarding Form. Further, Nextiva shall in no event be required to do any of the following: (a) anything that could, in Nextiva’s reasonable discretion, endanger its personnel, agents, or others; (b) perform the Consulting Services outside the United States or in any language other than English; (c) configure end-point IP devices that Nextiva has not expressly certified as compatible with the Service; (d) move any furniture, equipment, or other material heavier than forty (40) pounds; (e) transport Customer equipment or other materials (including telephones) to, from, or between areas or sites; (f) perform the Consulting Services outside of regular business hours (Monday through Friday 8 am to 5 pm local time, excluding holidays), unless otherwise agreed to in writing by Nextiva; (g) make changes to Customer’s network; or (h) implement anything other than the Consulting Services agreed to by Nextiva. Customer acknowledged and agrees that in the event that Nextiva elects, in its sole discretion, to implement and/or provision uncertified devices, such provisioning may be unsuccessful, cause delays, and/or require changes to the implementation timeline.
    6. Customer Responsibilities.
      1. You agree to follow the instructions Nextiva provides and where applicable, before you ask Nextiva to provide the Consulting Services you agree to follow the problem determination, problem analysis, and service request procedures that Nextiva provides.
      2. You agree to cooperate with Nextiva to see to it that the Consulting Services are successfully completed.
      3. You agree to allow Nextiva reasonable access to your computers, servers, or other data that Nextiva deems, in its sole discretion, necessary to perform the Service, and you represent and warrant to Nextiva that you have obtained permission for both you and for Nextiva to access and use such computers, servers and data. If you have not already obtained such permission, you agree that you will obtain it, at your expense, before you ask Nextiva to perform the Consulting Services.
      4. You agree to make available, in a timely manner, all technical data, facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by Nextiva and to provide services and access to equipment and all supporting infrastructure, including network connectivity and power supply requirements that Nextiva may reasonably require for the performance of the Consulting Services.
      5. In order to receive the Consulting Services, you must fulfill all customer responsibilities detailed in this Agreement, the Service Description, and the Statement of Work. Please read and understand all of your obligations. If you fail to fulfill each of the customer responsibilities, Nextiva will not be obligated to perform the Consulting Services, or there may be an additional charge for the Consulting Services.
      6. You understand and agree that Nextiva is not responsible for any lost or corrupted software or data. Nextiva strongly recommends that you maintain a complete data backup and disaster recovery plan.
      7. Cooperation. You will cooperate reasonably and in good faith with Nextiva in Nextiva’s performance of the Consulting Services by, without limitation:
        1. Allocating sufficient resources and timely performing any tasks reasonably necessary to enable Nextiva to perform the Consulting Service;
        2. Timely delivering any materials and other obligations required under this Agreement;
        3. Timely responding to Nextiva’s inquiries related to the Consulting Services;
        4. Assigning an internal project manager or equivalent to serve as a primary point of contact for Nextiva. This person shall have the technical background sufficient to effectively perform requirements for data gathering and design and to reasonably assist with Nextiva’s performance of the Consulting Services, including, but not limited to, the generation of the scope of the Consulting Services and the implementation timeline;
        5. Actively participating in scheduled project meetings;
        6. Providing, in a timely manner and at no charge to Nextiva, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to Customer’s appropriate and knowledgeable employees and agents, and continuous administrative access to Customer’s Online Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Nextiva; and
        7. Complete, accurate and timely information, data and feedback all as reasonably required.
        8. If Customer requires the Nextiva staff providing the Consulting Services to undergo specified training or education prior to or during the course of the provision of the Consulting Services, Customer shall pay any and all costs associated with said training and/or education, including, but not limited to, any program fees, materials, and travel expenses.
      8. Your Responsibilities for Consulting Services Provided Onsite. All Consulting Services shall be performed remotely, unless agreed in writing by Nextiva. If the Consulting Services will be performed onsite at a location designated by you, such onsite visits must include budgeted travel and expenses, unless otherwise approved in advance by Nextiva. The following responsibilities apply to Customers who are receiving Services onsite:
        1. Safe Work Environment. Customer shall maintain and ensure a safe working condition on all sites visited by Nextiva personnel in connection with this Agreement and shall promptly inform Nextiva of any hazardous conditions at any such site prior to any visit by Nextiva personnel. Customer is not required to perform any equipment, resources, or system or network configuration change that Nextiva recommends however, Customer acknowledged and agrees that failure to do so could prevent or impede Nextiva’s performance of the Consulting Services or result in performance issues.
        2. Customer Site Information. At least fifteen (15) days prior to a site visit or as otherwise agreed in the Statement of Work, Customer’s project manager shall provide to Nextiva’s project manager the following information for the site to be visited: (a) In Microsoft Excel format, the first and last name, extension number, and email address of each User for which the services described in the Statement of Work are to be implemented at the site and any other information required to configure the services; (b) written or illustrated diagrams of dial plans and data and call flows; (c) information related to configurations, equipment, and deployment requirements for the site, as requested by Nextiva; and (d) the name and contact information for both a primary and backup contact for the site.
        3. Customer Network. Customer acknowledges and agrees that the Consulting Services require a high-performance network and broadband Internet connection for optimum performance, and that anything less may result in undesirable performance of the Service and/or Consulting Services. Customer shall, prior to each site visit, perform network readiness testing at the site and shall ensure that the network and broadband Internet services and connection for that site are configured and ready for transporting toll-quality voice.
        4. Customer Site Responsibilities. Customer shall be responsible for providing Nextiva with access to Customer’s system administrators and other personnel relevant to the implementation of the Consulting Services during each site visit.
  11. ACCEPTABLE USES OF THE SERVICE.
    1. Legal Compliance. You represent and warrant that you will comply with all laws and regulations applicable to your use of the Service.
    2. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Service:
      1. You may not purchase, use, or access the Service for the purpose of building a competitive product or service or for any other competitive purposes.
      2. You may not misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
      3. You may not circumvent or attempt to circumvent any limitations that Nextiva imposes on your account.
      4. Unless authorized by Nextiva in writing, you may not probe, scan, or test the vulnerability of any Nextiva system or network.
      5. Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
      6. You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
      7. You may not engage in abusive or excessive usage of the Service, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Service for other users.
      8. You may not use the Service to infringe the intellectual property rights of others, or to commit an unlawful activity.
      9. Unless authorized by Nextiva in writing, you may not resell or lease the Service.
      10. If your use of the Service requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Nextiva has agreed with you otherwise. You may not use the Service in a way that would subject Nextiva to those industry-specific regulations without obtaining Nextiva’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations).
      11. You may not register accounts by “bots” or other automated methods.
      12. Your Content and use of the Services may not violate our Nextiva Platform Privacy Policy or Rules listed below.
  12. RULES AND ABUSE.
    1. General Rules. You promise to follow these rules:
      1. Nextiva has a zero-tolerance spam policy. This means that all email recipients must have opted in to, or otherwise validly consented to, receiving communications from you, the sender. Subscriber accounts may be terminated for sending unsolicited email messages. By “spam,” we mean the definition on the Spamhaus website.
      2. You will not use purchased, rented, or third-party lists of email addresses.
      3. Nextiva does not allow accounts with the primary purpose of promoting or inciting harm towards others or the promotion of discriminatory, hateful, or harassing content. To this end, we may suspend or terminate your account if you send an email campaign, submit an advertisement or otherwise distribute any content that we determine, in our sole discretion, contains either of the following:
        1. A Threat of Physical Harm. This means any statement, photograph, advertisement, or other content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
        2. Hateful Content. This means any statement, image, photograph, advertisement, or other content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.
      4. We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:
        1. An organization which has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm.
        2. A person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm.
        3. A person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.
      5. If you violate any of these rules, then we may suspend or terminate your account.
  13. PCI COMPLIANCE.
    1. PCI Standards. If You use the Service to accept payment card transactions, you must comply with the Payment Card Industry Data Security Standards (PCI-DSS) to the extent they are applicable to your business (the “PCI Standards”). Nextiva provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant and the specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Service.
    2. Cardholder Data. Nextiva is responsible for the security of Cardholder Data that is collected, transmitted, stored, or processed by us on your behalf. “Cardholder Data” is defined as a cardholder’s primary account number, and where a full unmasked card number is present, any of the cardholder name, expiration date, and/or service code. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROHIBITED FROM COLLECTING OR ENTERING CARDHOLDER DATA INTO ANY FORM OR DATA ENTRY FIELDS IN THE SERVICE, EXCEPT INTO THOSE FIELDS INTENDED SOLELY FOR THAT PURPOSE (i.e. where Nextiva explicitly enables such data to be entered into such fields). Appropriate fields are clearly marked with labels such as ‘Card number’ or by having a credit card icon precede them. Similarly, excluding payment forms, you must never collect or enter any “Sensitive Authentication Data”, as defined by the PCI Standards (including CVC or CVV2) into any fields in the Services. You assume all responsibility for any Cardholder Data entered into the Services in violation of these terms.
  14. ACCESSING THIRD-PARTY APPLICATIONS INTEGRATED WITH THE SERVICE. Many third-party applications (hereinafter “Third-Party Application(s)”) are integrated with the Service. In the future, Nextiva may also be integrating more Third-Party Applications with the Service. Access and use of Third-Party Applications may require acceptance of terms of service and privacy policy applicable to such Third-Party Applications (hereinafter “Third-Party Terms”). You are responsible for reading and understanding the Third-Party Terms before accessing or using any Third-Party Application.
  15. ACCOUNT MANAGEMENT.
    1. Account and Password. You are responsible for keeping your account name and password confidential. You are also responsible for any account that you have access to, whether or not you authorized the use. You will immediately notify us of any unauthorized use of your accounts. We are not responsible for any losses due to stolen or hacked passwords. We do not have access to your current password, and for security reasons, we may only reset your password.
    2. Account Information Accuracy. Nextiva occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
    3. Backup Content. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Nextiva will not be liable for any failure to store, or for loss or corruption of, your Content.
    4. Authorizations. Customer shall provide Nextiva, at no cost to Nextiva, all permissions, consents or authorizations necessary to activate, maintain, inspect, and repair the products and/or Services, including (if applicable) the right to access and enter Customer’s Account.
  16. ACCOUNT DISPUTES. We do not know the inner workings of your organization or the nature of your personal relationships, and we do not arbitrate disputes over who owns an account. You will not request access to or information about an account thatis not yours, and you will resolve any account-related disputes directly with the other party. We decide who owns an account based on the content of the emails in that account, and if multiple people or entities are identified in the content, then we will rely on the contact information listed for that account. You agree that we are not liable for any damages arising out of or otherwise related to any account-related dispute.
  17. WARRANTIES.
    1. NEXTIVA MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. NEXTIVA DOES NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEXTIVA DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
    2. Nextiva warrants that the Consulting Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy and Nextiva’s entire liability will be the re-performance of the applicable Consulting Services. If Nextiva is unable to re-perform the Consulting Services as warranted, Customer will be entitled to recover the fees paid to Nextiva for the deficient Consulting Services. Customer must make any claim under the foregoing warranty to Nextiva in writing within ninety (90) days of performance of such Consulting Services in order to receive warranty remedies. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES RELATED TO THE PURCHASED CONSULTING SERVICES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES RELATED TO THE CONSULTING SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  18. LIABILITY.
    1. LIMITATION OF LIABILITY. IN NO EVENT SHALL NEXTIVA BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE OR THE CONSULTING SERVICES, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, AND/OR THIS AGREEMENT. NOR SHALL NEXTIVA BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE OF THE CONSULTING SERVICES, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO NEXTIVA OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND NEXTIVA’S CONTROL. NEXTIVA SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXTIVA’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NEXTIVA’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. NEXTIVA’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT NEXTIVA WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE NEXTIVA FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
    2. INDEMNIFICATION AND WAIVER OF CLAIMS.
      1. INDEMNIFICATION. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE AND/OR THE CONSULTING SERVICES, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. FURTHER, EXCEPT TO THE EXTENT OF NEXTIVA’S PERSONNEL’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS NEXTIVA AND NEXTIVA PERSONNEL FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY FEES, ARISING FROM OR RELATING TO ANY PERSONAL INJURY OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION ANY EQUIPMENT, DEVICE, NETWORK, SYSTEM OR STRUCTURE) OCCURRING DURING ANY VISIT BY NEXTIVA OR ANY REPRESENTATIVE, PERSONNEL, OR AGENT OR THEREOF TO ANY SITE; OR RESULTING OR ARISING FROM ANY CLAIM, ACTION, ALLEGATION, DEMAND, OR PROCEEDING BY OR ON BEHALF OF ANY WORKFORCE MEMBER, CONTRACTOR, AGENT, REPRESENTATIVE, OR INVITEE OR CUSTOMER.
      2. SECTION 18.2.1 SHALL SURVIVE THE AGREEMENT.
    3. Attorney Fees and Costs. If we file an action against you claiming you breached these Terms and we prevail, you agree that we shall be entitled to recover all attorney fees, taxable and non-taxable costs (including, but not limited to expert witness fees and arbitration costs), as well as any damages or other relief we may be awarded.
    4. Equitable Relief. If you violate these Terms then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
    5. Subpoena Fees. If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
  19. MISCELLANEOUS LEGAL CONSIDERATIONS.
    1. Governing Law. This Agreement and the relationship between you and Nextiva shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropriate state or federal court located in Maricopa County, Arizona.
    2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. Nextiva reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly. All determinations by Nextiva under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
    3. No Third-Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third-party beneficiary rights.
    4. Entire Agreement. This Agreement, the Order, the applicable service description, or any reference herein to the content of Nextiva’s websites constitute the entire agreement between you and Nextiva and govern your use of the Service, superseding any prior agreements between you and Nextiva and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or Nextiva unless they are agreed to in writing by both parties.
    5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
  20. DISPUTE RESOLUTION AND BINDING ARBITRATION.
    1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
    2. Arbitration. Nextiva and you agree to arbitrate any and all disputes and claims between you and Nextiva except as set forth in Section 20.9 of this Agreement. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and Nextiva, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “Nextiva,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and Nextiva.
    3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you agree to first contact the Nextiva Customer Care Department at (800) 983-4289 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
    4. Formal Notice of Disputes. If you intend to seek arbitration you must first send Nextiva a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute must be sent to Nextiva, attention “General Counsel,” by certified mail addressed to 8800 E. Chaparral Road, Scottsdale, AZ 85250.
      1. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and Nextiva do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or Nextiva may commence an arbitration proceeding. The amount of any settlement offer made by you or Nextiva shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Nextiva is entitled.
    5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at AAAUniversity@adr.org, or by mail at 2415 E. Camelback Rd., Suite 700 Phoenix, AZ 85016. The arbitration shall be governed by the AAA’s Commercial Arbitration Rules (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
    6. Waiver of Jury Trial. You and Nextiva agree that, by entering into this agreement, you and Nextiva are waiving the right to a trial by jury.
    7. Waiver of Class Actions. You and Nextiva agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Nextiva agree that you and Nextiva may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and Nextiva agree that, unless you and Nextiva agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
    8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
    9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that: (a) with respect to claims for unpaid invoices we may bring a claim for amounts due and owing to Nextiva in a court of competent jurisdiction in Maricopa County, Arizona; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or Nextiva, pending the completion of arbitration.
    10. Modification of Arbitration. If Nextiva makes any substantive change to this arbitration provision, you may reject any such change by sending Nextiva written notice within 30 days of the changes to the address provided in Section 20.4. By rejecting any change, you agree to adhere to the language in this provision. If you fail to timely reject a change to these arbitration provisions, you agree to be bound by any change that Nextiva may, in its discretion, make to these provisions.
    11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by an arbitrator located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.
    12. Arbitration Costs. You agree that all administrative fees and arbitrator costs (the “Arbitration Costs”) shall initially be borne in accordance with the AAA Rules. If the division of the Arbitration Costs is not set forth in the AAA Rules then in effect, you agree that the Arbitration Costs, including any required deposits, will initially be paid equally by you and Nextiva. You further agree that the arbitrator shall award the prevailing party in any arbitration proceeding the recovery of its share of the Arbitration Costs against the non-prevailing party. You and Nextiva agree that the failure or refusal of a party to pay its required share of any deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present any evidence or cross-examine witnesses, and a waiver of that party’s claims, if any.
  21. PRIVACY. Nextiva Service utilizes, in whole or in part, the public Internet and third-party networks. You acknowledge and understand that Nextiva cannot guarantee that the Service is completely secure. You agree that Nextiva may access all features of your account and the Service to determine whether the Service is being used fraudulently and/or in violation of this Agreement, and for any other purposes. YOU AGREE THAT NEXTIVA SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. Nextiva is committed to respecting your privacy relating to personally identifiable information. Once you choose to provide personally identifiable information, it will only be used in the context of your relationship with Nextiva. Nextiva will not sell, rent, or lease your personally identifiable information to others. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Nextiva may disclose personally identifiable information. Please refer to our Privacy Policy for additional information.
  22. CONTENT.
    1. Privacy of Content. In the course of using the Services, you may submit content to Nextiva or directly through the Service (including your personal data and the personal data of others) or third parties may submit content to you through the Services (all of the above will be referred to as your “Content”). You in turn agree that Nextiva may use and share your Content in accordance with the Nextiva privacy policies and applicable data protection laws.
    2. Confidentiality. Confidentiality. Nextiva will treat your Content as confidential information and only use and disclose it in accordance with this Agreement (including the Nextiva Platform Privacy Policy). However, Your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of this Agreement by Nextiva); (b) was lawfully known to Nextiva before receiving it from You; (c) is received by Nextiva from a third party without knowledge of breach of any obligation owed to You; or (d) was independently developed by Nextiva without reference to your Content. Nextiva may disclose your Content when required by law or legal process, but only after Nextiva, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
    3. Security. Nextiva will store and process your Content in a manner consistent with industry security standards.
    4. You Retain Ownership of Your Content. You retain ownership of all of your intellectual property rights in your Content. Nextiva does not claim ownership over any of your Content. This Agreement does not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Service, and as otherwise described in this Agreement.
    5. Limited License to Your Content. You grant Nextiva a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Service or Consulting Services to you and as otherwise permitted by the Nextiva privacy policies. This license for such limited purposes continues even after you stop using our Service, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Nextiva’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Service and/or Consulting Services to you. If you provide Nextiva with feedback about the Service, we may use your feedback without any obligation to you.
    6. Customer Lists. Nextiva may identify you (by name and logo) as a Nextiva customer on our website and on other promotional materials. You hereby grant Nextiva an irrevocable, non-exclusive, royalty free license to utilize your name, trademark(s), trade name(s) and other intellectual property for this limited purpose and as otherwise agreed by you in writing.
    7. Liability Related to Content. You are liable for all liability that may arise from the Content you transmit to any person, whether or not you authorize it, using the Service. You promise that you and anyone who uses the Service and all your and their Content comply at all times with all laws, regulations, and written and electronic instructions for using the Service.
  23. COMPLIANCE WITH LAWS. You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we will not be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
  24. EXPORT COMPLIANCE. You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
  25. ASSIGNMENT. Nextiva may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Service and/or Consulting Services without our prior written agreement.
  26. SURVIVAL. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
  27. CALEA. Nextiva intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, you hereby agree and consent to Nextiva’s right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
  28. FORCE MAJEURE (EVENTS BEYOND NEXTIVA’S CONTROL). Nextiva shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of Nextiva’s best efforts.
  29. INTELLECTUAL PROPERTY. Neither this Agreement nor your use of the Service grants you ownership in the Service or the content you access through the Service (other than your Content).
  30. SOFTWARE COPYRIGHT Any software used by Nextiva to provide the Service and/or Consulting Services and any software provided to you in conjunction with providing the Service and/or Consulting Services is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Service.
  31. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE. Our Web site content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.

Updated: February 28, 2020

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