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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 Delaware 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 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). Notice of revisions to the Agreement shall be posted on the Nextiva Website ("the Website") and deemed given and effective on the date posted to the Website. Pricing is also subject to change at any time (except during the initial term of a Minimum Commitment Contract such as a Nextiva Service Agreement), with or without notice. Any pricing adjustment will be reflected in an invoice provided to you at the time of the pricing adjustment for your account. If you do not agree to a revision or pricing change, you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service after revision(s) and/or pricing changes are in effect, you hereby accept and agree to all such revisions and/or pricing changes.
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.
   8. Multi-Location Accounts. Nextiva may allow you to set up Services to multiple locations and/or sub-accounts under your account.  You understand that users on an account containing multiple locations or sub-accounts may be able to access data from or regarding other locations or sub-accounts under that account.  This data may include, but is not limited to, customer proprietary network information (CPNI), personally identifiable information (PII) and/or protected health information (PHI).  Further, users of an account containing multiple locations or sub-accounts may be able to add or remove Services at other locations or sub-accounts.  By accepting a quote(s) or other agreement providing for multiple locations or sub-accounts, you acknowledge the aforementioned service feature, and you agree to indemnify us for, and hold us harmless from, any claims, damages or expenses resulting from access by your users from one location or sub-account to other locations or sub-accounts on your account.
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/legal.html?doc=05. YOUR SERVICE WILL NOT BE ACTIVATED UNTIL NEXTIVA RECEIVES AN AFFIRMATIVE ACKNOWLEDGMENT THAT YOU HAVE READ AND UNDERSTOOD NEXTIVA’S 911 DISCLOSURE AGREEMENT.
      1. You must provide us with a valid address that is compatible with our e911 system. If you are unable to provide a valid address, or we are unable to confirm that the address provided is a valid address in our e911 system, then we won’t be able to provide you with service and we reserve the right to terminate your account.
   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.
   6. Substitution and Discontinuation of Services. Nextiva may, in its sole discretion, discontinue or substitute any service, feature or functionality without your prior approval. If Nextiva discontinues a service, feature or functionality, or fails to substitute a service, feature or functionality with an equivalent service, feature or functionality, then upon your written request, Nextiva will reduce the fees assessed to your account by the amount that you specifically pay for any such discontinued or substituted service, feature or functionality. Notwithstanding the foregoing, Nextiva may include with or add to your account certain services, features and/or functionalities on a trial, temporary or otherwise limited basis.  Nextiva reserves the right to discontinue any such services, features and/or functionalities without notice and without compensation to you, and/or to charge you a fee as a condition of your continued use of any such services, features and/or functionalities.
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”). 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. The Service will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional months or initial or renewal term extensions, unless you cancel your Service by providing Nextiva with notice as provided in Section 8.5 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 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.
   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.
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 money back 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 Customer by Nextiva or Nextiva agents or any other third-party with or without a separate charge or fee in connection with the Services.
   3. Section 9.1 above will not apply to Rented Devices.
      Unless otherwise agreed upon, Customer agrees that within thirty (30) days after the expiration of the Term of any Device Rental Agreement or termination of this Agreement, Customer will promptly return all Rented Devices to Nextiva. Customer 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.
      Customer 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.
   4. 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.
   5. 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.
   6. 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.
   7. 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.
   8. Prohibited Devices. You are prohibited from using the Services with any devices other than Nextiva-approved devices received from retailers or from us.
   9. All Headset Sales Are Final. Headsets, earpieces, in-ear monitors, microphones and similar devices are not eligible for return or refund unless otherwise required by law. All purchases of these types of products are final and non-refundable.
10. FEES AND CHARGES.
    1. Fees and Charges. Your fees and charges may change from time to time, with or without notice (except pricing will not change during the initial term of a Minimum Commitment Contract). Any pricing adjustment will be reflected in an invoice provided to you at the time of the pricing adjustment for your account. We may introduce or otherwise make available new and/or existing 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, reduce, or discontinue 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 such changes 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 that Service at the expiration of the free trial period, unless you terminate the free trial offering prior to the expiration of the trial period. If not terminated prior to the end of the trial period, this Service will be added to your account for the remainder of your term, and any subsequent removal of the Service will be subject to Nextiva’s Cancellation Policy, as well as any and all applicable early termination fees.  In the event that you do terminate a free trial offering prior to the expiration of the trial period, Nextiva may, without prior notice to you, immediately terminate your access to the free trial offering.  Any failure by Nextiva to immediately terminate your access to the free trial offering shall not be considered a waiver of the right to do so later.  You further agree that you will not access or attempt to gain access to any free trial offering after the termination of your free trial period. When you subscribe to that 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 Agreement. 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 and Discounts. Nextiva may limit the number of promotions and/or discounts you may be eligible for in a given period. Promotions and discounts may be cancelled or modified, and discounts may be reduced or eliminated, by Nextiva at any time, with or without notice (except with respect to discounted pricing during the initial term of a Minimum Commitment Contract).
    7. 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 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/legal.html?doc=06 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. NEXTIVADOES 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 unenforceability 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 9451 East Via de Ventura, Scottsdale, AZ 85256.
       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 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. 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 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. COMPENSATION PROGRAMS. Nextiva markets its services through multiple sales channels, including through marketing partnerships, referral programs and sales representative relationships with third parties. We may pay compensation to such third parties in connection with your purchase of services from Nextiva.
27. 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.
28. 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.
29. COPYRIGHT, TRADEMARK, AND INTELLECTUAL PROPERTY; 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.
    
    The entire content included in this Website, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof is copyrighted as a collective work under the United States and other copyright or intellectual property laws and is the property of, or used under license by, Nextiva.
    
    Nextiva’s trademarks are always changing. Some of our trademarks include, but are not limited to:
    
    Nextiva®
    Nextiva Office®
    NextOS®
    CoSpace®
    xBert®
    Amazing Service®
    Simplifying Business Communication®
    SmartTopics®
    NextCon®
    BuildAmazing®
    NextIQ®
    
    All trademarks, service marks, and trade names (collectively the "Marks") are trademarks or registered trademarks of and are proprietary to Nextiva, or other respective owners that have granted Nextiva the right and license to use such Marks.
    
    Nothing in this website or your subscription to, or licensing of, any Nextiva products or services grant any right, title, proprietary or ownership interest in any Nextiva intellectual property Marks, copyrights, patents, trade secrets, or other intellectual property.
30. LICENSE BY CUSTOMER TO USE FEEDBACK
    1. Customer hereby grants to Nextiva a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Nextiva’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the improvement, operation, or use of Customer’s Services.
    2. 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.
31. CUSTOMER DATA. Nextiva does not own: (i) any data, information or material that Customer submits to Nextiva in the course of using the Service; or (ii) outputs which are specifically provided to Customer during the usual course of providing the Service except to the extent that such outputs incorporate Nextiva’s Intellectual Property ("Customer Data"). Customer hereby grants to Nextiva a limited, non-exclusive, worldwide, royalty-free license to Customer Data for Nextiva to provide Services. Customer, not Nextiva, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Nextiva shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination of Customer’s Service, Customer’s right to access or use Customer Data immediately ceases, and Nextiva shall have no obligation to maintain or forward any Customer Data. At our sole discretion, Nextiva may retain Customer Data in accordance with Nextiva’s data retention policies and our Privacy Policy.

Last Updated: May 20, 2022

Nextiva Contact Center

Terms & Conditions

Customers who subscribe to the Nextiva Virtual Contact Center product also agree to these terms as passed from Five9, Inc. (as the provider of the product) to Nextiva to Customer:

1. Services and Use. “Services” means the proprietary hosted virtual call center software and system provided by Five9, Inc. (“Five9”). Customer agrees not to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Services available to any third party in any way; (ii) reverse engineer, modify or make derivative works based upon the Services; (iii) input personally identifiable information or other sensitive or protected information into the virtual contact center database fields other than phone numbers; or (iv) use the Services for any purpose other than to support its call center business.
2. Data Use and Retention. During the normal operation of the Services, Five9 will collect and store on its systems certain information and data provided or collected by the Customer (“Customer Data”). Customer authorizes Five9 to store Customer Data on its secure internal systems and to use and copy Customer Data solely for the purpose of providing the Services to Customer. Additionally, Customer agrees that Five9 may use non-individually identifiable Customer Data in perpetuity to test, analyze and improve the Services. Five9 will not resell or share any Customer Data with a third party without Customer’s express written authorization. Five9 retains the right to periodically purge Customer Data from Five9’s servers to maximize system performance as set forth and can be found at www.five9.com/4433.
3. No Requirement to Offer Emergency Services. Customer understands and acknowledges that Five9 does not and is not required to provide Emergency Service, where “Emergency Service” is defined as services that connect a user to emergency services personnel or a public safety answering point ("PSAP"), pursuant to applicable regulatory requirements. In the United States, Emergency Service is provided by dialing the digits "911" on a wired or a wireless telephone. Services provided by Five9 do not permit the dialing of "911" or any other emergency telephone numbers. Services are not telephone or telecommunications services that can provide a connection to emergency services personnel or a PSAP under any circumstances. Customer recognizes and agrees that Five9 is not required to offer Emergency Service, pursuant to any applicable laws, rules or regulations. Customer further recognizes and agrees that Five9 is not a replacement for Customer's primary telephone service. CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT FIVE9'S SERVICES DO NOT INCLUDE EMERGENCY SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ADDITIONAL ARRANGEMENTS WITH A THIRD PARTY MUST BE MADE BY CUSTOMER TO ACCESS EMERGENCY SERVICE.
4. Specific Disclaimer of Liability for Emergency Service. Five9 does not provide Emergency Service in conjunction with the Services or any other services that may be used by Customer in connection with the Five9's Services. Neither Five9, its officers, directors, employees, shareholders, affiliates nor agents will be liable for any claim, damage, or loss arising from, or relating to, Customer’s use of the Five9's Services or any other service provided hereunder to contact a PSAP or Emergency Services personnel. Customer specifically waives, to the maximum extent permitted by applicable law, any and all such claims or causes of action, arising from or relating to the Five9's Services or any other service provided hereunder to contact a PSAP or other Emergency Services personnel. Customer agrees to defend, indemnify, and hold harmless Five9, its officers, directors, employees, shareholders, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, court costs and attorneys’ fees) arising out of the fact that Five9 does not offer Emergency Service.
5. Legal and Regulatory Compliance. Customer agrees to comply with all federal, state and/or local law related to or connected with providing, selling, licensing and delivering information services and telecommunications services and products. Customer assumes all liability and responsibility for its use of the Services in compliance with any federal, state or local laws, rules or regulations pertaining to the use of telephones, email, fax, automated telephonic equipment (e.g. “Predictive Dialer”) and other telephony and telecommunications products and services. Customer’s limitations on its use of the Services may include but are not limited to: advertisements; delivering artificial or prerecorded telephonic messages to homes without the prior consent of the called party; and restrictions on the time of day in which such calls are permissible. A violation of any such laws may result in substantial penalties and other sanctions. Any person intending to use the Services for solicitation purposes and/or for any other purpose regulated by federal, state or local laws should consult with his or her own legal counsel, prior to entering into this Agreement to determine the extent of permissible activities. Customer agrees that Five9 will not be responsible for Customer's illegal or fraudulent use of the Services, and Customer indemnifies Five9 for any claims, liabilities or expenses (including attorneys’ fees) incurred by Five9 based upon Customer’s illegal or fraudulent use of the Services.
6. Suspension or Termination by Five9. Five9 may suspend or cancel Customer’s access to the Services if Five9 has a good faith belief that Customer (x) is using the Services in a manner that may cause immediate and ongoing harm to Five9 or to a third party, including but not limited to, actions that violate federal, state or local laws, rules or regulations, such as compliance with "Do Not Call Lists"; (y) is compromising the security of the Services and the privacy of Five9's other customers; or (z) is engaging in other activity not specifically identified herein that could reasonably be construed as causing or potentially causing harm to Five9 or a third party.
7. Consents. Customer is solely responsible for obtaining the consent of or a release from those persons or entities, to whom or to which Customer intends to send communications using the Services. Customer agrees to periodically review the list of recipients to be contacted, to contact only those persons who the Customer is legally permitted to contact from Customer’s customer data, and only in the manner permitted, under federal, state and local law, and to delete those recipients that no longer wish to receive communications from Customer.
8. "Do Not Call" Compliance. If Customer is advised by any party that they do not wish to receive communications from Customer via the Services, then Customer agrees to promptly add those parties to its internal company-specific Do Not Call List in the Services account, and thereafter refrain from calling such parties until such time as Customer’s policies require.
9. Call Recordings. Customer acknowledges and understands that if it subscribes to call recording features that calls will be recorded at all times including when a call is placed on hold or after a call is transferred to another party. Customer agrees that when using the call recording features it will comply with all notice/consent and privacy requirements pursuant to applicable law.
10. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL FIVE9 BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR OTHER SIMILAR GENERAL DAMAGES, LOSSES OR COSTS ARISING OUT OF OR RELATING TO THIS AGREEMENT NOR SHALL FIVE9’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ALL FEES PAID BY CUSTOMER FOR ANY FIVE9 SERVICES IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY.
11. Disclaimer of Five9 Warranties. FIVE9 IS PROVIDING THE SERVICES AS HOSTED SERVICES AND THE SERVICES ARE DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIVE9 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES FIVE9 MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. FIVE9 MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES. Customer understands that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades pursuant, or for reasons beyond Five9's reasonable control including but not limited to (i) Customer or Five9 equipment malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or the Customer’s data centers.
12. Ownership of Materials and Rights. All rights not granted by Five9 herein are expressly reserved. The Services are proprietary to Five9 and are protected by intellectual property laws and international intellectual property treaties. Except for the access to and use the Services granted to Customer in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in the Services to Customer.

AI Addendum Terms (“AI Terms”)

These AI Terms set forth additional Required Terms for the use of subscriptions to Five9 AI products and/or AI product features(collectively “AI Products”) via the Five9 virtual contact center software as a service platform. These terms supplement the existingRequired Terms for Five9 products. To the extent that these AI Terms conflict with the Required Terms, these AI Terms control.

1. “AI Customer Data” is any identifiable information or identifiable data collected or provided by Customer to Five9 (or to Reseller for provision to Five9) via the Services including, but not limited to call recordings or call transcripts generated through the AI Products.
2. Customer agrees that Five9 may store, access, utilize, copy and process AI Customer Data for the purposes of: (i) providing theAI Products specified in the ordering document to Customer, (ii) improving, enhancing, supporting and training the AIProducts and performing other development, diagnostic, and corrective activities, (iii) carrying out any benefits, rights and obligations relating to such AI Products or the business of which the AI Products are a part, (iv) maintaining records relating to such AI Products, and (v) complying with any legal or self-regulatory obligations relating to such AI Products. Customer instructs Five9 (including via Reseller) to process its AI Customer Data for such purposes, provided however, Five9 will not share AI Customer Data with other customers utilizing the Five9 platform or any third parties (except as required to comply with law or compulsory processes as set forth in the Agreement or the AI Addendum, or to the AI Service Providers, as described below).
   
   Certain aspects of the AI Products may utilize third-party components and service providers (e.g. Google CCAI) to provide theAI Products (collectively, the “AI Service Providers”). Customer, via Reseller, authorizes Five9 to have the AI Service Providers Store, access, utilize, process and copy AI Customer Data for the purposes of providing the AI Products. Notwithstanding Anything to the contrary in the Agreement, Customer agrees that: (i) Five9 may disclose or enable access to Customer’sConfidential Information to such AI Service Providers that are subject to confidentiality obligations; and (ii). the AI Service Providers may disclose or enable access to such Confidential Information to comply with law or to satisfy governmental regulatory requirements (in which case Five9 shall, if legally permitted, notify Customer and/or Reseller of the AI Service Providers intent to make such disclosure within a reasonable period of time after Five9 receipt of notice thereof).
3. The AI Service Providers may host or process the AI Customer Data in different locations than the other Five9 Services, including outside of the United States, and Customer hereby authorizes and consents to such hosting or processing. Customer further agrees that Customer will not use the AI Products to transmit, store, or process health information that is subject to United StatesHIPAA (Health Insurance Portability and Accountability Act of 1996) regulations without prior written consent from Reseller And Five9.
4. As between Five9 and Customer, Customer owns the AI Customer Data. Customer is responsible for, and represents and warrants that Customer has and will continue to: (i) have the authority to provide the AI Customer Data to Five9 and the AIService Providers as set forth in this AI Addendum; and (ii) obtain and maintain any necessary or legally-required notices, policies, consents or releases from individuals or entities whose data or information is included in the AI Customer Data.
5. During the term of the relevant ordering document, Customer may use the AI Product specified in the ordering document for its internal business purposes in accordance with the terms of Customer’s agreement with Reseller, but obtains no ownership of the AI Data or AI Products, including any related documentation or any modifications, improvements, adaptations of derivative works. As between Five9, Reseller, and Customer, Five9 owns the AI Products, including but not limited to (i) any algorithms, training data and machine learning models, and (ii) all performance data or metrics, aggregated information,tooling, transcripts, learnings, or processes developed via the AI Products or their use, including any annotations or output of anyAI Product that is not a call transcript or call recording (collectively, “AI Data”).
6. Any language in the Agreement between Reseller and Customer restricting Five9’s retention, use, and disclosure ofCustomer Data and Customer’s Confidential Information will not apply to AI Data.
7. The technology used to provide the AI Products may include a tracking mechanism that permits the AI Service Providers to identify Customer. Where the AI Service Provider is Google, Customer acknowledges that Reseller and/or Five9 must (i) provideCustomer’s name to Google, and (ii) receive Google’s written consent for Customer to access the AI Products. In the event that such consent is not received, Five9 and/or will notify Customer and the corresponding subscriptions will automatically terminate, without penalty, with respect to the affected AI features only.
8. Use of AI Products provided by Google requires that Customer comply with Google’s acceptable use policy (currently available at https://cloud.google.com/terms/aup) in connection with Customer’s use of the AI Products. Customer will immediately remedy any alleged non-conformance with such acceptable use policy upon receipt of notice of the same fromReseller and/or Five9. Customer acknowledges that failure to comply with such acceptable use policy may result inCustomer’s suspension from the AI Products and/or termination of any orders for the AI Products. Additionally, Customer Consents to Five9 sharing Customer’s personal information with Google for the purpose of enabling Google and its subcontractors to provide product support.

Last Updated: March 7, 2022

NEXTIVA, INC. CONNECT BETA LICENSE AGREEMENT

PLEASE CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE NEXTIVA, INC. (“NEXTIVA”) CONNECT BETA LICENSE AGREEMENT (THIS “AGREEMENT”). IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DECLINE” BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE NEXTIVA, INC. CONNECT BETA PROGRAM. BY CLICKING “ACCEPT” YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO EXECUTE THIS AGREEMENT ON BEHALF OF THE PARTY THAT YOU REPRESENT (THE “PARTICIPANT”).

This Agreement is entered into as of the date accepted by the Participant (the “Effective Date”).

Participant wishes to evaluate the Nextiva Connect desktop application and related Nextiva Connect features, functionalities and services as added to the Participant’s account (the "Beta Services").

1. USE OF THE BETA SERVICES. In consideration for the Participant’s participation in the Beta program provided for herein, Nextiva grants Participant a nonexclusive, nontransferable, non-sublicensable, temporary, revocable, limited right to access and use the Beta Services solely for the purpose of testing and evaluating the Beta Services. The rights granted under this Agreement are granted only to Participant and may not be assigned or transferred to any other party. Title to the Beta Services remains in Nextiva. Participant agrees that it will not (a) permit unauthorized access to or use of the Beta Services; (b) attempt to gain unauthorized access to the Beta Services or any related systems or networks; or (c) interfere with or disrupt the integrity or performance of the Beta Services or the data contained therein. Participant further agrees to safeguard all passwords related to the Beta Services and to notify Nextiva immediately of any unauthorized use of Participant’s password and/or account, or any other known or suspected breach of security.
2. TERM AND TERMINATION. The rights granted in Section 1 of this Agreement shall be in effect for the earlier of sixty (60) days from the date of delivery of access to the Beta Services to Participant or until either party provides the other with written notice of its termination of this Agreement (“Beta Period”). Participant agrees not to attempt to gain access to the Beta Services after the Beta Period without Nextiva’s express permission. Participant understands and agrees that Nextiva is under no obligation to release any final service or product resulting from the Beta Program to the public, including for Participant’s use after the Beta Period.
3. DISCLAIMER OF WARRANTY. NEXTIVA SPECIFICALLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. Nextiva does not warrant that the Beta Service(s) will meet Participant's requirements or that operation will be uninterrupted or error free. The Beta Services(s) are provided "AS IS". PARTICIPANT AGREES THAT NEXTIVA SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING FROM PARTICIPANT’S USE OF THE BETA SERVICE(S). PARTICIPANT IS SOLELY RESPONSIBLE FOR ALL ACTIVITY OCCURING UNDER PARTICIPANT’S ACCOUNT(S) AND AGREES TO FULLY COMPLY WITH ALL APPLICABLE LAWS.
   Participant understands and agrees that any data entered by Participant into the Beta Services may be deleted or otherwise unavailable to Participant at the conclusion of the Beta Period even if Participant and Nextiva enter into a further agreement to allow Participant to continue to use any of the Beta Services at the conclusion of the Beta Period. Nextiva encourages Participant to maintain redundant back-up copies of any data inputted by Participant into the Beta Services.
4. REPORTING. Participant agrees to provide Nextiva with reports of any defects found in, and any recommendations for changes or modifications to, the Beta Service(s). Participant further agrees to designate one or more individuals that will provide regular feedback (at least once every two weeks) to Nextiva, including by email, chat and audio and/or video conferences that may, in Nextiva’s discretion, be recorded. Participant acknowledges and agrees that Nextiva shall exclusively own and retain all right, title, and interest, including but not limited to all intellectual property rights, in and to all suggestions, ideas, enhancements, requests, feedback, recommendations, and other information provided by Participant.
5. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Arizona. The parties hereby irrevocably consent to the jurisdiction of the courts having jurisdiction over Maricopa County, Arizona for the interpretation of this Agreement and for the resolution of all disputes hereunder.
6. INCORPORATION OF TERMS AND CONDITIONS. Participant further agrees to the Nextiva Terms and Conditions located at http://www.nextiva.com/legal.html. If there is a conflict between this Agreement and the Terms and Conditions referenced herein, the terms of this Agreement will prevail.
7. CONFIDENTIAL INFORMATION. Participant agrees that the Beta Services and any information concerning the Beta Services (including, but not limited to, its nature and existence, feature, functionalities, availability, log-in credentials, and interface (including screenshots thereof), and any other information disclosed to Participant by Nextiva regarding or in connection with the Beta Services shall be considered and referred to herein as “Confidential Information”. Confidential Information shall not include information that would otherwise be deemed Confidential Information, but (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Participant at the time of its receipt from Nextiva; (iii) is rightfully received by the Participant from a third party who did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by the Participant without reference or access to any Confidential Information. All Confidential Information remains Nextiva’s sole property, and Participant has no implied licenses or other rights in the Confidential Information except as expressly set forth in this Agreement.
8. NON-USE AND NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Participant agrees that it will not disclose, publish, or otherwise disseminate any Confidential Information to anyone. Participant further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Beta Services to third parties. Participant agrees to use the Confidential Information solely for the permitted uses as set forth in this Agreement. Participant agrees not to use Confidential Information otherwise for its own or any third party’s benefit without Nextiva’s prior written approval in each instance. Participant hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Nextiva that may be difficult to ascertain. Accordingly, Participant agrees that Nextiva will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies available to it.
9. ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior agreements or understandings between the parties, whether written or oral, with respect hereto. No modification to this Agreement shall be of any force or effect unless made in writing and signed by each party.
10. NO UNANNOUNCED MODIFICATIONS. By signing and delivering this Agreement and/or any schedule, exhibit, amendment, or addendum thereto, the delivering party represents to the other party that the delivering party has not made any changes to such document from the draft most-recently provided to the delivering party by the other party unless the delivering party has expressly called such changes to the other party’s attention in writing (e.g., by “redlining” the document or by a comment memo or email).

Last Updated: December 23, 2021