DELTEL HOLDINGS, LLC TERMS AND CONDITIONS OF SERVICE
PBNext TERMS AND CONDITIONS OF SERVICE
DelTel will provide you with the PBNext service under the following Terms and Conditions of Service (.Agreement.). When you sign this form, register online to use the Services or attempt to use Services, you accept this Agreement, regardless of whether you are the .user. of the .Services., as those terms are defined herein. Your PBNext toll-free account will be activated immediately after you sign this Agreement. Please read this Agreement carefully.
1.1 Provision of Services.
Subject to your compliance with this Agreement, PBNext will provide you with the services activated by you from time to time and agreed to be provided to you by PBNext (collectively, the .Services.). PBNext may decide not to provide Services to you for any lawful reason, and may request that you provide it with any information it reasonably requires to determine whether you qualify for Services. Use of the PBNext service is subject to the terms and conditions of an end-user license agreement that will be agreed to as part of the registration process.
1.2 Modification of the Services and or this Agreement.
PBNext reserves the right, at its discretion, to modify the functionality of the Services and/or this Agreement at any time without notice if the modification enhances, improves, or reduces the prices of Services to the user. Otherwise, PBNext will provide at least thirty (30) days prior written notice in a form to be determined by PBNext in its sole discretion. In addition, if PBNext determines, in its reasonable business judgment, that you have materially breached the terms of your particular service plan (e.g., by allowing more than one person to make or receive calls on a single user plan), PBNext may, in its sole discretion and without notice, either (i) switch you to the plan that corresponds to your actual usage at the then-applicable rates, which plan may include per-minute fees; or (ii) immediately suspending your access to the Services and bill you the difference between the fees you have paid and the fees you owe based upon your actual use of the Services. You will have the right to terminate the Services by providing PBNext written notice within fifteen (15) days following receipt of notice of such modifications if either (a) any such modifications of the Services materially degrades the functionality of the Services or (b) you do not accept any such modifications of this Agreement. Failure to so terminate will constitute your acceptance of such modifications. You will still be responsible for paying all outstanding invoices including charges assessed based on PBNext.s modifications to your Services made in PBNext.s reasonable business judgment.
1.3 Calculation of Usage Charges
Calculation of charges for a call start when our system receives a call, or places one on your behalf, and end after the call is disconnected from our system. Calls on hold, in menus, in voice mail, or connected to PBNext in any other way incur charges as long as they are connected to our system. This includes the time you may spend recording greetings or checking voice mail over the phone (checking your voice mail online does not incur usage charges). All usage is rounded up to whole minutes. All usage charges are rounded up to whole cents at the end of the call.
1.4 Toll Avoidance.
By selecting the area code you wish to have as part of the telephone number that PBNext assigns to you in connection with your use of the Services, you hereby represent and warrant that you have the legal right to use this area code. PBNext reserves the right to change the area code and telephone number assigned to you if it determines that you are not entitled to use that area code, e.g., because neither your residence nor your business has any connection to the geographical area to which such area code corresponds.
2.1 Credit Verification.
You must have and keep satisfactory credit to receive and continue to receive Services. PBNext will verify your credit before agreeing to provide Services to you and may verify your credit at any time while it provides Services to you. Credit verification may include a review of credit reports that PBNext receives from commercially available credit bureaus. PBNext may require a guaranty of payment by an individual or entity approved by PBNext, or establish a pre-set credit limit on your account, with a requirement that you immediately pay any amount by which your unpaid account balance exceeds your credit limit. If, at any time, PBNext determines in its sole discretion, that payment for Services may not be made when due, PBNext may suspend Services to you and require that you provide payment on account or a guarantee of payment before PBNext resumes Services to you.
You agree that PBNext is permitted to charge your credit card or ACH a monthly subscription fee, any applicable sales tax, any usage charges and any other charges you may incur in connection with your use of PBNext. You are liable for all charges related to such Services accessed through your account regardless of who actually utilizes the services. The subscription fee will be billed at the beginning of your subscription and on each monthly renewal thereafter unless and until you cancel. We will automatically charge your credit card or ACH all fees each month on the calendar day corresponding to the commencement of your membership. In the event your membership began on a day not contained in a given month, we will bill your credit card on the last day of such month. For example, if you became a member on January 31st, your card would be billed on February 28th. All fees and charges are nonrefundable. If you want to use a different credit card or if there is a change in your credit card validity or expiration date, please call customer service at 1-877-772-6398. If your credit card or ACH is declined PBNext will automatically re-bill you up to 3 times during the next billing cycle in order to keep your account current. If PBNext is unsuccessful in charging your credit card or ACH on the 3rd attempt your access to the Services will be immediately suspended and your account will be turned over to our collections department. PBNext reserves the right to attempt collection of any past due balance after your account has been turned over to collections, even if your account has been cancelled.
PBNext will invoice you for taxes, regulatory related obligations and other charges levied by federal, state or local authorities, or foreign governments on Services, or mandated to be paid in proportion to receipts from Services. Taxes, regulatory related obligations and other charges not directly paid by PBNext are not invoiced to you, but payment to the taxing or levying authority of any such applicable taxes, regulatory related obligations and other charges due from you are your responsibility. If you claim any tax exemption, you must provide PBNext with a valid tax exemption certificate. Any tax exemption applies only from the date that PBNext receives such valid tax exemption certificate.
2.4 Late Payments.
Any payment received more than five (5) days after the date due will subject you to a late fee of $5.00, or the maximum amount permitted by applicable law, whichever is less as liquidated damages and not as a penalty, to compensate PBNext for the accounting and other fees and charges it will incur as a result of receiving a late payment. In addition to any other remedies PBNext may have, PBNext reserves the right to suspend the provision of the Services if you fail to pay any fees when due. Any request by you to resume the Services following any such suspension will be at PBNext.s discretion and will be subject to PBNext.s then applicable reactivation fee. You agree to pay all legal and collection fees arising from PBNext.s efforts to collect any past due amounts from you to the extent allowed by law. Acceptance by PBNext of late payments or partial payments (even if marked .paid in full.) does not waive PBNext.s right to collect all amounts that you owe to PBNext.
2.5 Non-Sufficient Funds Fee.
A $20.00 Non-Sufficient Funds (NSF) fee will occur for each ACH or check payment returned due to non-sufficient funds. An NSF item is any item that will not pay at the time of processing due to inadequate funds in the specified account.
You have the right to request reactivation of a closed account within a maximum of six months from the original cancellation date. Any account holder requesting reactivation is subject to the following: a one time $19.95 reactivation fee, the first month of service, plus any previously owed past due amount. PBNext can not guarantee that the same telephone number or rate plan previously subscribed will be available for re-issue at the time of reactivation.
2.7 Modification of the Fees.
PBNext reserves the right, at its discretion, to increase the fees for the Services at any time upon thirty (30) days prior written notice. You will have the right to terminate the Services by providing PBNext written notice within fifteen (15) days following receipt of notice of such increase. Failure to so terminate will constitute your acceptance of such increase.
2.8 Additional Number Fee
Any local or toll-free number added to your account, in addition to any included numbers, will be assessed a $4.95 per number per month fee. Setup fee may apply. Contact customer support for the then applicable setup fee amount.
3. CREDITS FOR SERVICE INTERRUPTION
3.1 Granting of Credit.
The Services may be temporarily interrupted, delayed or otherwise limited for a variety of reasons. While PBNext does not assume any duty to provide uninterrupted Services to you, a credit will be given for certain interruptions of Services as described below. However, a credit will not be given for interruptions in the Services caused by (a) your negligent or willful actions, (b) the failure or incompatibility of equipment, software or services not provided by PBNext or (c) causes beyond the reasonable control of PBNext.
3.2 Calculation of Credit.
You agree that the liability of PBNext, if any, for interruptions, delays and/or failures of the Services, whether caused by PBNext or otherwise, is limited solely to the allowance of a credit as set forth herein. Credits for an interruption of Services will only be given when the interruption is continuous for twenty-four (24) hours or more and will consist of a pro-rata adjustment of the monthly service fees for the Services rendered unusable by the interruption. Credits will be given only when you report interruptions to PBNext. For the purpose of calculating the applicable credit, an interruption will be measured from the time it is reported to PBNext. The issuance of the pro-rata credit will constitute a full accord and satisfaction of all claims by you against PBNext for interruption of the Services. In no case will the pro-rata credit exceed the applicable monthly service fees for the Services rendered unusable by the interruption.
4. LIMITATIONS ON USE
You agree that you will not (a) rent, sell, lease or otherwise transfer the Services or (b) use the Services in a manner that violates applicable law. You will be liable to PBNext for any failure by you or the user (if someone other than you) to comply with the terms and conditions contained in this Agreement.
5. DISCLAIMERS AND LIMITATIONS
THE SERVICES ARE PROVIDED ON AN .AS IS. AND .AS AVAILABLE. BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, PBNext DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE SUITABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THE SERVICES. PBNext DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY PBNext.S EMPLOYEES OR OTHERWISE, THAT IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY PBNext FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF PBNext WHATSOEVER.
5.2 Limitation on Liability.
IN NO EVENT SHALL PBNext BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST DATA OR ECONOMIC DAMAGE, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER PBNext HAS BEEN ADVISED OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding any provision contained herein to the contrary, the sole liability of PBNext arising out of or in connection with this Agreement or any use of or inability to use the Services, whether such liability arises from any claim based upon contract, warranty, tort, or otherwise, will be limited to the credit for service interruption for each separately disrupted Service for the period of disruption as described in Section 3. You hereby release and hold PBNext and its officers, directors, employees and agents harmless from and against any and all claims for damages of any nature, arising in any way from your use of the Services and any violation by you of this Agreement. This obligation will survive termination of this Agreement.
5.3 Limitation on Actions.
You may not institute any action or arbitration proceedings in any form arising out of this Agreement or your use of the Services more than twelve (12) months after the cause of action has arisen.
5.4 Recorded Calls.
PBNext provides a function that allows you to record individual telephone conversations. By providing this function, PBNext does not represent or warrant that recording telephone conversations in your jurisdiction is legal under any circumstances whatsoever. The laws regarding the notice and notification requirements of recording telephonic conversations, or its very legality, vary from state to state. You are solely responsible for determining and complying with all federal, state and local laws in all relevant jurisdictions when using this feature. The laws of more than one jurisdiction may well apply if you record a call to someone in another state. PBNext expressly disclaims all liability with respect to your recording of telephone conversations. You hereby release and agree to hold harmless PBNext from and against any damages or liabilities of any kind related to your acts or omissions in recording any telephone conversations using the Services.
6. TERM & TERMINATION
Your PBNext subscription will be provided by PBNext and accepted and paid for by you for a term commencing on the signup date and continuing on a monthly basis thereafter.
Your PBNext subscription will be automatically renewed on a monthly basis. PBNext will charge the PBNext monthly subscription fee to the credit card or ACH information you provide to us during registration (or to a different credit card if you change your account information). Your membership will automatically renew for successive monthly subscriptions, without prior notice to you, unless and until you cancel your membership or we terminate it. You must cancel your membership before it renews in order to avoid billing of subscription fees to your credit card.
6.3 Termination for Default.
Either party may terminate the Services (a) in the event the other party commits a material breach of this Agreement and such failure continues for a period of fifteen (15) days following written notice of such failure (provided that no such notice will be required, and no such cure period will be afforded, in connection with any failure by you to pay PBNext all amounts due and owing to PBNext hereunder); or (b) immediately and without notice if the other party makes any assignments of assets or business for the benefit of creditors, or a trustee or receiver is appointed to conduct its business or affairs, or it is adjudged in any legal proceeding to be in either voluntary or involuntary bankruptcy.
6.4 Canceling Service, Termination for Modifications, Price Increases.
You may cancel your subscription to PBNext at anytime. For security reasons, only the verified account owner can cancel an account. We allow you to cancel many different ways, you may call 1-877-772-6398 and speak to a representative, mail us a certified letter requesting cancellation, send us a fax, or send us an email. Accounts will remain active until verification of the account holder has been completed. We do not provide refunds or credits for any partial monthly subscription periods. You may continue to use your PBNext service until the end of the paid subscription period. You will be billed for any usage incurred and not paid for at the end of the subscription period. PLEASE BE ADVISED: Any toll free and/or local number not ported away from PBNext prior to account cancellation will be released to the public pool for purchase by other users or carriers.
You agree to defend, indemnify, and hold harmless PBNext and its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your breach of the warranties or obligations under this Agreement. PBNext agrees to notify you of any such claim, suit, or proceeding and will cooperate with you in defending any such claim, suit or proceeding at your expense.
8. VOICE MAIL, FACSIMILE AND E-MAIL SERVICES
8.1 Voice Mail and Facsimile Message Purging.
You acknowledge that voice mail and facsimile message purging is necessary in order to maintain individual accounts and system performance. Any voice mail or facsimile message that is older than twenty-one (21) days (as measured from the date the Voice Mail or Facsimile document was processed by PBNext)_will automatically be deleted. Once deleted, any such message cannot be restored.
8.2 No Liability for Security Breaches.
IN ADDITION TO, AND NOT IN LIMITATION OF, THE LIMITATIONS ON PBNext.S LIABILITY SET FORTH IN SECTION 5, IN NO EVENT SHALL PBNext BE LIABLE IN ANY MANNER FOR ANY SECURITY BREACH ARISING OUT OF PBNext.S CONNECTION TO YOUR E-MAIL SERVER, IF APPLICABLE, OR FOR ANY LOSS OR THEFT OF DATA AND/OR CONFIDENTIAL INFORMATION RESULTING THEREFROM, OR FROM THE UNAUTHORIZED OR CRIMINAL ACTS OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED, HACKING OF OR ILLEGALLY ACCESSING PBNext.S SERVER, DENIAL OF SERVICE ATTACKS, OR THE USE OR DISSEMINATION OF COMPUTER VIRUSES, TROJANS, SPYWARE, OR ANY OTHER COMPARABLE OR SIMILAR ATTEMPT TO INTERFERE WITH OR DISRUPT YOUR USE OF THE SERVICE, OR USE THE SERVICE TO OBTAIN YOUR PERSONAL INFORMATION.
8.3 Purging of Recorded Calls.
PBNext will automatically purge all recorded calls ninety (90) days after they are recorded on the PBNext system.
9.1 Definition of User;
As used in this Agreement, the term .user. means a natural person who is authorized to make or receive calls on your account using the Services. Only one user is allowed on a .Single User Plan..
9.2 Independent Contractor.
We are independent contractors and nothing in this Agreement will create or imply any agency relationship between us, nor will this Agreement be deemed to constitute a joint venture or partnership between us. Neither party will have authority to bind or otherwise obligate the other in any manner whatsoever.
9.3 Force Majeure.
PBNext will not be liable for its failure to perform hereunder due to contingencies beyond its reasonable control, including, but not limited to, strikes, riots, wars, fire, power failure, hardware failure, acts of God, or acts in compliance with any law or government regulation.
9.4 Governing Law; Arbitration.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. All claims and disputes arising out of this Agreement or the use or provision of Services will be settled by binding arbitration pursuant to the rules and regulations of, and under the auspices of, the by the Judicial Arbitration & Mediation Service (.JAMS.) in Orange County, California by a single arbitrator selected either by mutual agreement of you and Company or, if the parties cannot agree, from an odd-numbered list of suitably qualified business law arbitrators provided by JAMS. In any arbitration proceedings, the prevailing party will be entitled to recover all legal costs, fees and expenses incurred by it in connection with the arbitration. The arbitrator will have all powers conferred by law and a judgment may be entered on the award by any court of competent jurisdiction. The award must be in writing and contain sufficient detail to reveal the essential findings and conclusions on which it is award is based and will be binding on both parties. Neither PBNext nor you will be required to submit to arbitration the following categories of dispute: (i) Any dispute that may not lawfully be the subject of a mandatory arbitration provision under California law; (ii) a dispute in the amount subject to the jurisdiction of the Small Claims Court Division of any Superior Court which is actually filed in such court of inferior jurisdiction; and (iii) the request of you or PBNext from a court of competent jurisdiction to obtain provisional or injunctive relief either before or during the pendency of any arbitration under this Agreement. Both you and PBNext agree that Orange County, California is an appropriate venue for resolution of any dispute between them and further agree not to object to such form on the grounds that it is inconvenient or otherwise inappropriate.
9.5 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
You may not assign or delegate any of your rights or obligations under this Agreement without the written consent of PBNext. PBNext may assign or delegate any of its rights or obligations under this Agreement without the written consent of Customer. PBNext may subcontract any or all of its obligations under this Agreement. The provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors and their permitted assigns.
Any notices required or permitted to be given under this Agreement must be in writing and will be deemed to have been duly given five (5) days following mailing, registered or certified mail with postage prepaid, or one (1) day following transmission by facsimile (with a hard copy thereof mailed to the recipient with postage prepaid), or e-mail addressed to the intended recipient. Notices to you will be sent to the last physical address that you have provided to PBNext as your contact address or, your e-mail as the case may be. Notices to PBNext must be sent to PBNext, Inc., 26895 Aliso Creek Road, STE B PMB 501, Aliso Viejo, CA 92656 to the attention of President, or at such other address as either party provides to the other party in writing from time to time. Notwithstanding the foregoing, by providing PBNext will a valid e-mail address either at the time you apply for Services or at any time while you have an active account to use the Services, you will be deemed to have consented to receive all written notices from PBNext by e-mail. You may withdraw your consent to receive further notices by e-mail or change your notification e-mail address at any time by notifying PBNext in writing either at the address above or by e-mail to support@PBNext.com
The waiver by one party of a breach of any provision of this Agreement by the other party will not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other party.
In the event that any of the provisions of this Agreement or the application of any such provisions to the parties hereto with respect to their obligations hereunder are held by a court of competent jurisdiction to be unlawful or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and will not be affected, impaired, or invalidated in any manner.
9.10 Paragraph Headings.
The paragraph headings contained herein are for reference only and will not be considered as substantive parts of this Agreement
9.11 Compliance with Law.
Both parties agree to comply with all applicable laws and regulations of governmental bodies or agencies in their performance under this Agreement.
9.12 Entire Agreement.
This Agreement contains the entire and only understanding between the parties and supersedes all prior agreements, either written or oral, relating to the subject matter hereof. Except as otherwise expressly provided herein, no modifications or waivers of this Agreement will be binding on either party unless made in a writing that specifically references this Agreement and is signed by persons authorized to sign agreements on behalf of you and PBNext.
Date Written: 12/20/2011 Date Effective: 1/30/2012 Terms ID Number: SRF-045B . An Easier to read PDF version of the above terms and conditions is available upon request