Terms and Conditions of Service For Local, Long Distance, International, and Toll Free Services.
PBXPAD is a wholly-owned subsidiary of PAD Technologies, Inc.
1. APPLICATION OF TERMS AND CONDITIONS OF SERVICE
1.1. General Application. These Terms and Conditions of Service and all applicable Tariffs (“Terms and Conditions”), together with the current rates andrestrictions applicable to Customer’s callingplan, constitute Customer’s agreement with PAD Technologies (“Agreement”) for the Services that Customer purchases from PAD TECHNOLOGIES, INC.(“PAD TECHNOLOGIES”). The Rate Schedules and Tariffs are incorporated into this Agreement by reference andare a part of this Agreement. CUSTOMER’S ENROLLMENT IN, USE OF OR PAYMENT FOR THE SERVICES CONSTITUTES CUSTOMER’S ACCEPTANCEOF AND AGREEMENT TO THIS AGREEMENT. IFCUSTOMER DOES NOT AGREE WITH PAD TECHNOLOGIES’ RATE SCHEDULES OR TERMS AND CONDITIONS, ACCEPTABLE USE POLICY (AUP)AND TERMS OF SERVICE (TOS). DO NOT USE THE SERVICES AND CALL PAD TECHNOLOGIES CUSTOMER SERVICE IMMEDIATELY FORINSTRUCTIONS ON HOW TO CANCEL THE SERVICES.
1.2. Changes to Rates, Terms and Conditions. PAD Technologies reserves the right to change its Terms and Conditions at any time. All changes to existingservice, product offerings, Terms and Conditions, Terms Of Service (TOS) and Acceptable Use Policy (AUP) will be posted on PBXPAD’ website atwww.pbxpad.net and/or www.padtechnologies.com before they become effective. In addition, PAD Technologies may notify Customer in advance of anysignificant Rate changes, including any increases to the Rates applicable to Customer’s calling plan, in one of the other ways identified in Section 12.7.Customer may also obtain information on Rate Schedules or a copy of the current Terms and Conditions, Terms Of Service (TOS) and Acceptable Use Policy(AUP) in any of the following ways: by calling the PAD Technologies Customer Service number printed on Customer’s invoice; by w riting to: PADTechnologies Customer Service, 5433 Westheimer Rd, Suite 999, Houston, TX, 77056; or, on its web sites mentioned above.
1.2. TELEPHONE NUMBER. Any telephone number provided by PAD Technologies ("Number") to the End User shall be leased and not sold. End User is notto use the Number with any other device otherthan the Equipment without the express written permission of PAD Technologies. PAD Technologies reserves the right to change, cancel or move the Number atits sole discretion.
1.3. CUSTOMER’S CONTINUED USE OF THE SERVICES CONSTITUTES CUSTOMER’S AGREEMENT TO PAD TECHNOLOGIES’ RATES, TERMS ANDCONDITIONS, ACCEPTABLE USE POLICY (AUP) AND TERMS OF SERVICE (TOS) THAT ARE IN EFFECT AT THE TIME CUSTOMER USES THESERVICES.
2. SERVICES.2.1. Charges. Customer agrees to pay for Services at the currentRates and subject to any restrictions applicable to Customer’s calling plan, which are set forth on the Rate Schedules. In addition to the Rates for using theServices, taxes and surcharges may also apply to Customer’s Services. These additional charges are set forth in Section 3 and 4.
2.2. Requirements for Obtaining Service. Before Customer receives Services, PAD Technologies will require Customer to: (a) agree to a documentauthorizing changes in Customer’s existing longdistance services; and (b) verify that Customer is authorized to order Service at all Locations that Customer designates and that Customer assumes financialresponsibility for Services to those Locations. PAD Technologies may also require Customer toestablish credit as described in Section 4.
2.3. Order Acceptance. PAD Technologies may accept or reject Customer’s order for Services in its sole discretion. PAD Technologies will activate theServices as soon as practical afterreceiving Customer’s order, unless PAD Technologies tellsCustomer otherwise. PAD Technologies’ obligation to provide Services is subject to its ability to procure, construct and maintain necessary facilities. PADTechnologies will undertake commercially reasonable efforts to secure necessary facilities, so long as obtaining the facilities or fulfilling Customer’s order forServices does not adversely affect PAD Technologies’ present services. PAD Technologies’ liability for any delay in activating Services is limited as set forth inSection 8.
2.4. Term of Agreement.This Agreement shall continue in force for the term of Three (3)years after the date of Installation / Commencement of service and or execution of the agreement or as selected in Appendix A – “Fee Schedule Order Form” and shall thereafter renew automatically for successive terms equal to the original term. Either party may terminate this Agreement by delivering written notice of termination to the other party no later than 60 (Sixty) days before the expiration of any service period. Any obligations that are incurred from early termination of the contract including but not limited to circuit charges and reduced installation charges are the responsibility of the Client. PAD Technologies may assess fees for early termination up to 100% of the amount of the remaining monthly fees or $1000, whichever is greater, if Client terminates or cancels order prior to service delivery or terminates or cancels service before the end of the service period. Furthermore unless otherwise stated in a signed agreement Client Understands and agrees that the term of the services provided under the Agreement will add an additional One (1)year to the existing agreement at the end of the original term if the date of execution of any added new TN’s (Telephone Number’s) or cancellations or any modifications to the existing TN’s and or related services such as any IVR’s and extension’s are within the last 12 months of the term, and shall renew automatically after the end of the additional term for successive terms equal to the original term or successive one-year periods. It may only be terminated immediately upon occurrence of a material breach of the terms set forth herein after written notice is provided to the breaching party.
3. TAXES AND SURCHARGES. Some or all of the following charges may apply to Customer’s calling plan. The charges described in this Section are inaddition to all other Rates.
3.1. Regulatory Programs. Customer must pay additional chargesthat PAD Technologies may impose to recover amounts PAD Technologies is required by regulatory or other governmental authorities to collect on behalf of or payto others in support of statutory or regulatory programs.
3.2. Payphone Surcharge. Customer will incur a per-call surcharge of $0.30 for all calls that PAD Technologies identifies as originating from a Public or Semi-Public Payphone. These include prepaid card calls and toll free calls originating from a Public or Semi-PublicPayphone.
3.3. Other Taxes. Customer must pay all excise, sales, use or other similar taxes levied by a governing body or bodies for Services, unless Customer providePAD Technologies with proof thatCustomer is exempt from paying those taxes.
4. PAYMENT OF CHARGES
4.1. Billing.
4.1.1. PAD Technologies will begin charging Customer for Services when they are available for Customer’s use.
4.1.2. PAD Technologies will bill Customer for Services monthly. PADTechnologies will bill Customer for usage accrued beginning immediately upon access to the Services and for usage occurring during a billing cycle. Except forMonthly Recurring Charges (“MRCs”), PAD Technologies bills Customer for charges one month in arrears. Otherwise, PAD Technologies will bill Customer theMRC in effect on the first day of Customer’s billing cycle.
4.1.3. PAD Technologies will bill any MRC applicable to Customer’s calling plan in advance of Service, except for the initial month (orfraction thereof). PAD Technologies will bill the MRC for the initial month (or fraction thereof) on Customer’s first invoice, so that the first bill Customer receiveswill include a MRC for the first month (or a pro-rated MRC for a partial month) plus the MRC for the nextmonth's Service. PAD Technologies will not prorate the MRC for a partial month's Service when Customer cancels Service.
4.1.4. PAD Technologies will bill Customer in increments as stated in the Rates applicable to Customer’s calling plan.
4.1.4.a. TOLL CHARGES. Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"),including other VoIP networks, is subject to the then applicable toll charges that are associatedwith the Plan. Calls to a phone number outside the United States and Canada to a non-PAD Technologies’ phone number will be charged at the current ratespublished on the PAD Technologies website. The duration of each call is to be calculated in oneminute increments and rounded up to the nearest one minutesubject to the then applicable toll charges that are associatedwith the Plan. Calls to a phone number outside the United States and Canada to a non-PAD Technologies’ phone number will be charged at the current ratespublished on the PAD Technologies website. The duration of each call is to be calculated in oneminute increments and rounded up to the nearest one minuteincrement for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Ifthe computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials anInternational PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to anInternational mobile, rather than landline, telephone number may result in higher toll charges.
4.1.5. If the total for all computed domestic interstate or international call charges includes a fraction of a cent, thefraction will be rounded up to the next whole cent.
4.2. Payment Terms.
4.2.1. Customer agrees to pay for Services at the Rates applicable to Customer’s calling plan and according to the terms of thisAgreement.
4.2.2. All Invoices are due within ten (10) days of the invoice date.
4.2.3. Any disputed charges will be handled according to the applicable Tariff on file.
4.2.4. If Customer pays by credit card, Customer’s payment is also subject to the terms of Customer’s agreement with the credit cardissuer.
4.3. Unauthorized Charges. Customer is responsible to pay all charges for Services provided under this Agreement, including, but not limited to, unauthorizedcharges incurred on calls placed fromCustomer’s premises or authorization code that PAD Technologies has issued to Customer.
4.4. Late Payment Penalties. Unless otherwise stated in a signed agreement a 15% late penalty will be assessed for over 30 days late after which for each additional 5 days a 15% penalty will be assessed additionally the account remains unpaid past the due date unless the invoice is in dispute. An extra late penalty may also be imposed by PAD Technologies if the Client pays late for two consecutive months.
4.5. Returned Check Fee. PAD Technologies may charge Customer$30.00 if Customer’s check, bank draft or electronic funds transfer is returned for insufficient funds, and Customer is responsible forpaying this charge.
5. CUSTOMER’S RESPONSIBILITIES
5.1. Customer’s Duties and Responsibilities. Customer must:
5.1.1. ensure compliance with this Agreement by anyone whoCustomer authorizes to use the Services;
5.1.2. ensure that any of Customer’s equipment and facilities that are connected with any equipment or facilities of PADTechnologies will work satisfactorily with the Services and will not interfere with the Services;
5.1.3. ensure the electrical circuits provide abundant clean powerto the equipment provided by PAD Technologies, any damage caused to the equipment provided by PAD Technologies due to power or any other reason atCustomer’s premises will be the sole responsibility of the Customer and the Customer will be liable to pay for the damages.
5.1.4. cooperate with PAD Technologies in installation, trouble determination and fault isolation;
5.1.5. accept responsibility for cabling that connects equipment not provided by PAD Technologies to Services; and
5.1.6. notify PAD Technologies of any interruption of Service, after ensuring that the interruption is not the result of anything thatCustomer have done or caused by Customer’s equipment.
5.2. Use of Services.
5.2.1. Neither Customer nor Customer’s Authorized Users may use the Services for any unlawful purpose, or in such a way as tointerfere with the use of Services by others. If Customer fails to comply with this Section, Customer releases PAD Technologies from all liabilities or obligationsand Customer must pay PAD Technologies for all costs or damages that PAD Technologiesincurs as a result. That includes but not limited to any use of the Services or any other action that causes a disruption in the network integrity of PADTechnologies or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of theServices at the sole discretion of PAD Technologies. End User understands that neither PAD Technologies nor its vendors are responsible for the content of thetransmissions that may pass through the Internet and/or the Services. End User agrees that itwill NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End Useragrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a chargefor the Services or the Equipment without the advance express written permission of PAD Technologies.
5.2.2. Customer must not permit or assist others to abuse or fraudulently use Services.
5.2.3. If Customer uses the Services in any manner that violates thisSection, PAD Technologies may immediately suspend or terminate Customer’s Service without notice and without further liability to Customer.
5.2.4. 911 AND SERVICE REQUIREMENTS. End User s in service areaswhere PAD Technologies E911 Service is not available and to those End Users in service areas where PAD Technologies E911 Service is available, who do notsubscribe to PAD Technologies E911 Service. Applies to all End Users.
5.2.4.a. 911. END USER ACKNOWLEDGES THAT PAD TECHNOLOGIES'911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS MAY PERFORM DIFFERENTLY THAN TRADITIONAL PSTN E911 SERVICE. ENDUSER AGREES TO NOTIFY ANY USER OF THE SERVICES, WHO MAY PLACE CALLS USING END USER'S SERVICES, OF 911 LIMITATIONS. PADTECHNOLOGIES ADVISES END USER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
5.2.4.b. ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
5.2.4.c. INTERNET ACCESS. END USER ACKNOWLEDGES THAT THESERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
5.2.4.d. NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMSINCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, FAX MACHINES, AND SATELLITE TELEVISION SYSTEMS. END USERHAS NO CLAIM AGAINST PAD TECHNOLOGIES FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
5.2.4.e. PAD TECHNOLOGIES WILL PROVIDE END USER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUESTACKNOWLEDGMENTS FROM END USER. END USER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PADTECHNOLOGIES HAS ADVISED END USER OF THE CIRCUMSTANCES UNDER WHICH PAD TECHNOLOGIES E911 SERVICE MAY NOT BEAVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL911 EMERGENCY DIALING.
5.2.4.f. END USER AGREES TO PLACE A WARNING NOTICE ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENTON WHICH THE SERVICES MAY BE UTILIZED.
The following sections apply to End Users subscribing to VoIP E911Service, which is currently available only in some service areas.
5.2.4.g. PAD TECHNOLOGIES E911 SERVICE IS AVAILABLE AS AN OPTIONAL ADDITIONAL SERVICE TO SUBSCRIBERS IN SELECTED AREAS. ENDUSERS WHO SUBSCRIBE TO PAD TECHNOLOGIES E911SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATIONOF THEIR EQUIPMENT (DTA OR VIDEOPHONE) WITH PAD TECHNOLOGIES, AND MUST SELECT TELEPHONE NUMBER(S) LOCAL TO THE CALLINGAREA WHERE THE EQUIPMENT IS REGISTERED AND THE PAD TECHNOLOGIES E911 SERVICE IS TO BE PROVIDED.
5.2.4.h. END USERS WHO SUBSCRIBE TO PAD TECHNOLOGIES E911SERVICE WILL BE SUBJECT TO A ONE-TIME PROVISIONING FEE AND TO A MONTHLY E911 SERVICE CHARGE. THE PROVISIONING FEE ANDMONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THEAPPLICABLE RESIDENTIAL OR BUSINESS PLAN CHARGES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR PADTECHNOLOGIES E911 SERVICE IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THATREIMBURSES PAD TECHNOLOGIES FOR THE DIRECT COSTS IT INCURS IN PROVIDING PAD TECHNOLOGIES E911 SERVICE, INCLUDING EXPENSESPAD TECHNOLOGIES INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID(LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF E911SERVICES TO END USERS SUBSCRIBING TO THIS OPTIONAL SERVICE. PAD TECHNOLOGIES RESERVES THE RIGHT TO ADJUST THE LEVEL OFCHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEESECTION 11 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR PLAN).
5.2.4.i. WHEN AN END USER DIALS 911 ON A PAD TECHNOLOGIES PHONE LINE WITH E911 SERVICE, PAD TECHNOLOGIES WILL UTILIZE THELOCATION INFORMATION PROVIDED BY END USER AT THE TIMEOF ACTIVATION OF E911 SERVICE. END USER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TOAN EMERGENCY OPERATOR BY PAD TECHNOLOGIES WILL BE BASED UPON THE PHYSICAL LOCATION ON FILE WITH PADTECHNOLOGIES. IN ADDITION, END USER ACKNOWLEDGES THAT IF END USER DOES NOT ACTIVATE E911 SERVICE ON THEIR PADTECHNOLOGIES ACCOUNT, CALLS TO 911 WILL NOT BE ROUTED AND END USER WILL RECEIVE AN AUTOMATED VOICE MESSAGE IFTHEY DIAL 911.END USER ALSO ACKNOWLEDGES THAT PAD TECHNOLOGIES E911SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESECHARACTERISTICS MAY MAKE PAD TECHNOLOGIES E911 SERVICES UNSUITABLE FOR SOME END USERS. BECAUSE END USERCIRCUMSTANCES VARY WIDELY, END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHERTO SUBSCRIBE TO PAD TECHNOLOGIES E911 SERVICE. END USER ACKNOWLEDGES THAT IT IS ENDUSER'S RESPONSIBILITY TO DETERMINETHE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER'S EMERGENCYCALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING ACONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCYCALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH PAD TECHNOLOGIES E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** PAD TECHNOLOGIES E911 SERVICE WILL NOT FUNCTION IF END USER'S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGUREDCORRECTLY OR IF END USER'S PAD TECHNOLOGIES SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO,ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OROTHER ISSUES. IF THERE IS A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFOREBEING ABLE TO USE THE PAD TECHNOLOGIES SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATIONINFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO E911CALLS APPROXIMATELY 7 DAYS AFTER THE SERVICE IS ACTIVATED, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBERAND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING PAD TECHNOLOGIES E911 EMERGENCY SERVICE CALLS MAY NOT HAVEA SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION.THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHOIS MAKING THE PAD TECHNOLOGIES E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORKCONGESTION ON THE PAD TECHNOLOGIES NETWORK, THERE IS A POSSIBILITY THAT A PAD TECHNOLOGIES 911 CALL WILL PRODUCE A BUSYSIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIATRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE PAD TECHNOLOGIES EQUIPMENT WILL BELOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, PAD TECHNOLOGIES E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THECORRECT LOCAL EMERGENCY OPERATOR. END USER ACKNOWLEDGES AND UNDERSTANDS THAT PAD TECHNOLOGIESWILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 USING PAD TECHNOLOGIES OR TO ACCESS AN EMERGENCYSERVICE OPERATOR DUE TO THE 911 DIALINGCHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PADTECHNOLOGIES, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDERWHOM FURNISHES SERVICES TO END USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES,PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF,END USER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSERELATED TO 911 DIALING.
6. CANCELLATION, DISCONTINUATION OR RESTRICTION OF SERVICES
6.1. By Customer. Unless Customer’s Agreement provides otherwise, Customer may cancel Service at any time. To cancel Service, Customer should notifyPAD Technologies and Customer’sLocal Exchange Carrier that Customer wish to change Customer’s long distance service to another carrier, in which case PAD Technologies will cancelCustomer’s Service and close Customer’s account when it receives the order from the Local ExchangeCarrier. In the event:
6.1.1. Customer’s services involve promotional pricing, Customer will owe the difference between the customary established non- promotional price for theservices and the promotional price forthe period of time Customer had services.
6.1.2. Customer’s services involve bundled services and Customer cancels some but less than all services, Customer will owe thedifference between the customary established price for the total of all unbundled services and the bundled price, less the customary established price ofthe services not canceled, for the period Customer had service.
6.1.3. Customer’s services involve a Term Agreement for discount pricing, Customer will owe the difference between the customary established price for theservices and the Term Discount price for the period of time Customer had services.
6.2.1.5. Customer places harassing phone calls to PAD Technologies or any third party, including calls in which Customer uses abusive language: or
6.2.1.6. PAD Technologies is prohibited from furnishing Service by order of a court or other government authority having jurisdiction.
6.2.2. Fraud or Suspected Fraud.
6.2.2.1. PAD Technologies may immediately and without notice block access to its network from particular phone numbers where PAD Technologies isexperiencing toll fraud, or usage of Services in an amount that is not supported by Customer’s credit.
6.2.2.2. PAD Technologies may disconnect calls that are in progress that violate PAD Technologies’ fraud control parameters.
6.2.3. Restricted Service. Under certain circumstances, PAD Technologies may suspend Customer’s Service and routeCustomer’s calls to a receivables operator or a voice response unit if Customer has incurred significant pre-bill charges and one or more of the following apply:
6.2.3.1. PAD Technologies could not obtain credit information about Customer from one of the major credit reporting agencies;
6.2.3.2. Customer has poor credit based on industry standards;
6.2.3.3. Customer has not paid a bill in a timely manner or;
6.2.3.4. Customer’s usage appears to be fraudulent according to standards determined by PAD Technologies.
6.3. Payment Pending Cancellation. PAD Technologies has up to30 days to complete the cancellation or disconnection ofCustomer’s Service. Customer must pay all charges incurred for 30 days after the notice of cancellation/disconnection or until the cancellation/disconnection iscompleted, whichever is sooner. Customer is responsible for paying the entire MRC applicable to Customer’s calling plan for the month Customer’s Serviceterminates.
6.4. BREACH. In the event of End User's breach of the terms of theAgreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse PAD Technologies for allattorney, court, collection and other costs incurred by PAD Technologies in the enforcement of PAD Technologies' rights hereunder and PAD Technologies maykeep any deposits or otherpayments made by End User.
7. DISPUTE RESOLUTION
7.1. This Section applies to any dispute between Customer andPAD Technologies arising out of or relating to this Agreement, including any dispute Customer may have regarding the Services, charges for Services,advertising, or any other dispute that either Customer or PAD Technologies has that is related to this Agreement, even if the dispute arises after Customer’sService has terminated. All disputes must be resolved as described in this Section. CUSTOMER AGREES THAT ANY DISPUTE WILL NOT BE RESOLVED BYA JUDGE OR JURY IN COURT (EXCEPT FOR SMALL CLAIMS COURT, IF APPLICABLE). CUSTOMER FURTHER AGREES THAT ANY DISPUTECUSTOMER MAY HAVE AGAINST PAD TECHNOLOGIES CANNOT BE JOINED WITH THE DISPUTE OF ANY OTHER PERSON OR ENTITY IN ALAWSUIT, ARBITRATION OR ANY OTHER PROCEEDING, OR RESOLVED ON A CLASS-WIDE BASIS.
7.2. If Customer has a dispute with PAD Technologies, Customer must first call PAD Technologies’ Customer Service department atthe number listed on Customer’s invoice or write to PAD Technologies at 5433 Westheimer Rd, Suite 999, Houston, TX 77056, Attention: Manager, CustomerServices, to attempt to resolve Customer’s dispute. Customer must describe Customer’s disputeand provide PAD Technologies with any supporting documentation. Likewise, if PAD Technologies has a dispute with Customer it will notify Customer by lettersent to Customer’s billing address and attempt to resolve it before pursuing arbitration.
7.3. If either party is unable to resolve its dispute within 60 days of notifying the other party of the dispute, either party has the right to take the dispute to smallclaims court if it qualifies under the rules of that court. Alternatively, either party may request arbitration of the dispute through the American ArbitrationAssociation (“AAA”). All disputes related to this Agreement that are not resolved informally or in small claims court, regardless of the legal or equitable theoryunder which they are brought, must be resolved through final and binding arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. §§1-16. ANYREQUEST FOR ARBITRATION OF A DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE MADE WITH THE AAA WITHIN ONEYEAR OF: (a) THE DATE ON WHICH THE FIRST ACTION OR EVENT GIVING RISE TO THE DISPUTE OCCURRED, OR (b) IF THE DISPUTEINVOLVES CLAIMED OVERCHARGES BY PAD TECHNOLOGIES, THE DATE THAT PAD TECHNOLOGIES NOTIFIES CUSTOMER THAT THE CHARGESARE VALID, WHICHEVER IS LATER.
7.4. The arbitration will be conducted by one arbitrator in accordance with the procedures outlined in this Section. Thearbitrator is bound by the terms of this Agreement in conducting the Arbitration and making any award, and may not modify orchange its terms.
7.5. If the dispute involves $10,000.00 or less, the arbitration will be conducted according to the AAA’s Arbitration Rules for the Resolution of Consumer-RelatedDisputes in effect as of the datethat a dispute is submitted to the AAA, as modified by this Agreement. If the dispute involves more than $10,000.00, the arbitration will be conducted according tothe AAA’s Commercial Arbitration Rules in effect as of the date that a dispute is submittedto the AAA, as modified by this Agreement. Customer may obtain a copy of the AAA’s arbitration rules and procedures from Customer’s local AAA office or byvisiting their website at www.adr.org.
7.6. Customer may be represented by an attorney in arbitration. If the dispute involves less than $10,000.00, any in-person arbitration will be held at a locationselected by the AAA in the state or area of Customer’s primary residence. If the dispute involves $10,000.00or more, any in - person arbitration will be held at a location selected by the AAA in the state or area of Customer’s primary residence or in the metropolitanHouston, TX area, at the option of the party filing the demand for arbitration. Customer and PADTechnologies agree to keep all aspects of the arbitration confidential, including any testimony, documents, and award, except as may be required by law or toenforce any arbitration award.
7.7. Each party must pay its own expenses associated with any arbitration, including its attorney’s fees. If Customer files a request for arbitration, Customer willhave to pay a filing fee inaccordance with the AAA fee schedule. Under AAA rules, some costs such as the arbitrator’s fees and expenses will be allocated between the parties.
7.8. The arbitrator may not award punitive, exemplary, or similardamages, or attorneys’ fees. The parties agree that an award of such damages or fees will be void if issued. CUSTOMER AND PAD TECHNOLOGIES BOTHEXPRESSLY WAIVE ANY CLAIMS FOR DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
7.9. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
7.10. In addition to the procedures described in this Section for resolving a dispute, Customer may also have the right to file acomplaint with an appropriate federal or state regulatory agency.
7.11. If any portion of this Dispute Resolution Section is determined to be invalid or unenforceable, the remainder of the Section remains in full force and effect.
8. LIMITATIONS ON PAD TECHNOLOGIES’ LIABILITY. This Section describes the full extent of PAD Technologies’ liability to Customer for any claims inconnection with the Services or this Agreement.
8.1. Liability Limitations.
8.1.1. PAD TECHNOLOGIES’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING FOR ANY PROBLEM CUSTOMEREXPERIENCE WITH THE SERVICES, WILL NOT EXCEED THE AMOUNTCUSTOMER IS CHARGED FOR SERVICES DURING THE AFFECTED PERIOD. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY DAMAGES ARISING OUTOF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, UNAVAILABILITY OR DEFECTS IN THE TRANSMISSION OF THE SERVICES.
8.1.2. PAD TECHNOLOGIES IS NOT LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OREXEMPLARY DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, ARISING OUT OF ITS PROVISION OF SERVICES ORFAILURE TO PROVIDE SERVICES UNDER THIS AGREEMENT.CONSEQUENTIAL, INCIDENTAL, SPECIAL AND INDIRECT DAMAGES INCLUDE BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES ANDLOSS OF BUSINESS OPPORTUNITY; WHETHER OR NOT PAD TECHNOLOGIES WAS AWARE OR SHOULD HAVE BEEN AWARE OFTHE POSSIBILITY OF THESE DAMAGES.
8.1.3. PAD TECHNOLOGIES IS NOT LIABLE FOR ANY FAILURE OF PERFORMANCE DUE TO CAUSES BEYOND ITS CONTROL, INCLUDING,BUT NOT LIMITED TO, ACTS OF GOD, FIRES, METEOROLOGICAL PHENOMENA, FLOODS OR OTHER CATASTROPHES; NATIONAL EMERGENCIES,INSURRECTIONS, RIOTS, TERRORIST’S ACTS OR WARS, STRIKES, LOCKOUTS, WORK STOPPAGES, OR OTHER LABORDIFFICULTIES, ACTS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO LOCAL OR FOREIGN TELEPHONE COMPANIES; AND ANY LAW, ORDER,REGULATION OR OTHER ACTION OF ANY GOVERNMENTAL ENTITY.
8.1.4. THIS SECTION CONTINUES TO APPLY AFTER THE AGREEMENT ENDS.
8.2. No Warranties. PAD TECHNOLOGIES MAKES NO EXPRESS OR IMPLIED WARRANTIES ABOUT ITS SERVICES THAT ARE NOT EXPRESSLYCONTAINED IN THIS AGREEMENT. PAD TECHNOLOGIES DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIESOF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PAD TECHNOLOGIES ALSO MAKES NO WARRANTY THATTHE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER MAY NOT RELY ON STATEMENTS OF WARRANTY ABOUT PADTECHNOLOGIES’ SERVICES; SUCH STATEMENTS ARE NOT AUTHORIZED BY PAD TECHNOLOGIES AND ARE NOT A WARRANTYBY PAD TECHNOLOGIES or its subsidiaries.
8.3. Exclusions. PAD Technologies is not liable for claims or damages from:
8.3.1. Customer’s or Customer’s Authorized Users’ fault, negligenceor failure to perform Customer’s responsibilities;
8.3.2. third party claims against Customer that arise out ofCustomer’s or Customer’s Authorized Users’ use of the Services;
8.3.3. claims for third party acts or omissions;
8.3.4. Customer or Customer’s Authorized Users’ acts or omissions;
8.3.5. the acts or omissions of any non-PAD Technologies entity furnishing equipment, services or facilities for use with Services;
8.3.6. claims from a breach in the privacy or security of communications transmitted over PAD Technologies' network;
8.3.7. claims due to fraudulent or unauthorized use of the Services provided to Customer, or unauthorized use of Customer’stelephone facilities to place calls on the PAD Technologies network; or
8.3.8. a problem with the interconnection of PAD Technologies’ Services with the services or equipment of some other party.
8.3.9. EXPORT COMPLIANCE. End User agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materialsvia the Services. End User agrees to comply with applicable local, state and federal regulationsgoverning the locality in which the Equipment and Services are used.
8.3.10. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End Usershall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by PAD Technologies or its vendors.
8.3.11. SOFTWARE COPYRIGHT. Any software used by PAD Technologies to provide the Services and any software provided to End User in conjunction withproviding the Services areprotected by copyright law and international treaty provisions. EndUser may not copy the software or any portion of it.
8.3.12. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). PAD Technologies shall not be liable for any delay in performancedirectly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties,equipment failure, late delivery by suppliersor other difficulties of PAD Technologies as may occur in spite ofPAD Technologies' best efforts.
INDEMNIFICATION. Furthermore, End User agrees to defend, indemnify and hold PAD Technologies, any and all of its subsidiaries, affiliates and its vendorsharmless from any claims or damages relating to this Agreement.
9. CUSTOMER’S LIABILITY. Customer will indemnify, defend and hold PAD Technologies harmless from all claims and demands by third parties for loss ordamages arising out of the use of Services by Customer or Customer’s Authorized User, including but not limited to: claims of libel, slander, or the infringement ofcopyright; claims for the unauthorized use of any trademark, trade name, or service mark arising from the material transmitted over the Services; claims ofinfringement of patents arising from, combining with, or using in connection with, the Services, any apparatus and or systems furnished by Customer orCustomer’s Authorized User; and all other claims arising out of any act or omission of Customer or Customer’s Authorized User in connection with the Services.
10. INTERNATIONAL SERVICES
10.1. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the end-to-endinternational service or facilities they provide, certain limitations or restrictions that may limit Customer’s ability or that of Customer’s Authorized Users to usethe PAD Technologies Services. Customer or Customer’s Authorized User must conform to any limitations orrestrictions imposed by the foreign carriers or agencies.
10.2. Foreign Carrier Acts or Omissions.
10.2.1. When other U.S. or foreign carriers and ForeignTelecommunications Administrations use facilities to establish connect ions to points not reached by PAD Technologies’ facilities,PAD Technologies is not liable for acts or omissions of other carriers or Foreign Telecommunications Administrations.
10.2.2. International calls are priced on the basis of the countryand city codes dialed by Customer. When the facilities of other U.S. or foreign carriers are used in establishing connections to points not reached by PADTechnologies' facilities, PAD Technologies is not liable for refunds or damages if those calls do not terminate in the country, city, or area codes normallyassociated with the called number.
11. PRIVACY
11.1. Information Obtained Online. PAD Technologies’ privacy policy governing information about Customer that PAD Technologies obtains over the Internet isat www.padtechnologies.com.
11.2. Customer Proprietary Network Information. As PAD Technologies provides Services to Customer, PAD Technologies develops information about thequantity, technical configuration,type, destination, amount of Services Customer uses, and other information found on Customer’s bill ("Customer Information"). In order to serve Customer in themost effective and efficient manner, PAD Technologies may use Customer’s CustomerInformation for purposes of determining and offering other PAD Technologies products and services that may interest Customer. However, if Customer so desire,PAD Technologies will not useCustomer’s Customer Information to offer Customer products and services that is unrelated to the Services Customer currently receive from PAD Technologies. IfCustomer would prefer that PAD Technologies not use Customer’s Customer Information for this purpose, please call the number on Customer’s invoice.
12. MISCELLANEOUS
12.1. No Waiver of Rights. If either party fails to enforce any right or remedy under this Agreement, that does not waive the right or remedy for any other breachor failure.
12.2. No Third Party Beneficiaries. The parties do not extend this Agreement’s benefits to any third party, unless expressly stated in this Agreement.
12.3. Governing Law. This Agreement and all claims relating to therelationship between the parties are governed by federal law and the laws of the State of Texas, but excluding Texas’s choice of law principles.
12.4. Severability. If any provision is held to be illegal, or unenforceable, this Agreement’s unaffected provisions will remain in effect.
12.5. Headings of No Force or Effect. Headings in this Agreementare for reference only and have no effect on any provision’s meaning.
12.6. Assignment. Customer may not assign this Agreement without the express written consent of PAD Technologies, whichmay not be unreasonably withheld. PAD Technologies may assign this Agreement.
12.7. Notices. Any notices that PAD Technologies must giveCustomer under this Agreement will be made in at least one of the following ways: postcard or letter mailed to the most recentaddress on Customer’s account, bill message, bill insert, e-mail to an address provided by Customer, recorded announcement, posting on the PAD Technologieswebsite, call to Customer’s billedtelephone number and speaking to Customer or leaving a message, or newspaper ad.
12.8. PAD Technologies’ Trademarks. Customer may not use thePAD Technologies or any and all of its subsidiaries’ name or logo, the name or trademark of the Services, or the PAD Technologiesaccess code in any promotional materials, web site pages, or similar media without PAD Technologies’ or any and all of its subsidiaries’ prior written approval.
12.9. Entire Agreement. These Terms and Conditions and applicable Rate Schedules, as may be modified by PAD Technologies from time to time,constitute the entire agreementbetween Customer and PAD Technologies. No prior agreements, understanding, statements, proposals or representation, either oral or written, apply. No writtenor oral statement, advertisement or service description not expressly contained in this Agreement canbe used to alter or supplement its terms. Customer may not rely on any representations or statements not contained in this Agreement.
12.10. DEFINITIONS:
12.10.1. Authorized User - a person, firm, or corporation, who is authorized by Customer to use Customer’s Services.
12.10.2. Automatic Number Identification – the calling telephonenumber identification that will be forwarded to PAD Technologies’ network by the Local Exchange Company (LEC) as a call is placed.
12.10.3. Customer, Subscriber, or “you” –
12.10.3.1. The person or other entity, having a communications requirement of its own and responsible for both the payment of charges and compliance with theAgreement; or
12.10.3.2. Any person with actual or apparent authority torepresent that person or to use the Services.
12.10.4. Local Telephone Company or Local Exchange Carrier(LEC) - a company that furnishes local exchange service.
12.10.5. Location - a physical premise to or from which PAD Technologies provides Service. In instances where Customer obtains Services fromPAD Technologies at multiple Locations, each of these Locations will be designated as either "Associated" or "Non-Associated."
12.10.6. Minimum Usage Charge (MUC) – a minimum charge forServices for which Customer is invoiced and that Customer must pay each month. Customer’s usage of the Services is applied against the MUC. If the chargesfor Customer’s monthly usage are less than the MUC, Customer must pay the entire amount of the MUC. To the extent charges for Customer’s usage exceedthe MUC, Customer will be required to pay the additional charges according to Customer’s calling plan.
12.10.7. Monthly Recurring Charge (MRC) – a charge for Services for which Customer is invoiced and that Customer must pay eachmonth.
12.10.8. Pay-Per-Call Services - those telecommunications services in which the called party assesses the calling party a charge that isnot dependent on the existence of a pre-subscription relationship and for which the caller pays a per-call or per-time-interval charge that is greater than, or inaddition to, the charge for transmission ofthe call.
12.10.9. Premises - a building or buildings on contiguous property(except railroad rights-of-way, etc.).
12.10.10. Public/Semi-Public Payphone - a coin operated or coinless telephone that is generally available for public use in theU.S. Mainland, Hawaii, Puerto Rico and the U.S. Virgin Islands. These telephones can be owned by local telephone companies, inter- exchange carriers and/orprivate Customers. Calls from coinlesstelephones must use an alternate billing method such as calling card, commercial credit card, third number or collect.
12.10.11. Services - the state-to-state and international telecommunications service offerings provided by PADTechnologies and purchased by Customer.
12.10.12. State -to-State Calling - Dial-1 and Operator state-to- state services are available to Customers in the U.S. Mainland, Hawaii, Puerto Rico and theU.S. Virgin Islands. State-to-state callsmay terminate to the U.S. Mainland, Alaska, Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam and CNMI, unless otherwise specified in the product.
12.10.13. Tariffs – All Tariffs applicable to the Services being offered.These Tariffs are on file and available for public view at the appropriate Regulatory Commission.
1. APPLICATION OF TERMS AND CONDITIONS OF SERVICE
1.1. General Application. These Terms and Conditions of Service and all applicable Tariffs (“Terms and Conditions”), together with the current rates andrestrictions applicable to Customer’s callingplan, constitute Customer’s agreement with PAD Technologies (“Agreement”) for the Services that Customer purchases from PAD TECHNOLOGIES, INC.(“PAD TECHNOLOGIES”). The Rate Schedules and Tariffs are incorporated into this Agreement by reference andare a part of this Agreement. CUSTOMER’S ENROLLMENT IN, USE OF OR PAYMENT FOR THE SERVICES CONSTITUTES CUSTOMER’S ACCEPTANCEOF AND AGREEMENT TO THIS AGREEMENT. IFCUSTOMER DOES NOT AGREE WITH PAD TECHNOLOGIES’ RATE SCHEDULES OR TERMS AND CONDITIONS, ACCEPTABLE USE POLICY (AUP)AND TERMS OF SERVICE (TOS). DO NOT USE THE SERVICES AND CALL PAD TECHNOLOGIES CUSTOMER SERVICE IMMEDIATELY FORINSTRUCTIONS ON HOW TO CANCEL THE SERVICES.
1.2. Changes to Rates, Terms and Conditions. PAD Technologies reserves the right to change its Terms and Conditions at any time. All changes to existingservice, product offerings, Terms and Conditions, Terms Of Service (TOS) and Acceptable Use Policy (AUP) will be posted on PBXPAD’ website atwww.pbxpad.net and/or www.padtechnologies.com before they become effective. In addition, PAD Technologies may notify Customer in advance of anysignificant Rate changes, including any increases to the Rates applicable to Customer’s calling plan, in one of the other ways identified in Section 12.7.Customer may also obtain information on Rate Schedules or a copy of the current Terms and Conditions, Terms Of Service (TOS) and Acceptable Use Policy(AUP) in any of the following ways: by calling the PAD Technologies Customer Service number printed on Customer’s invoice; by w riting to: PADTechnologies Customer Service, 5433 Westheimer Rd, Suite 999, Houston, TX, 77056; or, on its web sites mentioned above.
1.2. TELEPHONE NUMBER. Any telephone number provided by PAD Technologies ("Number") to the End User shall be leased and not sold. End User is notto use the Number with any other device otherthan the Equipment without the express written permission of PAD Technologies. PAD Technologies reserves the right to change, cancel or move the Number atits sole discretion.
1.3. CUSTOMER’S CONTINUED USE OF THE SERVICES CONSTITUTES CUSTOMER’S AGREEMENT TO PAD TECHNOLOGIES’ RATES, TERMS ANDCONDITIONS, ACCEPTABLE USE POLICY (AUP) AND TERMS OF SERVICE (TOS) THAT ARE IN EFFECT AT THE TIME CUSTOMER USES THESERVICES.
2. SERVICES.2.1. Charges. Customer agrees to pay for Services at the currentRates and subject to any restrictions applicable to Customer’s calling plan, which are set forth on the Rate Schedules. In addition to the Rates for using theServices, taxes and surcharges may also apply to Customer’s Services. These additional charges are set forth in Section 3 and 4.
2.2. Requirements for Obtaining Service. Before Customer receives Services, PAD Technologies will require Customer to: (a) agree to a documentauthorizing changes in Customer’s existing longdistance services; and (b) verify that Customer is authorized to order Service at all Locations that Customer designates and that Customer assumes financialresponsibility for Services to those Locations. PAD Technologies may also require Customer toestablish credit as described in Section 4.
2.3. Order Acceptance. PAD Technologies may accept or reject Customer’s order for Services in its sole discretion. PAD Technologies will activate theServices as soon as practical afterreceiving Customer’s order, unless PAD Technologies tellsCustomer otherwise. PAD Technologies’ obligation to provide Services is subject to its ability to procure, construct and maintain necessary facilities. PADTechnologies will undertake commercially reasonable efforts to secure necessary facilities, so long as obtaining the facilities or fulfilling Customer’s order forServices does not adversely affect PAD Technologies’ present services. PAD Technologies’ liability for any delay in activating Services is limited as set forth inSection 8.
2.4. Term of Agreement.This Agreement shall continue in force for the term of Three (3)years after the date of Installation / Commencement of service and or execution of the agreement or as selected in Appendix A – “Fee Schedule Order Form” and shall thereafter renew automatically for successive terms equal to the original term. Either party may terminate this Agreement by delivering written notice of termination to the other party no later than 60 (Sixty) days before the expiration of any service period. Any obligations that are incurred from early termination of the contract including but not limited to circuit charges and reduced installation charges are the responsibility of the Client. PAD Technologies may assess fees for early termination up to 100% of the amount of the remaining monthly fees or $1000, whichever is greater, if Client terminates or cancels order prior to service delivery or terminates or cancels service before the end of the service period. Furthermore unless otherwise stated in a signed agreement Client Understands and agrees that the term of the services provided under the Agreement will add an additional One (1)year to the existing agreement at the end of the original term if the date of execution of any added new TN’s (Telephone Number’s) or cancellations or any modifications to the existing TN’s and or related services such as any IVR’s and extension’s are within the last 12 months of the term, and shall renew automatically after the end of the additional term for successive terms equal to the original term or successive one-year periods. It may only be terminated immediately upon occurrence of a material breach of the terms set forth herein after written notice is provided to the breaching party.
3. TAXES AND SURCHARGES. Some or all of the following charges may apply to Customer’s calling plan. The charges described in this Section are inaddition to all other Rates.
3.1. Regulatory Programs. Customer must pay additional chargesthat PAD Technologies may impose to recover amounts PAD Technologies is required by regulatory or other governmental authorities to collect on behalf of or payto others in support of statutory or regulatory programs.
3.2. Payphone Surcharge. Customer will incur a per-call surcharge of $0.30 for all calls that PAD Technologies identifies as originating from a Public or Semi-Public Payphone. These include prepaid card calls and toll free calls originating from a Public or Semi-PublicPayphone.
3.3. Other Taxes. Customer must pay all excise, sales, use or other similar taxes levied by a governing body or bodies for Services, unless Customer providePAD Technologies with proof thatCustomer is exempt from paying those taxes.
4. PAYMENT OF CHARGES
4.1. Billing.
4.1.1. PAD Technologies will begin charging Customer for Services when they are available for Customer’s use.
4.1.2. PAD Technologies will bill Customer for Services monthly. PADTechnologies will bill Customer for usage accrued beginning immediately upon access to the Services and for usage occurring during a billing cycle. Except forMonthly Recurring Charges (“MRCs”), PAD Technologies bills Customer for charges one month in arrears. Otherwise, PAD Technologies will bill Customer theMRC in effect on the first day of Customer’s billing cycle.
4.1.3. PAD Technologies will bill any MRC applicable to Customer’s calling plan in advance of Service, except for the initial month (orfraction thereof). PAD Technologies will bill the MRC for the initial month (or fraction thereof) on Customer’s first invoice, so that the first bill Customer receiveswill include a MRC for the first month (or a pro-rated MRC for a partial month) plus the MRC for the nextmonth's Service. PAD Technologies will not prorate the MRC for a partial month's Service when Customer cancels Service.
4.1.4. PAD Technologies will bill Customer in increments as stated in the Rates applicable to Customer’s calling plan.
4.1.4.a. TOLL CHARGES. Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"),including other VoIP networks, is subject to the then applicable toll charges that are associatedwith the Plan. Calls to a phone number outside the United States and Canada to a non-PAD Technologies’ phone number will be charged at the current ratespublished on the PAD Technologies website. The duration of each call is to be calculated in oneminute increments and rounded up to the nearest one minutesubject to the then applicable toll charges that are associatedwith the Plan. Calls to a phone number outside the United States and Canada to a non-PAD Technologies’ phone number will be charged at the current ratespublished on the PAD Technologies website. The duration of each call is to be calculated in oneminute increments and rounded up to the nearest one minuteincrement for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Ifthe computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials anInternational PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to anInternational mobile, rather than landline, telephone number may result in higher toll charges.
4.1.5. If the total for all computed domestic interstate or international call charges includes a fraction of a cent, thefraction will be rounded up to the next whole cent.
4.2. Payment Terms.
4.2.1. Customer agrees to pay for Services at the Rates applicable to Customer’s calling plan and according to the terms of thisAgreement.
4.2.2. All Invoices are due within ten (10) days of the invoice date.
4.2.3. Any disputed charges will be handled according to the applicable Tariff on file.
4.2.4. If Customer pays by credit card, Customer’s payment is also subject to the terms of Customer’s agreement with the credit cardissuer.
4.3. Unauthorized Charges. Customer is responsible to pay all charges for Services provided under this Agreement, including, but not limited to, unauthorizedcharges incurred on calls placed fromCustomer’s premises or authorization code that PAD Technologies has issued to Customer.
4.4. Late Payment Penalties. Unless otherwise stated in a signed agreement a 15% late penalty will be assessed for over 30 days late after which for each additional 5 days a 15% penalty will be assessed additionally the account remains unpaid past the due date unless the invoice is in dispute. An extra late penalty may also be imposed by PAD Technologies if the Client pays late for two consecutive months.
4.5. Returned Check Fee. PAD Technologies may charge Customer$30.00 if Customer’s check, bank draft or electronic funds transfer is returned for insufficient funds, and Customer is responsible forpaying this charge.
5. CUSTOMER’S RESPONSIBILITIES
5.1. Customer’s Duties and Responsibilities. Customer must:
5.1.1. ensure compliance with this Agreement by anyone whoCustomer authorizes to use the Services;
5.1.2. ensure that any of Customer’s equipment and facilities that are connected with any equipment or facilities of PADTechnologies will work satisfactorily with the Services and will not interfere with the Services;
5.1.3. ensure the electrical circuits provide abundant clean powerto the equipment provided by PAD Technologies, any damage caused to the equipment provided by PAD Technologies due to power or any other reason atCustomer’s premises will be the sole responsibility of the Customer and the Customer will be liable to pay for the damages.
5.1.4. cooperate with PAD Technologies in installation, trouble determination and fault isolation;
5.1.5. accept responsibility for cabling that connects equipment not provided by PAD Technologies to Services; and
5.1.6. notify PAD Technologies of any interruption of Service, after ensuring that the interruption is not the result of anything thatCustomer have done or caused by Customer’s equipment.
5.2. Use of Services.
5.2.1. Neither Customer nor Customer’s Authorized Users may use the Services for any unlawful purpose, or in such a way as tointerfere with the use of Services by others. If Customer fails to comply with this Section, Customer releases PAD Technologies from all liabilities or obligationsand Customer must pay PAD Technologies for all costs or damages that PAD Technologiesincurs as a result. That includes but not limited to any use of the Services or any other action that causes a disruption in the network integrity of PADTechnologies or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of theServices at the sole discretion of PAD Technologies. End User understands that neither PAD Technologies nor its vendors are responsible for the content of thetransmissions that may pass through the Internet and/or the Services. End User agrees that itwill NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End Useragrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a chargefor the Services or the Equipment without the advance express written permission of PAD Technologies.
5.2.2. Customer must not permit or assist others to abuse or fraudulently use Services.
5.2.3. If Customer uses the Services in any manner that violates thisSection, PAD Technologies may immediately suspend or terminate Customer’s Service without notice and without further liability to Customer.
5.2.4. 911 AND SERVICE REQUIREMENTS. End User s in service areaswhere PAD Technologies E911 Service is not available and to those End Users in service areas where PAD Technologies E911 Service is available, who do notsubscribe to PAD Technologies E911 Service. Applies to all End Users.
5.2.4.a. 911. END USER ACKNOWLEDGES THAT PAD TECHNOLOGIES'911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS MAY PERFORM DIFFERENTLY THAN TRADITIONAL PSTN E911 SERVICE. ENDUSER AGREES TO NOTIFY ANY USER OF THE SERVICES, WHO MAY PLACE CALLS USING END USER'S SERVICES, OF 911 LIMITATIONS. PADTECHNOLOGIES ADVISES END USER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
5.2.4.b. ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
5.2.4.c. INTERNET ACCESS. END USER ACKNOWLEDGES THAT THESERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
5.2.4.d. NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMSINCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, FAX MACHINES, AND SATELLITE TELEVISION SYSTEMS. END USERHAS NO CLAIM AGAINST PAD TECHNOLOGIES FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
5.2.4.e. PAD TECHNOLOGIES WILL PROVIDE END USER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUESTACKNOWLEDGMENTS FROM END USER. END USER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PADTECHNOLOGIES HAS ADVISED END USER OF THE CIRCUMSTANCES UNDER WHICH PAD TECHNOLOGIES E911 SERVICE MAY NOT BEAVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL911 EMERGENCY DIALING.
5.2.4.f. END USER AGREES TO PLACE A WARNING NOTICE ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENTON WHICH THE SERVICES MAY BE UTILIZED.
The following sections apply to End Users subscribing to VoIP E911Service, which is currently available only in some service areas.
5.2.4.g. PAD TECHNOLOGIES E911 SERVICE IS AVAILABLE AS AN OPTIONAL ADDITIONAL SERVICE TO SUBSCRIBERS IN SELECTED AREAS. ENDUSERS WHO SUBSCRIBE TO PAD TECHNOLOGIES E911SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATIONOF THEIR EQUIPMENT (DTA OR VIDEOPHONE) WITH PAD TECHNOLOGIES, AND MUST SELECT TELEPHONE NUMBER(S) LOCAL TO THE CALLINGAREA WHERE THE EQUIPMENT IS REGISTERED AND THE PAD TECHNOLOGIES E911 SERVICE IS TO BE PROVIDED.
5.2.4.h. END USERS WHO SUBSCRIBE TO PAD TECHNOLOGIES E911SERVICE WILL BE SUBJECT TO A ONE-TIME PROVISIONING FEE AND TO A MONTHLY E911 SERVICE CHARGE. THE PROVISIONING FEE ANDMONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THEAPPLICABLE RESIDENTIAL OR BUSINESS PLAN CHARGES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR PADTECHNOLOGIES E911 SERVICE IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THATREIMBURSES PAD TECHNOLOGIES FOR THE DIRECT COSTS IT INCURS IN PROVIDING PAD TECHNOLOGIES E911 SERVICE, INCLUDING EXPENSESPAD TECHNOLOGIES INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID(LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF E911SERVICES TO END USERS SUBSCRIBING TO THIS OPTIONAL SERVICE. PAD TECHNOLOGIES RESERVES THE RIGHT TO ADJUST THE LEVEL OFCHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEESECTION 11 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR PLAN).
5.2.4.i. WHEN AN END USER DIALS 911 ON A PAD TECHNOLOGIES PHONE LINE WITH E911 SERVICE, PAD TECHNOLOGIES WILL UTILIZE THELOCATION INFORMATION PROVIDED BY END USER AT THE TIMEOF ACTIVATION OF E911 SERVICE. END USER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TOAN EMERGENCY OPERATOR BY PAD TECHNOLOGIES WILL BE BASED UPON THE PHYSICAL LOCATION ON FILE WITH PADTECHNOLOGIES. IN ADDITION, END USER ACKNOWLEDGES THAT IF END USER DOES NOT ACTIVATE E911 SERVICE ON THEIR PADTECHNOLOGIES ACCOUNT, CALLS TO 911 WILL NOT BE ROUTED AND END USER WILL RECEIVE AN AUTOMATED VOICE MESSAGE IFTHEY DIAL 911.END USER ALSO ACKNOWLEDGES THAT PAD TECHNOLOGIES E911SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESECHARACTERISTICS MAY MAKE PAD TECHNOLOGIES E911 SERVICES UNSUITABLE FOR SOME END USERS. BECAUSE END USERCIRCUMSTANCES VARY WIDELY, END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHERTO SUBSCRIBE TO PAD TECHNOLOGIES E911 SERVICE. END USER ACKNOWLEDGES THAT IT IS ENDUSER'S RESPONSIBILITY TO DETERMINETHE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER'S EMERGENCYCALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING ACONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCYCALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH PAD TECHNOLOGIES E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** PAD TECHNOLOGIES E911 SERVICE WILL NOT FUNCTION IF END USER'S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGUREDCORRECTLY OR IF END USER'S PAD TECHNOLOGIES SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO,ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OROTHER ISSUES. IF THERE IS A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFOREBEING ABLE TO USE THE PAD TECHNOLOGIES SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATIONINFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO E911CALLS APPROXIMATELY 7 DAYS AFTER THE SERVICE IS ACTIVATED, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBERAND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING PAD TECHNOLOGIES E911 EMERGENCY SERVICE CALLS MAY NOT HAVEA SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION.THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHOIS MAKING THE PAD TECHNOLOGIES E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORKCONGESTION ON THE PAD TECHNOLOGIES NETWORK, THERE IS A POSSIBILITY THAT A PAD TECHNOLOGIES 911 CALL WILL PRODUCE A BUSYSIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIATRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE PAD TECHNOLOGIES EQUIPMENT WILL BELOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, PAD TECHNOLOGIES E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THECORRECT LOCAL EMERGENCY OPERATOR. END USER ACKNOWLEDGES AND UNDERSTANDS THAT PAD TECHNOLOGIESWILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 USING PAD TECHNOLOGIES OR TO ACCESS AN EMERGENCYSERVICE OPERATOR DUE TO THE 911 DIALINGCHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PADTECHNOLOGIES, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDERWHOM FURNISHES SERVICES TO END USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES,PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF,END USER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSERELATED TO 911 DIALING.
6. CANCELLATION, DISCONTINUATION OR RESTRICTION OF SERVICES
6.1. By Customer. Unless Customer’s Agreement provides otherwise, Customer may cancel Service at any time. To cancel Service, Customer should notifyPAD Technologies and Customer’sLocal Exchange Carrier that Customer wish to change Customer’s long distance service to another carrier, in which case PAD Technologies will cancelCustomer’s Service and close Customer’s account when it receives the order from the Local ExchangeCarrier. In the event:
6.1.1. Customer’s services involve promotional pricing, Customer will owe the difference between the customary established non- promotional price for theservices and the promotional price forthe period of time Customer had services.
6.1.2. Customer’s services involve bundled services and Customer cancels some but less than all services, Customer will owe thedifference between the customary established price for the total of all unbundled services and the bundled price, less the customary established price ofthe services not canceled, for the period Customer had service.
6.1.3. Customer’s services involve a Term Agreement for discount pricing, Customer will owe the difference between the customary established price for theservices and the Term Discount price for the period of time Customer had services.
6.2.1.5. Customer places harassing phone calls to PAD Technologies or any third party, including calls in which Customer uses abusive language: or
6.2.1.6. PAD Technologies is prohibited from furnishing Service by order of a court or other government authority having jurisdiction.
6.2.2. Fraud or Suspected Fraud.
6.2.2.1. PAD Technologies may immediately and without notice block access to its network from particular phone numbers where PAD Technologies isexperiencing toll fraud, or usage of Services in an amount that is not supported by Customer’s credit.
6.2.2.2. PAD Technologies may disconnect calls that are in progress that violate PAD Technologies’ fraud control parameters.
6.2.3. Restricted Service. Under certain circumstances, PAD Technologies may suspend Customer’s Service and routeCustomer’s calls to a receivables operator or a voice response unit if Customer has incurred significant pre-bill charges and one or more of the following apply:
6.2.3.1. PAD Technologies could not obtain credit information about Customer from one of the major credit reporting agencies;
6.2.3.2. Customer has poor credit based on industry standards;
6.2.3.3. Customer has not paid a bill in a timely manner or;
6.2.3.4. Customer’s usage appears to be fraudulent according to standards determined by PAD Technologies.
6.3. Payment Pending Cancellation. PAD Technologies has up to30 days to complete the cancellation or disconnection ofCustomer’s Service. Customer must pay all charges incurred for 30 days after the notice of cancellation/disconnection or until the cancellation/disconnection iscompleted, whichever is sooner. Customer is responsible for paying the entire MRC applicable to Customer’s calling plan for the month Customer’s Serviceterminates.
6.4. BREACH. In the event of End User's breach of the terms of theAgreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse PAD Technologies for allattorney, court, collection and other costs incurred by PAD Technologies in the enforcement of PAD Technologies' rights hereunder and PAD Technologies maykeep any deposits or otherpayments made by End User.
7. DISPUTE RESOLUTION
7.1. This Section applies to any dispute between Customer andPAD Technologies arising out of or relating to this Agreement, including any dispute Customer may have regarding the Services, charges for Services,advertising, or any other dispute that either Customer or PAD Technologies has that is related to this Agreement, even if the dispute arises after Customer’sService has terminated. All disputes must be resolved as described in this Section. CUSTOMER AGREES THAT ANY DISPUTE WILL NOT BE RESOLVED BYA JUDGE OR JURY IN COURT (EXCEPT FOR SMALL CLAIMS COURT, IF APPLICABLE). CUSTOMER FURTHER AGREES THAT ANY DISPUTECUSTOMER MAY HAVE AGAINST PAD TECHNOLOGIES CANNOT BE JOINED WITH THE DISPUTE OF ANY OTHER PERSON OR ENTITY IN ALAWSUIT, ARBITRATION OR ANY OTHER PROCEEDING, OR RESOLVED ON A CLASS-WIDE BASIS.
7.2. If Customer has a dispute with PAD Technologies, Customer must first call PAD Technologies’ Customer Service department atthe number listed on Customer’s invoice or write to PAD Technologies at 5433 Westheimer Rd, Suite 999, Houston, TX 77056, Attention: Manager, CustomerServices, to attempt to resolve Customer’s dispute. Customer must describe Customer’s disputeand provide PAD Technologies with any supporting documentation. Likewise, if PAD Technologies has a dispute with Customer it will notify Customer by lettersent to Customer’s billing address and attempt to resolve it before pursuing arbitration.
7.3. If either party is unable to resolve its dispute within 60 days of notifying the other party of the dispute, either party has the right to take the dispute to smallclaims court if it qualifies under the rules of that court. Alternatively, either party may request arbitration of the dispute through the American ArbitrationAssociation (“AAA”). All disputes related to this Agreement that are not resolved informally or in small claims court, regardless of the legal or equitable theoryunder which they are brought, must be resolved through final and binding arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. §§1-16. ANYREQUEST FOR ARBITRATION OF A DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE MADE WITH THE AAA WITHIN ONEYEAR OF: (a) THE DATE ON WHICH THE FIRST ACTION OR EVENT GIVING RISE TO THE DISPUTE OCCURRED, OR (b) IF THE DISPUTEINVOLVES CLAIMED OVERCHARGES BY PAD TECHNOLOGIES, THE DATE THAT PAD TECHNOLOGIES NOTIFIES CUSTOMER THAT THE CHARGESARE VALID, WHICHEVER IS LATER.
7.4. The arbitration will be conducted by one arbitrator in accordance with the procedures outlined in this Section. Thearbitrator is bound by the terms of this Agreement in conducting the Arbitration and making any award, and may not modify orchange its terms.
7.5. If the dispute involves $10,000.00 or less, the arbitration will be conducted according to the AAA’s Arbitration Rules for the Resolution of Consumer-RelatedDisputes in effect as of the datethat a dispute is submitted to the AAA, as modified by this Agreement. If the dispute involves more than $10,000.00, the arbitration will be conducted according tothe AAA’s Commercial Arbitration Rules in effect as of the date that a dispute is submittedto the AAA, as modified by this Agreement. Customer may obtain a copy of the AAA’s arbitration rules and procedures from Customer’s local AAA office or byvisiting their website at www.adr.org.
7.6. Customer may be represented by an attorney in arbitration. If the dispute involves less than $10,000.00, any in-person arbitration will be held at a locationselected by the AAA in the state or area of Customer’s primary residence. If the dispute involves $10,000.00or more, any in - person arbitration will be held at a location selected by the AAA in the state or area of Customer’s primary residence or in the metropolitanHouston, TX area, at the option of the party filing the demand for arbitration. Customer and PADTechnologies agree to keep all aspects of the arbitration confidential, including any testimony, documents, and award, except as may be required by law or toenforce any arbitration award.
7.7. Each party must pay its own expenses associated with any arbitration, including its attorney’s fees. If Customer files a request for arbitration, Customer willhave to pay a filing fee inaccordance with the AAA fee schedule. Under AAA rules, some costs such as the arbitrator’s fees and expenses will be allocated between the parties.
7.8. The arbitrator may not award punitive, exemplary, or similardamages, or attorneys’ fees. The parties agree that an award of such damages or fees will be void if issued. CUSTOMER AND PAD TECHNOLOGIES BOTHEXPRESSLY WAIVE ANY CLAIMS FOR DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
7.9. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
7.10. In addition to the procedures described in this Section for resolving a dispute, Customer may also have the right to file acomplaint with an appropriate federal or state regulatory agency.
7.11. If any portion of this Dispute Resolution Section is determined to be invalid or unenforceable, the remainder of the Section remains in full force and effect.
8. LIMITATIONS ON PAD TECHNOLOGIES’ LIABILITY. This Section describes the full extent of PAD Technologies’ liability to Customer for any claims inconnection with the Services or this Agreement.
8.1. Liability Limitations.
8.1.1. PAD TECHNOLOGIES’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING FOR ANY PROBLEM CUSTOMEREXPERIENCE WITH THE SERVICES, WILL NOT EXCEED THE AMOUNTCUSTOMER IS CHARGED FOR SERVICES DURING THE AFFECTED PERIOD. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY DAMAGES ARISING OUTOF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, UNAVAILABILITY OR DEFECTS IN THE TRANSMISSION OF THE SERVICES.
8.1.2. PAD TECHNOLOGIES IS NOT LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OREXEMPLARY DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, ARISING OUT OF ITS PROVISION OF SERVICES ORFAILURE TO PROVIDE SERVICES UNDER THIS AGREEMENT.CONSEQUENTIAL, INCIDENTAL, SPECIAL AND INDIRECT DAMAGES INCLUDE BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES ANDLOSS OF BUSINESS OPPORTUNITY; WHETHER OR NOT PAD TECHNOLOGIES WAS AWARE OR SHOULD HAVE BEEN AWARE OFTHE POSSIBILITY OF THESE DAMAGES.
8.1.3. PAD TECHNOLOGIES IS NOT LIABLE FOR ANY FAILURE OF PERFORMANCE DUE TO CAUSES BEYOND ITS CONTROL, INCLUDING,BUT NOT LIMITED TO, ACTS OF GOD, FIRES, METEOROLOGICAL PHENOMENA, FLOODS OR OTHER CATASTROPHES; NATIONAL EMERGENCIES,INSURRECTIONS, RIOTS, TERRORIST’S ACTS OR WARS, STRIKES, LOCKOUTS, WORK STOPPAGES, OR OTHER LABORDIFFICULTIES, ACTS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO LOCAL OR FOREIGN TELEPHONE COMPANIES; AND ANY LAW, ORDER,REGULATION OR OTHER ACTION OF ANY GOVERNMENTAL ENTITY.
8.1.4. THIS SECTION CONTINUES TO APPLY AFTER THE AGREEMENT ENDS.
8.2. No Warranties. PAD TECHNOLOGIES MAKES NO EXPRESS OR IMPLIED WARRANTIES ABOUT ITS SERVICES THAT ARE NOT EXPRESSLYCONTAINED IN THIS AGREEMENT. PAD TECHNOLOGIES DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIESOF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PAD TECHNOLOGIES ALSO MAKES NO WARRANTY THATTHE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER MAY NOT RELY ON STATEMENTS OF WARRANTY ABOUT PADTECHNOLOGIES’ SERVICES; SUCH STATEMENTS ARE NOT AUTHORIZED BY PAD TECHNOLOGIES AND ARE NOT A WARRANTYBY PAD TECHNOLOGIES or its subsidiaries.
8.3. Exclusions. PAD Technologies is not liable for claims or damages from:
8.3.1. Customer’s or Customer’s Authorized Users’ fault, negligenceor failure to perform Customer’s responsibilities;
8.3.2. third party claims against Customer that arise out ofCustomer’s or Customer’s Authorized Users’ use of the Services;
8.3.3. claims for third party acts or omissions;
8.3.4. Customer or Customer’s Authorized Users’ acts or omissions;
8.3.5. the acts or omissions of any non-PAD Technologies entity furnishing equipment, services or facilities for use with Services;
8.3.6. claims from a breach in the privacy or security of communications transmitted over PAD Technologies' network;
8.3.7. claims due to fraudulent or unauthorized use of the Services provided to Customer, or unauthorized use of Customer’stelephone facilities to place calls on the PAD Technologies network; or
8.3.8. a problem with the interconnection of PAD Technologies’ Services with the services or equipment of some other party.
8.3.9. EXPORT COMPLIANCE. End User agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materialsvia the Services. End User agrees to comply with applicable local, state and federal regulationsgoverning the locality in which the Equipment and Services are used.
8.3.10. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End Usershall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by PAD Technologies or its vendors.
8.3.11. SOFTWARE COPYRIGHT. Any software used by PAD Technologies to provide the Services and any software provided to End User in conjunction withproviding the Services areprotected by copyright law and international treaty provisions. EndUser may not copy the software or any portion of it.
8.3.12. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). PAD Technologies shall not be liable for any delay in performancedirectly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties,equipment failure, late delivery by suppliersor other difficulties of PAD Technologies as may occur in spite ofPAD Technologies' best efforts.
INDEMNIFICATION. Furthermore, End User agrees to defend, indemnify and hold PAD Technologies, any and all of its subsidiaries, affiliates and its vendorsharmless from any claims or damages relating to this Agreement.
9. CUSTOMER’S LIABILITY. Customer will indemnify, defend and hold PAD Technologies harmless from all claims and demands by third parties for loss ordamages arising out of the use of Services by Customer or Customer’s Authorized User, including but not limited to: claims of libel, slander, or the infringement ofcopyright; claims for the unauthorized use of any trademark, trade name, or service mark arising from the material transmitted over the Services; claims ofinfringement of patents arising from, combining with, or using in connection with, the Services, any apparatus and or systems furnished by Customer orCustomer’s Authorized User; and all other claims arising out of any act or omission of Customer or Customer’s Authorized User in connection with the Services.
10. INTERNATIONAL SERVICES
10.1. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the end-to-endinternational service or facilities they provide, certain limitations or restrictions that may limit Customer’s ability or that of Customer’s Authorized Users to usethe PAD Technologies Services. Customer or Customer’s Authorized User must conform to any limitations orrestrictions imposed by the foreign carriers or agencies.
10.2. Foreign Carrier Acts or Omissions.
10.2.1. When other U.S. or foreign carriers and ForeignTelecommunications Administrations use facilities to establish connect ions to points not reached by PAD Technologies’ facilities,PAD Technologies is not liable for acts or omissions of other carriers or Foreign Telecommunications Administrations.
10.2.2. International calls are priced on the basis of the countryand city codes dialed by Customer. When the facilities of other U.S. or foreign carriers are used in establishing connections to points not reached by PADTechnologies' facilities, PAD Technologies is not liable for refunds or damages if those calls do not terminate in the country, city, or area codes normallyassociated with the called number.
11. PRIVACY
11.1. Information Obtained Online. PAD Technologies’ privacy policy governing information about Customer that PAD Technologies obtains over the Internet isat www.padtechnologies.com.
11.2. Customer Proprietary Network Information. As PAD Technologies provides Services to Customer, PAD Technologies develops information about thequantity, technical configuration,type, destination, amount of Services Customer uses, and other information found on Customer’s bill ("Customer Information"). In order to serve Customer in themost effective and efficient manner, PAD Technologies may use Customer’s CustomerInformation for purposes of determining and offering other PAD Technologies products and services that may interest Customer. However, if Customer so desire,PAD Technologies will not useCustomer’s Customer Information to offer Customer products and services that is unrelated to the Services Customer currently receive from PAD Technologies. IfCustomer would prefer that PAD Technologies not use Customer’s Customer Information for this purpose, please call the number on Customer’s invoice.
12. MISCELLANEOUS
12.1. No Waiver of Rights. If either party fails to enforce any right or remedy under this Agreement, that does not waive the right or remedy for any other breachor failure.
12.2. No Third Party Beneficiaries. The parties do not extend this Agreement’s benefits to any third party, unless expressly stated in this Agreement.
12.3. Governing Law. This Agreement and all claims relating to therelationship between the parties are governed by federal law and the laws of the State of Texas, but excluding Texas’s choice of law principles.
12.4. Severability. If any provision is held to be illegal, or unenforceable, this Agreement’s unaffected provisions will remain in effect.
12.5. Headings of No Force or Effect. Headings in this Agreementare for reference only and have no effect on any provision’s meaning.
12.6. Assignment. Customer may not assign this Agreement without the express written consent of PAD Technologies, whichmay not be unreasonably withheld. PAD Technologies may assign this Agreement.
12.7. Notices. Any notices that PAD Technologies must giveCustomer under this Agreement will be made in at least one of the following ways: postcard or letter mailed to the most recentaddress on Customer’s account, bill message, bill insert, e-mail to an address provided by Customer, recorded announcement, posting on the PAD Technologieswebsite, call to Customer’s billedtelephone number and speaking to Customer or leaving a message, or newspaper ad.
12.8. PAD Technologies’ Trademarks. Customer may not use thePAD Technologies or any and all of its subsidiaries’ name or logo, the name or trademark of the Services, or the PAD Technologiesaccess code in any promotional materials, web site pages, or similar media without PAD Technologies’ or any and all of its subsidiaries’ prior written approval.
12.9. Entire Agreement. These Terms and Conditions and applicable Rate Schedules, as may be modified by PAD Technologies from time to time,constitute the entire agreementbetween Customer and PAD Technologies. No prior agreements, understanding, statements, proposals or representation, either oral or written, apply. No writtenor oral statement, advertisement or service description not expressly contained in this Agreement canbe used to alter or supplement its terms. Customer may not rely on any representations or statements not contained in this Agreement.
12.10. DEFINITIONS:
12.10.1. Authorized User - a person, firm, or corporation, who is authorized by Customer to use Customer’s Services.
12.10.2. Automatic Number Identification – the calling telephonenumber identification that will be forwarded to PAD Technologies’ network by the Local Exchange Company (LEC) as a call is placed.
12.10.3. Customer, Subscriber, or “you” –
12.10.3.1. The person or other entity, having a communications requirement of its own and responsible for both the payment of charges and compliance with theAgreement; or
12.10.3.2. Any person with actual or apparent authority torepresent that person or to use the Services.
12.10.4. Local Telephone Company or Local Exchange Carrier(LEC) - a company that furnishes local exchange service.
12.10.5. Location - a physical premise to or from which PAD Technologies provides Service. In instances where Customer obtains Services fromPAD Technologies at multiple Locations, each of these Locations will be designated as either "Associated" or "Non-Associated."
12.10.6. Minimum Usage Charge (MUC) – a minimum charge forServices for which Customer is invoiced and that Customer must pay each month. Customer’s usage of the Services is applied against the MUC. If the chargesfor Customer’s monthly usage are less than the MUC, Customer must pay the entire amount of the MUC. To the extent charges for Customer’s usage exceedthe MUC, Customer will be required to pay the additional charges according to Customer’s calling plan.
12.10.7. Monthly Recurring Charge (MRC) – a charge for Services for which Customer is invoiced and that Customer must pay eachmonth.
12.10.8. Pay-Per-Call Services - those telecommunications services in which the called party assesses the calling party a charge that isnot dependent on the existence of a pre-subscription relationship and for which the caller pays a per-call or per-time-interval charge that is greater than, or inaddition to, the charge for transmission ofthe call.
12.10.9. Premises - a building or buildings on contiguous property(except railroad rights-of-way, etc.).
12.10.10. Public/Semi-Public Payphone - a coin operated or coinless telephone that is generally available for public use in theU.S. Mainland, Hawaii, Puerto Rico and the U.S. Virgin Islands. These telephones can be owned by local telephone companies, inter- exchange carriers and/orprivate Customers. Calls from coinlesstelephones must use an alternate billing method such as calling card, commercial credit card, third number or collect.
12.10.11. Services - the state-to-state and international telecommunications service offerings provided by PADTechnologies and purchased by Customer.
12.10.12. State -to-State Calling - Dial-1 and Operator state-to- state services are available to Customers in the U.S. Mainland, Hawaii, Puerto Rico and theU.S. Virgin Islands. State-to-state callsmay terminate to the U.S. Mainland, Alaska, Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam and CNMI, unless otherwise specified in the product.
12.10.13. Tariffs – All Tariffs applicable to the Services being offered.These Tariffs are on file and available for public view at the appropriate Regulatory Commission.