VoIP Terms of Service

Last Updated: September 30, 2024

The VoIP Service Terms (“VoIP Terms” or “ToS”) govern your use of TBC Communications’ (“TBCC,” we/us/our) VoIP service (“VoIP Service”).  To use our voice services (the “VoIP Service” or “Service”), you (sometimes referred to as “Subscriber”) and your end users of the Service must at all times agree to and abide by these VoIP Terms, the 911 Disclosure and Terms posted at [https://telclobillcenter.com/tos] (the “911 Disclosure”), and other TBCC policies posted at [https://telclobillcenter.com/disclosures] from time to time.  BY ACCEPTING OR USING THE VOIP SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THESE VOIP TERMS AND THE REQUIREMENTS, RESTRICTIONS AND LIMITATIONS ON 911 SERVICES CONTAINED HEREIN AND IN THE 911 DISCLOSURE.

 1. SERVICES PROVIDED; ADDITIONAL TERMS; CHANGES

 a.    Services Provided.  TBCC will provide the Subscriber with the Voice Service via [ordering method] or via a TBCC agent or channel partner.  Subscriber’s service order and any future orders (collectively referred to as “Service Order”) shall automatically incorporate these ToS effective as of the date of such Service Order.

 b.    Changes to the Service.  TBCC may at its sole discretion modify the aspects, features, or functionality of the Service without prior notice. 

 2. TERM

 a.    Except as otherwise stated in a Service Order, the Service is sold with an initial term of one (1) year (“Initial Term”) which shall automatically renew each year after the Initial Term, for one (1) year (“Renewal Terms”) at each anniversary thereof unless automatically terminated by either Party by written notice given not less than thirty (30) days prior to the expiration of the Initial or then-current Renewal Term.  Except as otherwise stated in a Service Order, the Service and Initial Term commences upon the earlier of Subscriber’s acceptance of these VoIP Terms or Subscriber’s first use of the VoIP Service.

 3. USE OF THE SERVICE

 a.    System Requirements.  In order to use the Service, Subscriber must, at Subscriber’s own expense, provide and utilize one or more industry standard, Service compatible devices, high speed broadband access, and certain software, and may be required to obtain updates or upgrades to the foregoing from time to time.  Subscriber’s ability to use the Service may be affected by the performance of these items.  Subscriber acknowledges and agrees that system requirements for the Service may change from time to time and that adherence to the system requirements is Subscriber’s responsibility.  Subscriber is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and for regularly backing up its data and files in accordance with good computing practices. 

 b.    Registration.  Subscriber is required to register prior to using the Service.  Subscriber agrees that any registration information shall be accurate, correct, and up to date, and Subscriber agrees to maintain and promptly update its registration information, including but not limited to the physical location of each user.  Subscriber and/or its representative must be of legal age to enter into a binding contract in order to register for the Service. 

 c.     Privacy.  TBCC’s privacy policy is located at [website/ other location of privacy policy].  Subscriber agrees to the use of Subscriber’s data in accordance with TBCC’s privacy policy.  Without limiting the generality of the foregoing, TBCC may provide its third party providers and referral companies who provide TBCC services related to the Service with certain Subscriber data such as Subscriber name, address, and number of subscribers, however, under no circumstances will such information include any personally identifiable information that Subscriber has not agreed to be provided to such third parties.

 d.    Subscriber shall be responsible for maintaining the security of any required user names and passwords (including both for an “Account Administrator” and users), and shall not disclose them to any third party.  Subscriber shall be solely responsible to TBCC for all activities that occur under Subscriber’s account or subscription, including any unauthorized use.  If you have reason to believe that the VoIP Service is no longer secure (for example, any unauthorized, fraudulent, or prohibited use of the VoIP Service), you agree to immediately notify TBCC. You may be liable for the losses incurred by TBCC or others due to any unauthorized use of the VoIP Service:

  • in the event that TBCC discovers or has reason to believe suspicious or fraudulent calls are being made,

  • calling patterns or volumes materially outside your regular usage patterns,

  • other usage that is unauthorized or prohibited,

 and you consent to TBCC taking actions it deems reasonably necessary (including temporary suspension of the affected service or blocking or limiting access to particular calling numbers or geographic areas), without prior notice, to prevent such calls from taking place, if such immediate suspension is required to protect TBCC, its vendors, its other Subscribers, the Service or other third parties; otherwise TBCC may provide reasonable notice prior to suspension. You acknowledge and agree that TBCC is under no obligation to do so, but:

  • may upon request investigate the authenticity of calls charged to your account,

  • may take action to prevent such calls from being made,

  • is not liable for any fraudulent calls processed by TBCC and billed to your account unless such calls are the result of TBCC’s gross negligence or willful misconduct.

 4. ACCEPTABLE USE POLICIES.

 a.    Scope of Use/ Fair Usage.  Subscriber shall use the Service only as permitted in these Terms and in accordance with applicable laws and regulations, including but not limited to laws regarding the export of data or software.  Subscriber shall use the Service only for its internal business or personal use.  Subscriber’s use of the Service may be subject to certain restrictions and limits, including without limitation as to conference ports, number of users per subscription, and storage, which if applicable will be communicated by TBCC.  If TBCC determines that Subscriber has violated or is in violation of this provision, TBCC will so notify Subscriber and may, in its sole discretion, suspend or terminate Subscriber’s Service.  In the event of such termination Subscriber shall remain bound by its payment obligations for the remainder of the then current (Initial or Renewal) Term of the Agreement.  Subscriber may not transfer its Service subscription to any other company or entity.

 b.    Prohibited Uses.  Subscriber agrees not to:

  • use the Service in a manner that is actually or potentially libelous, threatening, harmful, harassing, indecent, obscene, in violation of the intellectual property rights of any party, or is otherwise unlawful under any applicable law or regulation. 

  • engage in any activity that interferes with or disrupts the Service or associated servers, networks, or software; prevents or restricts other customers from using the Service; or damages any TBCC or third party property. 

  • reproduce, duplicate, copy, sell, trade, or resell the Service provided under Subscriber’s account(s). 

  • not to use the Service for autodialing or predictive dialing; continuous or extensive call forwarding; constant dialing; iterative dialing; fax broadcast; fax blasting; junk faxing; fax spamming; transmitting broadcasts or recorded material; sending unsolicited messages or advertisements; telemarketing; sending bulk and/ or junk email, voicemail, or faxes; call center operations or other bulk call-in lines; taking any action to attempt to mislead others as to the identity of the sender or the origin of any communication; or any other activity outside the scope of reasonable internal business usage. 

  • re-classify or re-originate traffic or take any other action to intentionally make traffic appear as if it:  (i) is anything other than the type of traffic delivered to such called party (including but not limited to making TDM originated traffic appear to be IP originated) or (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated.

  • modify, alter, or delete in any manner calling party number information, originating point codes, or any other signaling information or call detail in connection with the transport and termination of traffic to the called party. 

  • access or attempt to access the Service by any means other than the interface provided by TBCC, including but not limited to any automated means such as the use of scripts or web crawlers. 

  • use any trademark, service mark, trade name, or logo of any company or organization in conjunction with the Service in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo. 

 

c. TBCC’s Remedies for Prohibited Use.  TBCC may take any lawful action it deems appropriate with respect to prohibited use of the Service or other use of the Service that it deems to be inappropriate, in violation of this Agreement, or potentially disruptive to the Service or TBCC’s network, TBCC’s rights and interests, or the rights of other customers.  TBCC’s remedies for Subscriber’s prohibited use of the Service, includes but is not limited to issuing warnings; terminating Subscriber’s Service, subscription, accounts, or users; disabling access to or suspending the Service, subscription, or accounts; or increasing the monthly rates charged Subscriber for the period of Subscriber’s prohibited use and the remainder of the Agreement’s term.  TBCC may take such action without notice or liability to Subscriber or any other party, although TBCC shall have no obligation to take any such action.

 

5. STIR/SHAKEN. 

a. Pursuant to the Federal Communications Commission’s rules regarding the STIR/SHAKEN standards, TBCC is required to respond to traceback requests from the Industry Traceback Group. Accordingly, you agree to accept and comply with traceback actions implemented by TBCC and to cooperate with TBCC in responding to any traceback requests.

 

6. Support. 

a. TBCC will provide Subscriber with technical consultation support for the term of the Service.  If Subscriber is obtaining the VoIP Service in connection with one or more services provided by a TBCC agent or channel partner, Subscriber shall first contact such agent or channel partner, who will resolve the issue or escalate to TBCC as appropriate.

 

7. Customer Proprietary Network Information. 

 a. In the normal course of providing services to its users and customers, TBCC collects and maintains certain customer proprietary network information (“CPNI”) typical to the industry.  CPNI includes the types of telecommunications and interconnected VoIP services Subscriber currently purchases or subscribes to, how Subscriber uses those services (for example, Subscriber’s calling records), and billing information related to those services.  Subscriber’s TBCC telephone number, name, and address do not constitute CPNI.  TBCC does not sell, trade, or otherwise share Subscriber’s CPNI with anyone outside of TBCC and those parties authorized to represent TBCC to offer TBCC’s services or to perform functions on TBCC’s behalf related to TBCC’s services, except as the law may require or Subscriber may authorize.  Federal law generally permits TBCC to use CPNI in its provision of the telecommunications and interconnected VoIP services Subscriber purchases or subscribes to, including billing and collections for those services.  TBCC may also use or disclose Subscriber CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect TBCC’s rights or property, to protect against the unlawful use of TBCC services, or to protect other users.

 b. Subscriber may elect to prohibit TBCC’s use of Subscriber’s CPNI to market services other than services of the same type that Subscriber already purchases from TBCC by providing TBCC with Subscriber’s “opt-out” notice within thirty (30) calendar days of Subscriber’s Service commencement via [method of opting out].  If Subscriber fails to do so within such timeframe, Subscriber will be deemed to have given TBCC consent to use Subscriber’s CPNI to market services other than services of the same type that Subscriber already purchases from TBCC.  Restricting TBCC’s use of Subscriber CPNI will not affect TBCC’s provision of any service, nor will it necessarily eliminate all types of TBCC marketing. 

 

8. SUBSCRIBER’S CONTENT

 a.    Subscriber is solely responsible for the content of all information and communications, whether visual, written, audible, or of other nature, sent, displayed, uploaded, posted, published, or submitted by Subscriber while utilizing the Service (“Subscriber’s Content”) and for the consequences of doing so, including any loss or damage to TBCC or any third parties.  TBCC has no responsibility to Subscriber or any third party for Subscriber’s Content.

 b.    TBCC reserves the right to, but shall have no obligation to, pre-screen, refuse, flag, filter, or remove any of Subscriber’s Content from the Service at TBCC’s discretion without notice or liability to Subscriber or any other party.

 c.     Subscriber shall retain copyright and any other intellectual property rights Subscriber holds in Subscriber’s Content.  Subscriber shall remain solely responsible for protecting and enforcing such rights where applicable.

 d.    Subscriber hereby grants to TBCC a non-exclusive, world-wide, royalty free, sub-licensable, transferable, perpetual, irrevocable license to use, modify, adapt, translate, publish, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute Subscriber’s Content solely for the purpose of providing and distributing the transmission of such Subscriber Content, as is necessary to the successful provision of the Service to Subscriber.  Subscriber represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant such license and permit such use.

 e.    TBCC will endeavor to store Subscriber’s voicemail, sent or received call logs, and/ or instant messages as part of the Service, however TBCC is not obligated to do so and TBCC has no responsibility or liability for the deletion or failure to store any of the foregoing.

 

9. OTHER USERS’ CONTENT

 a. TBCC does not control and shall have no liability or responsibility for the 1) conduct or 2) content of any information and communications, whether visual, written, audible, or of other nature, sent, displayed, uploaded, posted, published, or submitted by other users via the Service, including but by no means limited to advertisements or sponsored content (item (2) collectively referred to as “Other Users’ Content”). 

b. Other Users’ Content may be protected by copyright and other intellectual property rights of such other users or other persons.  Subscriber shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon Other Users’ Content unless specifically agreed to by the owners of such Other Users’ Content in a separate written agreement with Subscriber.

 

10. CHARGES AND PAYMENT

 a.    Charges.  Except as otherwise set forth in a Service Order, TBCC will charge Subscriber’s credit card, or such other payment mechanism as may be approved by TBCC, for the fees for the Service, including the Service per-user monthly fees and any other fees or charges associated with Subscriber’s account.  TBCC shall bill on a monthly basis beginning on the date Service commences with payment due on the same date of the following months of the Agreement’s term.  TBCC will bill fees or charges monthly in arrears unless otherwise agreed or specified in writing by TBCC.  If provided in the Service Order or if Service is ordered through a TBCC agent or channel partner, payment may be made directly to such agent or channel partner, as set forth is the Service Order or other documentation provided by the agent or channel partner.

 b.    TBCC may suspend performance of the Services for which payment is overdue until the overdue amount is paid in full.  Overdue payments will be subject to a late payment charge of the lesser of one and one-half percent (1.5%) per month, or the maximum rate allowed by applicable law.  Subscriber will reimburse TBCC for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.  Except as otherwise provided in a Service Order, Subscriber must dispute any charges for the Services in writing within thirty (30) days after the date of the occurrence that forms the basis for the dispute; otherwise Subscriber waives any dispute or further recourse with respect to the applicable charges.  TBCC reserves the right to require credit approval prior to providing TBCC Services to Subscriber.

 c.     Taxes.  Unless Subscriber provides TBCC with a current tax exemption certificate, Subscriber is solely responsible for paying all legally required taxes, including without limitation any state or local sales, excise, and/or other taxes and fees which may be levied upon the Service, except for any income tax assessed upon TBCC.

d.    Regulatory Fees.  TBCC may charge Subscriber for, and Subscriber shall pay in accordance with the invoice(s), fees, surcharges or contributions associated with various regulatory programs applicable to the Service, including without limitation: Federal and State Universal Service Fees; 911 Fees; and fees to offset the costs of TBCC’s compliance with various regulatory programs or requirements.  Subscriber agrees to pay these and any other fees that may be levied on the Services which are chargeable to customers by any governmental authority. 

 11. MAINTENANCE AND MODIFICATIONS TO SERVICE. 

a. TBCC may at any time and without liability modify, expand, improve, maintain, or repair the TBCC network even if such activity might result in temporary suspension(s) of the operation of the Service.  TBCC will use commercially reasonable efforts to minimize any disruption to the Service to Subscriber and shall use its best efforts to give Subscriber commercially reasonable notice of a maintenance period prior to the disruption by telephone (real-time or voicemail), facsimile, or e-mail.  Credits will not be issued with respect to such Service interruptions if TBCC has used commercially reasonable efforts to so notify Subscriber in accordance with this paragraph.

 12. TBCC’S IP RIGHTS

a.    TBCC’s IP.  TBCC reserves all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, any computer programs (in object or source code format or any other form), know-how, inventions, processes, data bases, documentation, training materials and any other intellectual property and any tangible embodiments of it (collectively, “Intellectual Property”) that TBCC (i) owned prior to providing the Services under the Agreement, (ii) any Intellectual Property that TBCC develops, creates, or otherwise acquires independently of this Agreement, and (iii) any derivative works or Intellectual Property that TBCC develops, creates, or otherwise acquires while performing the Services under the Agreement.

b.    TBCC and/or its licensors own all right, title, and interest in and to the Service, associated software, and the content of all information and communications, whether visual, written, audible, or of another nature presented by or on behalf of TBCC as part of the Service (“TBCC’s Content”).  Subscriber shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon TBCC’s Content.

 c.     Nothing in this Agreement grants Subscriber any right to use any of TBCC’s trade names, trademarks, service marks, logos, domain names, trade dress, or other distinctive brand features. 

d.    Subscriber shall not remove, obscure, or alter any proprietary rights notices, such as copyright or trademark notices, attached to or contained within TBCC’s Content, the Service, or any associated software or servers provided by TBCC.

 

13. 911/E911.

 a.    The 911 Disclosure, as amended or updated from time to time, is a material part of these VoIP Terms, and is incorporated herein as if fully set forth herein.  Subscriber acknowledges, understands and agrees that 911 services available over the VoIP Service are different from the 911 services available through traditional telephone services.  Subscriber represents, warrants and covenants that it has read, understood and agrees to the terms of the 911 Disclosure.

 14. DID NUMBERS

 a.    When supply is sufficient, TBCC may make available to Subscriber a list of DID/ telephone numbers from which Subscriber may choose their DID/ telephone numbers.  Subscriber will not be the owner of any DID/ telephone number assigned to Subscriber by TBCC, and Subscriber will not transfer or attempt to transfer its number(s) to anyone else (except as provided below with respect to Porting Out).  TBCC reserves the right to change, cancel, withdraw, or move such numbers at its sole discretion immediately upon notice.  Subscriber will surrender all rights to the DID/ telephone numbers upon termination of Subscriber’s Service if they have not been ported out in accordance with Section 14(b) below prior to such termination, and the numbers assigned to Subscriber may be reassigned upon termination of Subscriber’s Service.  TBCC will not be liable for any direct or indirect damages or incidental costs arising out of such reassignment.

 

15. LOCAL NUMBER PORTABILITY

 a.    Porting In.  Subscriber may elect to port an existing DID/ telephone number to TBCC (“Port-In”) for use with the Service.  In the event Subscriber elects to Port-In a number, Subscriber must first select a temporary number from the list of DID/ telephone numbers TBCC presents to Subscriber at the time Subscriber orders the Service, which will be used until the Port-In is complete.  TBCC will support all valid requests and will cooperate with Subscriber to perform any Port-In in accordance with Subscriber’s reasonable directions and TBCC’s operating procedures.  Neither TBCC nor its providers are responsible for any delay, rejection, or false processing of Port-In requests to the extent such delay, rejection, or false processing is attributable to Subscriber, Subscriber’s prior provider, or any third parties.

 b.    Porting Out.  Subscriber or a third-party provider acting as agent on behalf of Subscriber (“Requesting Party”) may request that TBCC port a number assigned to Subscriber by TBCC to a third party provider (“Port-Out”).  TBCC will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and TBCC’s standard operating procedures.  In the event of any Port-Out, Subscriber agrees that until such time as the Port-Out is complete and Subscriber terminates the Service for such DID/ telephone number, Subscriber shall remain bound by the terms of this Agreement related to that DID/ telephone number.  Once the Port-Out is complete, Subscriber must terminate the Services associated with such ported DID/ telephone number in order to stop incurring charges for such DID/ telephone number.  Subscriber recognizes and agrees that in the event of a Port-Out Subscriber shall remain responsible for paying all required monthly service fees.   

 16. 711 DIALING

 a.    The Service allows dialing 711 to reach Telecommunications Relay Services (TRS).  In the event the user’s registered location is not the same as the user’s geographic location, 711 calls may not be routed to the correct TRS center for the user’s location.

 

17. SERVICE EXCLUSIONS

 a.    The Service does not include directory listings and operator and directory assistance and does not support 976 or 900 calls.  The Service may not support 311, 411, 511, or other X11 calling (other than 911 and 711 as detailed in this Agreement) in all or certain service areas.

 

18. EXCLUSION AND DISCLAIMER OF WARRANTIES

 a.    TBCC PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION ALL SOFTWARE, WEBSITES, SERVERS, CONTENT, SUBSCRIPTIONS, AND ACCOUNTS ASSOCIATED THEREWITH, ON AN “AS IS” AND “AS AVAILABLE” BASIS.  SUBSCRIBER’S USE OF THE SERVICE IS AT SUBSCRIBER’S OWN RISK.  NEITHER TBCC NOR ITS LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARD TO THE SERVICES OR OTHERWISE RELATED TO THE AGREEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FORGOING, TBCC DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SERVICES OR THAT THE SERVICES WILL PREVENT TOLL FRAUD. 

 b.    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TBCC DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

 c.     WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER TBCC, ITS LICENSORS, NOR SUPPLIERS REPRESENT OR WARRANT THAT I) (I) THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR PROVIDE ANY SPECIFIC RESULTS, (II) SUBSCRIBER’S USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS OR ERROR FREE, (III)  INFORMATION OR CONTENT PROVIDED TO SUBSCRIBER THROUGH THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THE SERVICE WILL HAVE ANY PARTICULAR UP-TIME, QUALITY OF SERVICE, OR QUALITY OF VOICE COMMUNICATIONS. 

 d.    WITHOUT LIMITING THE GENERALITY OF THE PRECEDING PROVISIONS, NEITHER TBCC, ITS LICENSORS, NOR SUPPLIERS SHALL HAVE ANY RESPONSIBILITY TO SUBSCRIBER FOR DAMAGE RESULTING FROM THE USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGE TO ANY DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOADING, OTHERWISE ACCESSING, OR USING ANY CONTENT, MATERIAL, OR DATA THROUGH THE SERVICE.  DOWNLOADING, OTHERWISE ACCESSING, AND USING SUCH CONTENT, MATERIAL, OR DATA IS AT SUBSCRIBER’S OWN RISK.

 e.    TBCC DOES NOT HAVE ANY RESPONSIBILITY FOR RETAINING ANY USER INFORMATION OR CONTENT OR COMMUNICATIONS BETWEEN USERS.

 

19. CONFIDENTIAL INFORMATION

 a.    Confidential Information shall be interpreted to mean that all TBCC business and/or technical information, pricing, discounts and other information or data, whether in tangible or other form if marked or otherwise expressly identified in writing as confidential shall be considered privileged and not for release to others.  Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within thirty (30) days after disclosure. 

 b.    Confidential Information excludes information that:  (i) is publicly available other than by an act or omission of Subscriber; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination or disclosure; (iii) was known by Subscriber prior to its receipt as “Confidential Information” and was not received from a third party in breach of that third party’s confidentiality obligations; (iv) was independently developed by Subscriber without use of TBCC’s Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided Subscriber makes prompt written notification to TBCC of the pending disclosure so that TBCC may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, Subscriber will provide reasonable assistance to TBCC should TBCC attempt to obtain a protective order. 

 c.     Subscriber will protect such Confidential Information received from TBCC with no less care than the care it uses to protect its own Confidential Information, but in no event, with no less than a reasonable degree of care.  Subscriber will not use or disclose TBCC’s Confidential Information except as permitted in this Section or for the express purpose of performing obligations under the Agreement.  Subscriber’s confidentiality obligations will survive the termination of the Agreement.  Upon termination of Subscriber’s Service, Subscriber will cease all use of TBCC’s Confidential Information and will promptly and in a manner of transmittal reasonably expected to protect the confidentiality of such information, return or, at TBCC’s request, and in a manner of destruction reasonably expected to protect the confidentiality of such information, destroy  all Confidential Information, including all copies, in whatever form in Subscriber’s possession or under its control, including such Confidential Information stored on any electronic medium or device of any sort.  Upon request, Subscriber will certify in writing its compliance with this Section. 

 

20. LIMITATION OF LIABILITY

 a. IN NO EVENT WILL TBCC OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE.  TBCC’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL TBCC CHARGES MADE TO SUBSCRIBER FOR THE TBCC SERVICE PAID OR PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.  THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE.  THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF TBCC’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS AND SUPPLIERS.

 

21. INDEMNIFICATION

 a. Subscriber agrees to indemnify, defend, and hold harmless TBCC, its affiliates, officers, directors, employees, consultants, agents, licensors, suppliers, and resellers from any and all third party claims, liability, damages, losses, expenses, and/ or costs (including but not limited to attorney’s fees and cost of suit) arising from or related to (i) Subscriber’s use of the Service, (ii) violation of these VoIP Terms (including but not limited to fraudulent or illegal use of the Service), (iii) any negligent acts or omissions or willful misconduct of Subscriber, or (iv) infringement or violation of any intellectual property or other right of any person or entity in connection with this Agreement.

 

22. TERMINATION

a. Termination for Cause.  TBCC may terminate this Agreement and the Service associated herewith without notice and immediately upon Subscriber’s failure to comply with any provision of this Agreement. 

 b. Effect of Termination/ Expiration of Subscription.  In the event of termination of Subscriber’s Service for cause, for any reason, or upon Subscriber providing the required notice of termination of Subscriber’s TBCC subscription, Subscriber shall immediately cease use of the Service and permanently destroy all copies of any software provided with the Service within Subscriber’s possession or control.  Such software must be end-user accessible and suited for such destruction without damaging any hardware associated therewith.  All software licenses granted in conjunction with, and all subscriptions to the Service shall terminate immediately upon the termination of this Agreement.  Upon termination, TBCC may deactivate or delete Subscriber’s account and all related information and files therein and/or bar any further access thereto, and Subscriber shall have no further access to any Subscriber-assigned DID/ telephone number (unless Port-Out of such phone number was completed prior to termination of this Agreement). 

 c. All provisions concerning confidentiality, license grant and restrictions, IP ownership, warranty disclaimers, limitation of liability, and indemnity (as well as any other terms which, by their nature, are intended to survive termination) of this Agreement will survive the expiration of Subscriber’s TBCC subscription and any termination of this Agreement.

 

23. GOVERNING LAW AND DISPUTE RESOLUTION

 a.    Governing Law.  These VoIP Terms and any claims, disputes, or controversies arising out of or relating to these VoIP Terms or the Service (“Disputes”) will be governed by the laws of the State of Delaware applicable to contracts entered into and performed in Delaware without regard to its choice of law principles, excluding choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods.

b. Arbitration.  Except as provided elsewhere herein, all Disputes, including without limitation those regarding the formation, interpretation, breach or termination hereof, or any issue regarding whether a Dispute is subject to arbitration hereunder, that cannot be settled by good faith negotiation between the parties within a reasonable period of time, will be conclusively determined by a final and binding arbitration proceeding to take place in [City, State] or at such other venue mutually agreed by the parties, and may be held telephonically or via an electronic meeting platform.  Such proceeding will be conducted in English and administered by a single arbitrator pursuant to the American Arbitration Association’s Commercial Arbitration Rules and Procedures then in effect.  The arbitrator will not award punitive or exemplary damages, and will not have the authority to limit, expand or otherwise modify the terms of the Agreement.  The ruling by the arbitrator may be entered in any court having jurisdiction over the parties or any of their assets.  The parties will evenly split the cost of the arbitrator’s fees, but each party will bear their own attorneys' fees and other costs associated with the arbitration.  The parties agree that this arbitration provision may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order.  The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of arbitration in confidence.

 c. Injunctive Relief.  Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions, from any court of competent jurisdiction in order to protect its rights pending arbitration.

 d. Time Limit.  Actions on Disputes between the parties must be brought in accordance with this Section within one (1) year after the cause of action arises.

 

24. MISCELLANEOUS

 a.    Compliance.  The parties will observe all applicable laws and regulations, including export and re-export laws and regulations, when using the Service.

b.    Assignment & Subcontractors.  TBCC may assign the Agreement to any of its affiliated entities or to any entity to which TBCC may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with its performance under the Agreement.  Any other assignment of the Agreement or any rights or obligations under the Agreement without the express written consent of the other party will be invalid.  TBCC may partner with others or subcontract any or all of its obligations under the Agreement, but will retain its responsibility to Subscriber for the timely performance of the work necessary to the provision of Service properly paid for by Subscriber.

c.     Force Majeure.  Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials, systems, subsystems, components, underlying services or transportation facilities (“Force Majeure”).

d.    Notices.  Any notice required or permitted under this Agreement shall be deemed properly made when delivered by email, facsimile, messenger, overnight courier, or mailed via Certified or Registered Mail (Return Receipt Requested) if to Subscriber:  to the information TBCC has on file; and if to TBCC: to the agent or channel partner from whom Subscriber ordered the Service, or to [address].  Notices will be considered effective when sent or posted.

 e.    Entire Agreement.  These VoIP Terms and the Service Order, including any Attachments and the policies referenced herein, constitute the entire understanding of the parties with respect to the subject matter hereof and will supersede all previous and contemporaneous communications, representations or understandings, oral and/or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties.

 f.      Severability. If any provision of these VoIP Terms is determined to be unenforceable or invalid by court decision, the ToS will not be rendered unenforceable or invalid as a whole, and the original unenforceable provision will be changed only minimally as required for it to be enforceable and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. 

 g.    No Waiver.  The failure of either party to assert any of its rights under these VoIP Terms, including, but not limited to, the right to terminate the Service in the event of breach or default by the other party, will not be deemed to constitute a continuing or permanent waiver by that party of its right to enforce each and every provision of the Agreement in accordance with their terms.