SIGNING UP FOR METROPARK’S UCaaS SERVICE CREATES AN AGREEMENT BETWEEN YOU AND US, CONSISTING OF THE SERVICE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER, (3) YOUR USE OF THE SERVICE DESCRIBED HEREIN. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
1. These Metropark UCaaS Service Terms and Conditions, together with any operating rules, policies, price schedules, SERVICE ORDERs or other supplemental documents expressly incorporated herein by reference or located at www.metropark.com/tc and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between Metropark Communications, Inc., an Missouri corporation (hereinafter referred to as “we,” “us” or “METROPARK”) and the party set forth in the related registration order form (hereinafter referred to as “you,” “user” or “Customer”) regarding Metropark’s Service (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “METROPARK” includes our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.
2. Definitions
1. “Device” means a Metropark-provided telephone, telephone adapter (“Adapter”), router, or other device used with the Services.
2. “Documentation” means user manuals and other documentation relating to the Services, which are available to Customer by Metropark accessible via the Internet or in the form of printed media.
3. “Services” means the products and services that are being provided to you as described in any quote or order form, including, but not limited to, Metropark’s Voice Exchange (MPVEX) services, collaboration services, and any associated software, hardware or web-based platform. “Service” shall also include any additional Services provided to you as described in any addendum or amendment.
4. “Software” means any proprietary software owned by, licensed by, or which Metropark has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
3. REVISIONS TO TERMS AND PRICING.
From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing (except during the initial term of a Minimum Commitment Contract such as a Metropark Service Agreement) for the Service. Notice of revisions to the Agreement or pricing shall be provided in electronic notification to the billing email address on file and shall include the pricing revisions and the effective dates. If you do not agree to the revision(s), you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions.
4. CUSTOMER REPRESENTATIONS.
You represent and warrant that your primary residence or business address is in the United States. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that Metropark relies on the information you supply and that providing false or incorrect information may result in Service provisioning and delivery delays, the suspension or termination of your Service and the inability of a 911- dialed call to be correctly routed to emergency service personnel, as further explained below. You agree to promptly notify Metropark whenever your personal or billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and payment method, including credit card number and expiration date, if applicable). You agree to be financially responsible for your use of the Service as well as for use of your account by others.
5. USE OF SERVICE AND DEVICE.
1. Business Plans. Service is provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, non-business and non-professional purpose. This also means that you are not to resell or transfer the Service to any other person for any purpose or make any charge for the use of the Service, without express written permission from Metropark in advance. Metropark reserves the right to immediately terminate, change the calling plan or modify the Service if Metropark determines, in its sole discretion, that you are using the Service for non-business or non-commercial use.
2. Restrictions. You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services.
3. User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that Metropark will be sending you information, including your Password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by Metropark to authenticate customer calls and should not be shared.
4. Use of Service and Registered Device by Customers Outside the United States. While Metropark encourages use of the Service within the United States to other countries, Metropark does not presently offer or support the Service to customers located in any countries other than the United States. Metropark’s Services are only for use by persons or entities whose primary residence or business address is in the United States. Metropark’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high- speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, Metropark does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove the Registered Device to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. You also agree to indemnify us for any claims, damages or expenses resulting from your use of the Services outside of the United States. Metropark reserves the right to disconnect Services immediately if Metropark determines, in its sole and absolute discretion, that you have used the Service or the Registered Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or Devices by any person making use of the Service or Devices provided to you.
5. Account Ownership. The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with Metropark . If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. Metropark shall not adjudicate ownership-related disputes, or any other internal business dispute. If Metropark is unable to determine the valid owner of the account, Metropark reserves the right to suspend or terminate the account and Services.
6. Metropark’s MPVEX UCaaS Right To Use (RTU) user license(s), calling, fax and text messaging plans are defined by Service order.
7. Metropark offers additional accessory Services and those Services are listed on the Service Order.
6. LOCAL NUMBER PORTABILITY.
In the event you are transferring an existing phone number that currently is subscribed to another carrier, the following terms and conditions apply:
1. Authorization. You hereby authorize Metropark to process your order for the Service and to notify your local service provider of your decision to switch your local services to Metropark and to transfer your telephone number, and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by Metropark or the third-party services provider will delay the porting of the number to Metropark. You acknowledge that the porting of your numbers is dependent upon the cooperation of you and third parties not under the control of Metropark. Metropark shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
2. Activation. You agree and acknowledge that you must install and activate your Device prior to the date that the number switch becomes effective. You will be assigned a temporary telephone number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
3. Limitation. Metropark has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
4. Unauthorized Port Outs. Customer may request a “pin” not be placed on the local number(s) but to better protect against slamming or unauthorized port-outs Metropark will enable your numbers to restrict unauthorized Port Outs or Slamming. You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or your account due to acts or omissions of third parties, and it may be difficult or impossible for Metropark to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of your account; or (iii) port such numbers back into your account. Metropark has no responsibility or liability due to such port-outs.
7. SERVICE DISTINCTIONS.
You acknowledge and understand that the Service is not a telephone service, and we provide it on a best-efforts basis. Important distinctions exist between telephone service and the enhanced Service offering provided by Metropark. The Service is subject to different regulatory treatment than traditional telephone services. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service.
1. EMERGENCY SERVICES – 911 DIALING. You acknowledge and understand that Metropark 911 dialing is different than traditional 911 service. See complete 911 disclosure posted on our Web site https://www.metropark.com/mpvex-e911/. It is very important YOU submit an E911 ADDRESS VERRIFICATION FORM https://www.metropark.com/mpvex-e911-change-of-address/ to keep your service address (physical address) up to date so that emergency personnel can be dispatched to the right location in the event of an emergency. IF THE PHYSICAL LOCATION OF YOUR BUSINESS VOIP PHONE(S) IS NOT ACCURATELY RECORED, EMERGENCY SERVICES WILL NOT BE ABLE TO LOCATE YOU IF YOU ARE UNABLE TO SPEAK YOUR ADDRESS OR ARE DISCONNECTED (EVEN IN AREAS WHERE E911 SERVICE IS AVAILABLE) DURING A 911 CALL AND/OR THE CALL MAY BE MISDIRECTED TO AN INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. If your physical location cannot be determined by your service address on file, you will be routed to a national call center to confirm your location so that your call can be forwarded to the appropriate local authority. In case of an emergency call to 911, you should be prepared to provide your address and exact location inside the premises.
2. No 0+ or Operator Assisted Calling; May Not Support X11 Calling. You acknowledge and understand that the Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial- around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
3. No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
4. Incompatibility with Other Services.
1. Non-Voice Equipment Limitations. You acknowledge and understand that the Service is not compatible with all non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. By accepting this Agreement, you waive any claim you may have against Metropark for interference with or disruption of such systems due to the Service.
2. Certain Broadband, Cable Modem, and Other Services. There may also be other services with which our Service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
5. 911 Use Outside of the United States. As previously noted there are limitations with the Service’s access to 911. Metropark’s Service does not provide access to emergency services in any country outside of the United States. Metropark disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
6. Substitution and Discontinuation of Services.. Metropark may, in its sole discretion, discontinue or substitute any service, feature or functionality without your prior approval. If Metropark discontinues a service, feature or functionality, or fails to substitute a service, feature or functionality with an equivalent service, feature or functionality, then upon your written request, Metropark will reduce the fees assessed to your account by the amount that you specifically pay for any such discontinued or substituted service, feature or functionality.
8. LENGTH OF SERVICE.
1. Service Term. We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”). It is not the day you receive the Device you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Service Order.
2. Automatic Renewal. The Service will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional months or initial or renewal term extensions, unless you cancel your Service by providing Metropark with notice at least thirty (30) days before the end of the then-current service term. Each renewal term begins on the day after the last day of the previous term. Any and all fees assessed to your account during the initial term and any renewal terms will be charged to your payment method on file, which may include any payment method automatically updated by your issuing bank. If you are paying by credit card and your credit card is declined, invalid, or payment is not timely made by the issuer of your credit card, without further notice Metropark reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued for nonpayment.
3. Our right to disconnect. You understand and agree that Metropark has the right to suspend, terminate or disconnect any part of Your Service generally at any time if:
1. We determine or reasonably believe that You are violating, or violated, any applicable law;
2. We determine or reasonably believe that You materially breached this Agreement and/or the (AUP) Acceptable Use Policy.
3. We determine or reasonably believe that You used fraudulent means to pay for the Services, including use of a fraudulent credit card;
4. We determine or reasonably believe that You abused or harassed (verbally or otherwise) any Metropark employee, contractor, agent or representative;
5. We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
6. You bring any legal action or proceeding against Metropark, or participate in any class action lawsuit against Metropark;
7. A petition in bankruptcy is filed by or against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over You or Your material assets;
8. We determine that such action is necessary to protect, maintain, or improve the Services, to prevent fraud or misrepresentation, to protect Metropark, its customers or other third party Metropark affiliates, or for any other good cause.
9. It is otherwise contemplated by this Agreement.
10. You fail to make payment.
4. All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
5. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at support@METROPARK.comprior to expiration of the current service term
9. Devices
1. Ownership and Risk of Loss. You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices. Minimum Commitment Contracts for Services and Devices may include early termination fees. Returns of non-defective Devices outside of the initial 30 day money back guarantee period will not be accepted. Refer to the Cancellation policy for more information. You may have previously owned the devices (BYOD) that we refer to as Bring Your Own Device, which our services may be sent to your BYOD and you retain obvious ownership as Metropark would only be providing Services.
2. Rented Devices. For the purposes of this section “Rented Devices” means any Device leased to Customer by Metropark or Metropark agents or any other third-party with or without a separate charge or fee in connection with the Services.
3. Section 9.1 above will not apply to Rented Devices.
Unless otherwise agreed upon, Customer agrees that within thirty (30) days after the expiration of the Term of any Device Rental Agreement or termination of this Agreement, Customer will promptly return all Rented Devices to Metropark. Customer will be responsible for (i) any damage to the Rented Devices as assessed by Metropark upon receipt, (ii) the replacement cost of such Rented Devices if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs.
Customer agrees to pay the full retail cost for the repair or replacement of any Rented Device or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by Metropark in obtaining or attempting to obtain possession of any Rented Devices.
4. Promotional Devices. Devices included in a service offering at no charge may be previously used equipment. Unless otherwise provided in a Minimum Commitment Contract, Devices not returned upon cancellation of the Service will be charged to the customer. See Termination policy for details.
5. Replacement of a Defective Device. Devices purchased from Metropark will be covered by their respective factory warranties, if any, only. Metropark does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact Metropark at support@metropark.com so that Metropark may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by Metropark in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement will be sent to you in accordance with the factory warranty, if any. If an advance replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then Metropark will charge you for the second device or for the missing parts.
6. Receipt of damaged Devices. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Metropark Suppor HelpDesk immediately at support@metropark.com for return instruction.
7. Tampering with the Device. You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
8. Prohibited Devices. You are prohibited from using the Services with any devices other than Metropark-approved devices received from retailers or from us.
9. All Headset Sales Are Final. Headsets, earpieces, in-ear monitors, microphones and similar devices are not eligible for return or refund unless otherwise required by law. All purchases of these types of products are final and non-refundable.
10. FEES AND CHARGES.
1. Platform base licensing fees will be published in the associated service order. Other additional fees and charges will be listed on your monthly invoice. These fees and charges may change from time to time (except pricing will not change during the initial term of the initial contract term. New pricing will be effective the next day following posting to Metropark’s website and may be applied to renewals of existing services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, are subject to change from time to time and are applicable to ALL Customers regardless of a Minimum Commitment Contract.
2. Billing increments in Minutes.
1. Domestic & Extended Areas: 6/6
2. Canada: 30/6
3. International: 30/6
4. International Billing Variants (Ask for Updated Rate Deck): 60/60
*Voice usage rounded up to four (4) digits.
3. Taxes. Taxes Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide Metropark with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date Metropark receives such certificate.
4. Charges for Calls from Public Payphones. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones.
5. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Service Order and vary by product and plan chosen.
6. Regulatory Recovery Fee. A Regulatory Recovery Fee shall be charged monthly to offset costs incurred by Metropark in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee may apply to every phone number assigned, including toll free and virtual numbers.
7. Reinstatement Fee. Reinstating any service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.
8. Returned Check Fee. Metropark may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
11. BILLING AND PAYMENT.
1. Charges and Payment Obligation. The rates and charges for Services, including installation charges, per-minute-of-use charges, one-time non-recurring charges (NRC) or monthly-recurring charges (MRC) (collectively; “Charges”) will be set forth in Services Agreements, Service Orders or exhibits made part thereof and entered into by the Parties. Installation and set-up charges (NRC), if applicable, are due and payable upon completion and timely acceptance by Customer. Expedited Installation services can be requested and will incur an additional charge. Expediting requests are not a guarantee that service delivery will occur inside the normal delivery window specified by Provisioning Intervals. On the first billing, Metropark will charge a prorated amount for all the MRCs from the date of activation to the end of the month in addition to charging a total amount for all MRCs one month in advance. If Customer cancels any Service Order or this Agreement after the Service has been ordered but prior to Metropark notifying Customer that Service is available, Customer shall pay to Metropark all third-party supplier costs including but not limited to pre-engineering costs, installation costs and cancellation fees that are charged to Metropark due to Customer’s cancellation.
2. Invoices will be due on the date specified on the invoice (“Due Date”). Metropark will notify Customer via email that the prepared invoice is available and Customer may log on the Metropark’s Customer Billing portal at https://metropark.mpvista.com/ to view and download the invoice. It is understood that Metropark or its representative and affiliates may impose a finance charge on delinquent amounts as follows: an amount equal to the lesser of the maximum lawful rate of interest, or one and one-half percent (1 ½%) per month: such amount will accrue on any unpaid or undisputed amount that is past due. An invoice is past due if any undisputed amount is not paid on the due date. Except for amounts properly disputed by Customer, if payment in full is not received from Customer on or before the Due Date, Metropark shall have the right, after three (3) business days’ notice, to do any or all of the following: (i) suspend or terminate Service to Customer, (ii) suspend or terminate any or all Service Orders including any pending Service Orders or (iii) terminate this Agreement. If Metropark initiates legal proceedings to collect any amount due or for recovery of any Metropark equipment and Metropark substantially prevails in such proceedings, and if Metropark has included a claim for attorneys’ fees and costs in the initial legal proceeding(s) and such fees and costs are awarded, then Customer shall pay the reasonable attorneys’ fees and costs incurred by Metropark in prosecuting such proceedings and any appeals therefrom.
3. Forms of Payment. Acceptable forms of payment are: company checks, cashier’s checks and certified checks, money orders, personal checks (for non-business accounts), wire transfers and ACH credits, except where other payment form restrictions are specifically noted in a separate Services Agreement Addendum. Checks must be written and payable in U.S. dollar values. Checks drawn on foreign banks and third-party checks are not accepted unless advance arrangements have been made. Payment by cash is not acceptable. Metropark may accept, in its sole discretion, payment by credit card. METROPARK may impose a surcharge or convenience fee upon the Customer making a payment by credit card to wholly offset the amount of any discount or administrative fees charged to Metropark . When a Customer elects to make payment to Metropark by credit card and a surcharge or convenience fee is imposed, the payment of the surcharge or convenience fee shall be deemed voluntary by the Customer and shall not be refundable.
4. Billing Disputes. Customer shall submit all disputes to Metropark within thirty (30) days of the date of the invoice in question. If Customer does not submit its dispute before the end of the thirty (30) day period, then Customer waives the right to dispute the charges. Customer will submit all disputes via a written statement containing reasonably sufficient detail together with supporting documentation. Customer may withhold payment for only the disputed amounts. Both parties shall use good faith efforts to resolve the dispute within forty-five (45) days from the Due Date of the invoice in question. At the end of the forty-five (45) day period, or after Metropark makes a decision on the dispute, whichever comes first, either party may file to immediately commence arbitration in accordance with Section 25 of this Agreement. Once Metropark makes a decision on the dispute the disputed amount shall be due or credited on the next invoice.
5. Taxes, Fees and Assessments. Except to the extent Customer provides a valid exemption certificate in a form acceptable to Metropark prior to the delivery of Services, Customer shall be responsible for payment of any and all applicable local, state and federal taxes or fees and any surcharges and assessments required or permitted by applicable law. Metropark further reserves the right at any time during the Service Term to pass through and invoice to Customer any existing, new or increased fees, any applicable ancillary fees, any assessments, taxes, regulatory fees (specifically including, but not limited to, federal or state Universal Service Fund obligations), or other charges imposed on, required, or allowed to be collected by Metropark by any governmental agency or third party provider that affect Metropark’s costs in providing Services to Customer.
12. Acceptable Use Policy.
You agree to comply with the Metropark Acceptable Use Policy (“AUP”), which is posted on our Web site at Acceptable Use Policy and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective the day following posting to our Web site.
13. MANAGEMENT OF YOUR DATA AND COMPUTER.
1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your computer and telephone and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Service and to operate your computer. Metropark will only provide technical assistance with respect to your Metropark-provided equipment.
2. Monitoring of Network Performance. Metropark automatically measures and monitors network performance. We also will access and record information about your computer’s profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to Metropark’s monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service.
3. Storage of User Information. Metropark is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that Metropark has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that Metropark may establish limits as to the size of communications that Metropark transmits or stores and the duration for which Metropark stores any communications.
14. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION.
1. WARRANTIES
1. METROPARK MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. METROPARK DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. METROPARK DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST METROPARK TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
2. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF METROPARK SERVICE, INCLUDING INTERNATIONAL CALLING SERVICES.
2. LIMITATION OF LIABILITY.
1. IN NO EVENT SHALL METROPARK BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL METROPARK BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO METROPARK OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND METROPARK’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. METROPARK SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO METROPARK’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF METROPARK’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. METROPARK’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT METROPARK WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE METROPARK FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST METROPARK TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
15. INDEMNIFICATION AND WAIVER OF CLAIMS.
1. INDEMNIFICATION
1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS METROPARK AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS METROPARK FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
16. CONTENT.
You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Service or Device. You promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service and the Device.
17. MISCELLANEOUS LEGAL CONSIDERATIONS.
1. Governing Law. This Agreement and the relationship between you and Metropark shall be governed by the laws of Missouri without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Missouri and venue for any such claim shall be proper in the appropriate state or federal court located in St. Louis, Missouri.
2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. Metropark reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by Metropark under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
3. No Third Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.
4. Entire Agreement. This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of Metropark’s websites constitute the entire agreement between you and Metropark and govern your use of the Service, superseding any prior agreements between you and Metropark and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or Metropark unless they are agreed to in writing by both parties.
5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or unenforceability will not invalidate or render unenforceable any other portion of this agreement.
18. DISPUTE RESOLUTION AND BINDING ARBITRATION.
1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
2. Arbitration. Except for an action seeking a temporary restraining order or an injunction relating to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, the Parties agree to use the following alternative dispute resolution procedures as the sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach. At the written request of either Party, each Party will appoint a knowledgeable representative to meet and negotiate in good faith to resolve any dispute arising out of or relating to this Agreement. The representatives shall have the discretion to determine the location, format, frequency and duration of their negotiations, and to utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. All discussions and correspondence among the representatives shall be treated as confidential information developed for the purposes of settlement, exempt from discovery, and shall not be admissible in the arbitration described below or in any lawsuit without the agreement of the Parties. If the negotiations do not resolve the dispute within forty-five (45) days of the initial written request, the dispute shall be submitted to binding arbitration by a single arbitrator experienced in the matters at issue and selected by the Parties in accordance with the rules of the American Arbitration Association (“AAA”). The parties acknowledge that this Agreement is made pursuant to a transaction in interstate commerce, and that any arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. sec. 1, et seq. Any court with jurisdiction may enter judgment upon the award rendered by the arbitrator. The arbitration will be held in St. Louis, Missouri. The Parties agree that the arbitration shall proceed ex-parte in the event that a Party, after being duly notified refuses to participate in the arbitration. The prevailing party shall be entitled to reasonable costs and attorney’s fees.
3. Governing law. This MSA and any amendments, attachments, Services Agreements or Service Orders shall be governed by and construed in accordance with the laws of the State of Oklahoma. Customer hereby irrevocably submits to the personal jurisdiction of any state or federal court sitting in the State of Missouri, County of St. Louis, in any suit, action or proceeding arising out of or relating to this MSA. Customer hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which such party may raise now, or hereafter have, to the laying of the venue of any such suit, action or proceeding brought in such court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum.
19. PRIVACY. METROPARK
Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that Metropark cannot guarantee that voice over IP communication is completely secure. You agree that Metropark may access all features of your account and the Service to determine whether the Service is being used fraudulently and/or in violation of this Agreement, and for any other purposes. YOU AGREE THAT METROPARK SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. Metropark is committed to respecting your privacy relating to personally identifiable information. Once you choose to provide personally identifiable information, it will only be used in the context of your relationship with Metropark . Metropark will not sell, rent, or lease your personally identifiable information to others. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Metropark may disclose personally identifiable information. Please refer to our Security & Privacy Policies for additional information. https://www.metropark.com/metropark-policies-and-notices/
20. EXPORT COMPLIANCE.
You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or Device, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
21. RECORDING CONVERSATIONS.
Certain Metropark Services provide a function that allows You to record telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, You are required to obtain consent from all parties to record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. Metropark expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Metropark from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. You agree that Metropark, may at its sole discretion, record any call between Metropark and You for Metropark quality control purposes.
22. ASSIGNMENT.
Customer may not assign or transfer its rights or obligations under the Agreement without Metropark’s prior written consent which will not be unreasonably withheld. Metropark may assign the MSA and Services Agreements without Customer’s consent. Any assignment or transfer without the required consent is void. The MSA and Services Agreement will inure to the benefit of and be binding upon Customer’s permitted successors and assigns.
23. SURVIVAL.
The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
24. CALEA.
Metropark intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, you hereby agree and consent to Metropark’s right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
25. COMPENSATION PROGRAMS.
Metropark markets its services through multiple sales channels, including through marketing partnerships, referral programs and sales representative relationships with third parties. We may pay compensation to such third parties in connection with your purchase of services from Metropark.
26. FORCE MAJEURE (EVENTS BEYOND METROPARK’S CONTROL).
Metropark shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of Metropark’s best efforts.
27. SOFTWARE COPYRIGHT
Any software used by Metropark to provide the Service and any software provided to you in conjunction with providing the Service is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Service.
28. COPYRIGHT, TRADEMARK, AND INTELLECTUAL PROPERTY; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE.
Our Website content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution. All trademarks, service marks, and trade names (collectively the “Marks”) are trademarks or registered trademarks of and are proprietary to Metropark, or other respective owners that have granted Metropark the right and license to use such Marks. Your subscription to, or licensing of, any Metropark products or services does not grant any right, title, proprietary or ownership interest in any Metropark intellectual property Marks, copyrights, patents, trade secrets, or other intellectual property.
29. LICENSE BY CUSTOMER TO USE FEEDBACK
1. Customer hereby grants to Metropark a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Metropark’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the improvement, operation, or use of Customer’s Services.
2. Upon Customer’s permission, Metropark may identify you (by name and logo) as a Metropark customer on our website and on other promotional materials. You hereby grant Metropark an irrevocable, non-exclusive, royalty free license to utilize your name, trademark(s), trade name(s) and other intellectual property for this limited purpose and as otherwise agreed by you in writing.
30. CUSTOMER DATA.
Metropark does not own: (i) any data, information or material that Customer submits to Metropark in the course of using the Service; or (ii) outputs which are specifically provided to Customer during the usual course of providing the Service except to the extent that such outputs incorporate Metropark’s Intellectual Property (“Customer Data”). Customer hereby grants to Metropark a limited, non-exclusive, worldwide, royalty-free license to Customer Data for Metropark to provide Services. Customer, not Metropark, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Metropark shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination of Customer’s Service, Customer’s right to access or use Customer Data immediately ceases, and Metropark shall have no obligation to maintain or forward any Customer Data. At our sole discretion, Metropark may retain Customer Data in accordance with Metropark’s data retention policies and our Security & Privacy Policy.