These terms and conditions govern the use of OneMind Services Enterprise Services for enterprise customers. Residential and business customers should refer to their agreements incorporating the terms and conditions available at Onemind Services .com/legal/terms.
Before using the Services, please read these Onemind Services Enterprise Terms & Conditions (the “Terms”). These Terms are incorporated by reference into the Order Form executed by the company identified as the “Customer” in the Order Form (“Customer” or “you”). Pursuant to these Terms, you have the right to use the Services and OneMind Services Equipment. These Terms, the Order Form, and any other lease, activation, or commitment that you entered into in connection with obtaining the Services or the OneMind Services Equipment together form a binding and executed written agreement (the “Agreement”) between you and Onemind Services, Inc., its affiliates, and subsidiaries (“OneMind Services ” or “us”) effective as of the date of execution of the Order Form.
This Agreement contains a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. See Section 16 for more information.
This Agreement contains your consent for us to contact you via telephone or SMS message (including text messaging) using the phone numbers and email addresses you provide to us, including via automated dialing or texting systems. See Section 19 for more information.
Pursuant to FCC requirements, Onemind Services is required to advise its customers of any limitations that E911 service may have in comparison to traditional 911 service, which are set forth in Section 12 below. If you are uncomfortable with the limitations of the Onemind Services E911 service, you should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the Services. It is strongly recommended that you have an alternative means for placing emergency calls available at all times.
“Connection Date” means the date on which the Services and the Equipment are first available for use. If Customer delays the ability of Onemind Services to provide the Services, including through failure to produce required Customer Equipment or Third-Party Equipment, the Connection Date shall be deemed to be the date on which Onemind Services was able and ready to deliver the Onemind Services Equipment and Services.
“Content” includes e-mail, text, photos, videos, games, music, graphics, sound, applications, and other materials that may be accessed or sent by using certain Customer Equipment or Services.
“Customer Equipment” means all equipment and facilities necessary for the installation of the Equipment and Services at the Service Location(s), exclusive of any Onemind Services Equipment or Third-Party Equipment.
“End User” means the final user of the Services for its own internal purposes. The designation “Customer’s End Users” includes all final users of the Service provided to Customer, such as employees, invitees, contractors, agents and Participants, whether or not authorized by Customer.
“Equipment” means all physical equipment called for in the Order Form, inclusive of Onemind Services Equipment, Customer Equipment and Third-Party Equipment.
“Host” means an individual who is an identified employee, contractor, or agent of a Customer to whom the Customer assigns the right to host meetings via Onemind Services Meetings. A Host may hold only one meeting at a time. A Host subscription may not be shared or used by anyone other than the individual assigned to be a Host.
“Initial Payment” means the Non-recurring Charges set forth on the Order Form unless otherwise agreed to in writing.
“Installation Commitment Date” means the date upon which Onemind Services receives instructions that the Service Location(s) is/are available and ready for installation of service by the local loop or circuit provider, if applicable. If there are multiple Service Locations, the Installation Commitment Date means the date by which Onemind Services receives the instructions for the first of any and all Service Locations (the “First Location”).
“IP Rights” means any and all rights arising in the U.S. or any other jurisdiction throughout the world in and to (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, domain names, and other similar designations of source or origin, together with any goodwill symbolized by the foregoing, (c) copyrights and works of authorship, including computer programs, (d) trade secrets, know-how and other confidential or proprietary information, and (e) all other intellectual property, in each case whether registered or unregistered, and including all registrations and applications for such rights and renewals or extensions thereof, and all similar or equivalent rights or forms of protection in any part of the world.
“Law” means any applicable statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority.
“Monthly Recurring Charges” or “MRC” are the monthly recurring charges for the Services or any Onemind Services Equipment sold on an installment sale basis, as set forth in an Order Form.
“Non-recurring Charges” or “NRC” are unusual or one-time charges, including, but not limited to, fees for the purchase of Onemind Services Equipment; installation charges; set-up charges; Usage-Based Charges; rental fees; charges for moving, adding, changing or disconnecting services; restocking fees, shipping & handling charges, and other charges and fees.
“Onemind Services Equipment” means telecommunications equipment purchased or leased by Customer from Onemind Services as set forth in an Order Form.
“Onemind Services Meeting ID” means a unique identifier for a particular conference conducted via Onemind Services Meetings.
“Onemind Services Meetings” is a videoconferencing application available to Customers, with a single Host and multiple Participants. The application also includes (i) chat, (ii) screen sharing, (iii) video recording and (iv) meeting transcription. The availability of Onemind Services Meetings is subject to the payment of applicable taxes and fees for Services as set forth herein and the terms and limitations of this Agreement. Notwithstanding anything contrary set forth herein, Onemind Services Meetings is provided to Customers at the sole discretion of Onemind Services and Onemind Services may, in its sole discretion, at any time, with or without notice and without any obligation or liability to Customer or any other party, suspend, deactivate, terminate, apply limits to, impose restrictions or conditions on, change, modify, and/or update the Onemind Services Meetings (in whole or in part) or any log-in, user, or other element, feature, functionality, or component thereof.
“Order Form” means the order form executed by Customer and accepted by Onemind Services through which Customer purchases or leases Onemind Services Equipment and Services.
“Participant” means an individual, other than the Host, who accesses or uses Onemind Services Meetings, with or without the permission and knowledge of the Host.
“Regulatory Fees” means fees assessed by regulatory agencies and governmental entities, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees.
“Services” means the voice and advanced communications services, collaboration services, and any associated software or web-accessible portals detailed in the Order Form, and/or Onemind Services Meetings, provided in accordance with the terms of this Agreement.
“Service Level Agreement” or “SLA” has the meaning set forth in Exhibit A.
“Service Locations” means the Customer locations at which the Equipment and Services are to be used as set forth in an Order Form.
“Third-Party Equipment” means the telecommunications equipment purchased or leased by Customer from a third-party other than Onemind Services, which equipment is used in connection with Customer’s use of the Services.
“Usage-Based Charges” are charges billed to Customer and not included in Monthly Recurring Charges for calls outside the contiguous United States, premium-rate telephone numbers (e.g., directory assistance, 900 numbers, etc.), and toll-free inbound calls.
“User Guidelines” has the meaning set forth in Section 5.
Installation & Site Preparation; Licenses
Timing of Installation Commitment Date. Customer will provide to Onemind Services the Installation Commitment Date within thirty (30) days after Customer executes the Order Form, and such Installation Commitment Date will be within ninety (90) days after Customer executes the Order Form. In the event the Installation Commitment Date falls outside of these parameters, Onemind Services reserves the right to amend the pricing quoted to
Preparation of Service Location(s). Customer is responsible for ensuring that all facilities, Customer Equipment and Third-Party Equipment are available for the installation and connection of the Onemind Services Equipment and Services on the Installation Commitment Date. By way of example, but not inclusive, Customer is responsible for ensuring there are data ports and electrical outlets at the Service Locations so that the Equipment and Services can be installed and connected. Onemind Services will make reasonable efforts to advise Customer of what, if any, Customer Equipment may be necessary for the provision of Services. To the extent Customer fails to prepare a Service Location by the Installation Commitment Date, Customer may be liable for cancellation or rescheduling fees.
Equipment License. Onemind Services grants Customer a limited, revocable, non-transferrable, sublicensable only to its End Users, non-resellable license and right to use firmware or software embedded in the Onemind Services Equipment in object code form strictly in accordance with this Agreement. Onemind Services does not grant any license to use the firmware in any other manner, and you expressly agree that the Onemind Services Equipment is exclusively for use in connection with the Services described in this Agreement.
Software License. Upon activation of the Service, Onemind Services grants Customer a limited, revocable, non-transferrable, sublicensable only to its End Users, non-resalable license and right to use Onemind Services ’s software and applications strictly in accordance with this Agreement. Onemind Services does not grant any license to use its software, applications or firmware in any other manner.
Initial Payment. The Initial Payment is due five (5) business days after Customer executes the Order Form. Should Customer choose to add some or all of the Non-recurring Charges to a third-party finance lease agreement, Customer agrees to provide to Onemind Services a fully-executed copy of such lease prior to the Connection Date. Customer understands that Onemind Services will begin to requisition all Onemind Services Equipment and begin to facilitate the provision of Services immediately after Customer executes the Order Form. Therefore, Customer understands that the Initial Payment shall be non-refundable, unless Onemind Services is unable or unwilling to provide the Onemind Services Equipment and/or Services called for in the applicable Order Form.
Invoicing and Payment. Other than the Initial Payment, invoices will be sent to Customer monthly. Monthly Recurring Charges related to the provision of the Services are invoiced one month in advance (on the first day of month) and Non-recurring Charges are invoiced in arrears unless otherwise indicated in the Order Form. Payment shall be due thirty (30) days after the invoice date. Payment shall be made by wire transfer, ACH, Check, Money Order or Certified Funds. Customer may choose to receive invoices via email on the same day the invoice is created.
Exclusions and Limitations. Onemind Services will provide the prices for Non-recurring Charges upon request. Prices listed on the Order Form for Equipment do not, unless otherwise specifically noted, include shipping and handling charges, consultation, configuration, cabling/wiring, configuration or programming fees.
Failure to Make Payment. Any payment not received from the Customer by the due date (except with respect to charges then under reasonable and good faith dispute) shall constitute a default by Customer. If Customer defaults on payment and fails to cure such default within ten (10) days after due notice thereof, Onemind Services shall be entitled to suspend and/or discontinue Services without any further liability to Customer. If obligated by Law, Onemind Services will permit “911 Emergency” service (or any other service required to be provided by Law) after default. In addition, in the event of default, interest shall accrue at the lower of 1.5% or the maximum rate permitted by Law of the outstanding balance per month from the date such payment is due until the date paid. Charges for returned, stopped payment, and/or non-sufficient funds via check or direct deposit payment will be assessed a returned check fee of $100.00 per returned check or deposit. The foregoing charges shall be deemed service charges and not the only remedies for breach of this Agreement. Additional remedies for breach of this Agreement by Customer are applicable.
Taxes and Regulatory Fees. As required by Law, invoicing shall include all requisite taxes (e.g., federal telecommunication taxes, sales tax, state taxes, facilities tax, and any other applicable tax). Onemind Services will bill the Customer for such taxes on each invoice, and Customer is responsible for making payment to Onemind Services. Any contest of such taxes does not eliminate or abate the obligation to pay such taxes. Any calculation errors in assessment and/or tax rate changes requiring adjusted tax computations by Onemind Services will not relieve Customer of its responsibility to remit tax payment(s) fully and timely. Onemind Services will be responsible for any penalties or interest for any retroactive taxes based on its failure to timely remit such amounts. In addition to any taxes imposed by the government or regulatory agencies, Onemind Services reserves the right to charge other authorized Regulatory Fees. Any imposition, modification or increases in Regulatory Fees by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs shall become effective upon notice to Customer.
Term and Termination
Term of the Services. The Services are offered for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Connection Date of the First Location. Unless otherwise stated in the Order Form, following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term (each, a “Renewal Term”, and collectively with the Initial Term, the “Term”) unless and until Customer notifies Onemind Services in writing at least ninety (90) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services. If, during the Term, Customer adds any additional services, the amount of Customer’s Monthly Recurring Charges shall increase by the amount of the monthly recurring charges of such additional Services and the term for any such additional Services shall be coterminous with the Term then in effect. For the avoidance of doubt, adding new Service Locations will require a new Order Form.
Termination of the Agreement. This Agreement and any Services may be terminated:
by Onemind Services, (A) upon thirty (30) days’ notice prior to the expiration of the Term in effect that the Services will not renew; or (B) at any time and without notice if Customer (i) materially breaches the terms of this Agreement and such breach cannot be cured; (ii) violates the User Guidelines; (iii) violates the User Guidelines in Section 5; or (iv) violates an applicable Law.
by either Party, if the other party (the “Defaulting Party”) materially breaches this Agreement and such breach is capable of cure, and the Defaulting Party does not cure such breach within thirty (30) days of receiving written notice of such breach.
by either Party, if the Defaulting Party (A) becomes insolvent or admits its inability to pay its debts generally as they become due; (B) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within forty-five (45) days after filing; (C) is dissolved or liquidated or takes any corporate action for such purpose; (D) makes a general assignment for the benefit of creditors; or (E) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Early Termination. The customer acknowledges that the pricing of the Services has been established based on the complete fulfillment of the entire Term of the Services. If Customer wishes to terminate the Services under this Agreement prior to the expiration of the then-current Term and such termination is not due to Onemind Services ’s breach, all Monthly Recurring Charges and Non-recurring Charges which would otherwise be due through the end of the Term in effect at the time, including all applicable taxes and Equipment charges, shall be due and payable within thirty (30) days of the effective date of termination. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
User Guidelines and Policies
User Guidelines. Customer must, at all times, comply with the User Guidelines set forth in this Section 5 (the “User Guidelines”). If Onemind Services becomes aware of Customer’s violation of the User Guidelines or illegal use of the Services, facilities, network or Third-Party Networks accessed through the Onemind Services network, or if Onemind Services otherwise receives notice or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Onemind Services or government authorities. Any government determinations will be binding on Customer upon notice to Customer. Without limiting Onemind Services ’s right to terminate under Section 4(b), if Customer fails to cooperate with any such investigation or determination or fails to immediately rectify any violation of the User Guidelines or illegal use, Onemind Services may suspend the Service without further liability to Onemind Services. Further, Onemind Services may modify or suspend the Service as necessary to protect its networks or customers, or to comply with any Law.
Unauthorized Calling. Customer is solely responsible for selection, implementation, and maintenance of security features for protection against unauthorized calling, such as firewalls and passwords. Customer agrees to notify Onemind Services promptly if it becomes aware of any fraudulent or unauthorized use of its account. Onemind Services shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account and the payment of all charges to Customer’s account shall be and remain the sole responsibility of Customer.
Reasonable Use Policy. Customer must abide by the Reasonable Use Policy set forth in this Section 5(c) and not use the Services in a manner constituting abusive or excessive use.
Reasonable Use. Onemind Services ’s Services are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. “Normal Use” refers to the calling patterns of at least 95% of Onemind Services ’s enterprise customers on the same business calling plan. A Customer’s aggregate usage may be considered outside of Normal Use if it involves:
An excessive number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
An excessive number of inbound domestic toll-free calling patterns during a month;
Other abnormal calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy; or
A Prohibited Use, as set forth below.
Prohibited Uses. Each of the following uses of the Onemind Services Equipment or Services is prohibited (a “Prohibited Use”) and constitutes a breach of the Reasonable Use Policy:
Commercial Use. Customer shall not resell, transfer, or make a change to the Services or Onemind Services Equipment without the advance express written permission of Onemind Services. Customer shall not in any way interfere with other users, the Services, or equipment of the network, or use the Services in any way for (or as part of) any commercial service or application distributed or sold by Customer. Customer may not attempt to, in conjunction with any device, software program, or service, circumvent technological measures employed to control access to the Services.
Unique Business Use. Unless otherwise authorized by Onemind Services, Services and Onemind Services Equipment are not intended for use by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services.
Excessive Use of Unlimited Plans. Unlimited voice plans are to be used for normal voice and/or text message-related communications with aggregate usage that falls within the range of Normal Use. Use of unlimited “paperless facsimile” service must also fall within the normal range of similarly situated business customers and shall in no event exceed 500 transmitted pages sent or received per month. In addition, Customer agrees that it will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by Onemind Services.
Additional Prohibited Uses. Neither Customer nor any End User of the Services may use the Services in any of the following ways:
in any manner or for any purpose that is fraudulent, malicious, deceptive, dishonest, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, indecent, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, or otherwise in violation of any Law;
to intentionally send or transmit unsolicited or “junk” or “spam” advertisements, communications, or messages (commercial or otherwise) without consent, including without limitation through email, voicemail, SMS, facsimile, or internet facsimile.
to harvest or otherwise collect information about others, including without limitation email addresses or personally identifiable information, without their consent;
to intentionally engage in blasting or broadcasting bulk communications, advertisements, or messages (e.g., sending hundreds of messages simultaneously), including without limitation through email, voicemail, SMS, facsimile, or internet facsimile;
to perform auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls) in violation of applicable Law.
to transmit any communication that would violate any applicable Law, including but not limited to the Telephone Consumer Protection Act, the Junk Fax Prevention Act of 2005, or the rules governing the DoNotCall Registry Rules;
to intentionally transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous;
to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value, including by creating a false Caller ID identity or forged email/SMS address or header or by otherwise attempting to mislead others as to the identity of the sender or the origin of any outbound customer communication;
to infringe, misappropriate, or otherwise violate the foreign or domestic IP Rights or proprietary rights of any party, including without limitation by transmitting or storing any material that might infringe, misappropriate, or otherwise violate any such right;
to violate the right of privacy, personality, or publicity of any party, including without limitation by transmitting or storing any material that might violate any such right;
to violate any Law regarding the transmission of technical data or information or software through the Services; or
in any manner that interferes with Onemind Services ’s ability to provide products or services to other customers;
Prohibited Acts. Customer represents, warrants, covenants, and agrees that neither You nor any End User shall do any of the following during the Term:
transmit, upload, distribute in any way, or store any corrupted file or material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous or may damage the operation of the Services or another party’s computers, devices, equipment, systems, or networks;
interfere with or disrupt networks or systems connected to the Services;
sell, resell, distribute, lease, export, import, or otherwise grant or purport to grant rights to third parties with respect to the Services, and any software or hardware used in conjunction with the Services or any part thereof without Onemind Services ’s prior written consent;
display or use of any Onemind Services mark in any manner in violation of Onemind Services ’s then-current policies on its trademark and logo usage or without Onemind Services ’s express, prior written permission, to be granted or denied in Onemind Services ’s sole discretion;
display or use of any third-party mark without the prior, written consent of the third party that owns the third-party mark;
undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or any software and hardware used in conjunction with the Services, or part thereof;
defeat, disable, or circumvent any protection mechanism related to the Services;
intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data used by Onemind Services for any purpose, including without limitation by causing the any product to connect to any computer server or other device not authorized by Onemind Services or in any manner not authorized in advance in writing by Onemind Services ;
allow any service provider or other third party – with the sole exception of Onemind Services ’s authorized maintenance providers acting with Onemind Services ’s express, prior authorization – to use or execute any software commands that facilitate the maintenance or repair of any software or hardware used in conjunction with the Services;
gain access to or use (or attempt to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining);
engage in or to allow trunking or forwarding of your Onemind Services telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system; or
violate or take any action to jeopardize, limit, or interfere with Onemind Services ’s IP Rights, including without limitation their IP Rights in the software and hardware used in conjunction with the Services.
Recording Conversations or Calls. Certain features of the Services may allow Customer or End Users to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications vary from state to state, and country to country. Customer should, and should require all End Users, to consult with an attorney prior to recording any call as some states or countries may require callers or users to obtain the prior consent of all parties before the caller or User may record the call, or other communication. Users of Onemind Services Meetings will receive a notification (visual or otherwise) whenever a Host enables recording. If you or a Participant do not consent to being recorded, your only recourse is to leave the meeting. Customer represents, covenants, and warrants that it will review all applicable Laws before it uses or allows use of the Services to record any calls or other communications and will at all times comply with all applicable laws. Customer agrees to inform all its End Users that they are obligated to comply with all Laws relating to their use of the call recording feature.
In addition, Onemind Services does not provide any storage for Onemind Services Meetings. Customers must provide their own storage for any recorded Content on Onemind Services Meetings. Onemind Services disclaims any and all liability with respect to any Content or recordings thereof.
Blocking Calls. Without limiting Onemind Services ’s right to terminate under Section 4(b), Onemind Services may choose to block toll calls or charge Customer for reimbursement of charges associated with calls if such calls result in atypical termination costs and/or surcharges, including, but not limited to, calls to “free” phone conferencing services, “free” call management services, phone chat services, 900 numbers, or recorded messages (such as those promoted in connection with reality TV shows, radio contests, or celebrity-sponsored recordings).
Service Levels.Onemind Services will use commercially reasonable efforts to minimize service disruptions and outages. In the event of service disruptions or outages, Customer’s sole remedy, and Onemind Services sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement attached hereto as Exhibit A (the “Service Level Agreement”). Onemind Services may update the Service Level Agreement from time to time upon notice to Customer.
Assignment of Numbers. If Customer requests a phone number(s), Customer may have the option to choose or be assigned a phone number. This phone number may or may not be in Customer’s local calling area. If the phone number is not in Customer’s local calling area, others in Customer’s local calling area may incur charges when calling Customer and that the toll charges to call Customer from another calling area may be different than at Customer’s old landline number.
Number Porting. Onemind Services will use reasonable efforts to facilitate the transfer of Customer’s phone number(s), if requested. Number porting is subject to availability and coverage will vary from time to time. To complete the number porting process, Onemind Services depends and relies on the third parties outside of Onemind Services ’s control. Customer agrees that Onemind Services will not be liable for any change in availability, delay or failure in the processing of a number transfer, or for the unauthorized transfer of a number Customer uses with the Onemind Services Service.
Number Changes. Onemind Services may, from time to time, need to change a telephone number that is assigned to Customer. Onemind Services will not be liable for any damages should Customer need to be assigned a new phone number.
Shipment and Delivery. Unless expressly agreed to by the parties in writing, Onemind Services will select the method of shipment for the Onemind Services Equipment, and will deliver the Onemind Services Equipment to the Service Location specified in the Order Form. Title and risk of loss pass to Customer upon tender of such Onemind Services Equipment to the carrier at Onemind Services ’s facility. Listed prices do not include shipping and handling fees. Customer is responsible for paying shipping and handling fees.
Ownership and Risk of Loss for Owned Equipment. To the extent Customer owns the Onemind Services Equipment, Customer bears all risk of loss of, theft of, casualty to or damage to the Onemind Services Equipment from the time that we ship it to you until the time (if any) that it is returned to Onemind Services in accordance with this Agreement. If the Onemind Services Equipment is damaged, lost, or stolen, Customer will no longer be able to use the Services and will be required to purchase new Onemind Services Equipment.
Ownership and Risk of Loss for Leased Equipment. To the extent Customer leases the Onemind Services Equipment, the parties intend that the lease constitutes a true lease under the UCC and not a sale of equipment subject to a security interest under Article 9 of the UCC to secure the purchase price of the Onemind Services Equipment. Onemind Services or an authorized third-party lessor, as applicable, has title to leased Onemind Services Equipment at all times, and Customer acquires no ownership, title, property, right, equity or interest in the leased Onemind Services Equipment other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement and the rent obligations set forth in the Order Form or rental agreement. Customer, at its own expense shall maintain, service, repair, and keep each item of leased Onemind Services Equipment. Customer shall bear all risk of loss, damage, destruction, theft, and condemnation to or of such item of leased Onemind Services Equipment from any cause whatsoever.
Third-Party Leasing of Equipment. If Customer leases or otherwise finances its purchase of Onemind Services Equipment from a third-party leasing company, Customer shall be responsible for executing a separate equipment leasing agreement and, unless otherwise specifically provided in the Order Form, shall be responsible for making payment directly to the third-party leasing company. Onemind Services shall not be responsible for any breach of the third-party lease agreement by the third-party equipment leasing company. Moreover, a dispute between Customer and the third-party leasing company shall not affect the rights and obligations of, by, and between Onemind Services and Customer.
Theft of Equipment or Service: Customer shall notify Onemind Services immediately if the Onemind Services Equipment is stolen or if Customer becomes aware at any time that the Services are being stolen, fraudulently used, or otherwise used in an unauthorized manner. Failure to do so in a timely manner may result in the disconnection of the Onemind Services Equipment and additional charges to you. Until such time as Onemind Services receives notice of the theft, fraudulent use, or unauthorized use, Customer will be liable for all costs and damages (including reasonable attorneys’ fees) related to the fraudulent or unauthorized use of Onemind Services Equipment and Services, whether or not it involves stolen equipment. Onemind Services reserves all of its rights at law and equity to proceed against anyone who uses the Equipment illegally or improperly.
Network, Circuit Connection and Equipment. The Services require the ability to transmit data through third-party networks and carriers, public and private (“Third-Party Networks”). Customer acknowledges that use of or presence of Third-Party Networks may require approval of the owners or operators of such Third-Party Networks and will be subject to any terms and conditions that such Third-Party Networks may establish. Customer understands that Onemind Services does not own or control the Third-Party Networks and agrees that Onemind Services shall not be responsible or liable for the performance or non-performance of the Third-Party Networks, or within interconnection points between the Service and the Third-Party Networks. In addition, Customer understands that any circuit installation charges only include access to the building entry point. Any additional charges required by the Third-Party Networks to connect the circuits from the building entry point to the telecommunications room are the responsibility of the Customer. The Third-Party Network and circuit connections, as well as the Onemind Services Equipment, are for utilization by Customer only. Customer may not sell, lease, license, rent or assign access to Third-Party Networks or any Onemind Services Equipment without the express written consent of Onemind Services . Unless otherwise stated in writing, nothing in this Agreement shall be construed as vesting in Customer an ownership interest in the Services, including ancillary wires, lines, circuits or any other products or services provided by Onemind Services other than Onemind Services Equipment.
Limited Onemind Services Equipment Warranty. To the extent Customer purchases or rents Onemind Services Equipment, Onemind Services hereby assigns to Customer, to the extent permitted by the manufacturer, all manufacturers’ warranties for such Onemind Services Equipment (the “Limited Warranty”). Customer must refer to the separate limited warranty documents (if any) provided with the Onemind Services Equipment for information on the scope, limitations, and disclaimers of any warranties and conditions. If any Onemind Services Equipment does not include a limited warranty from its manufacturer, that equipment provided “as is.” If Onemind Services Equipment does not meet the limited warranty associated therewith, Customer may return such Product to Onemind Services for replacement equipment. This Limited Warranty does NOT cover the cost of shipment. Only Customer is authorized to exercise rights under this paragraph. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDY AND ONEMIND SERVICES ’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION.
Marketing and Pricing.
Usage Analysis. Onemind Services may store, analyze and use, on an aggregate basis, its customers’ calling destinations and patterns, product and feature usage, online activity, and other information (i) to customize products or services that Onemind Services may market to Customer and others; and (ii) to comply with Laws. Customer also agrees that Onemind Services may publicly disclose such aggregate calling information about its customers, including Customer.
E-mail Marketing. Onemind Services may, from time to time, send Customer new product and feature announcements, marketing materials and promotional offers via e-mail. Customer may opt-out of such communication by contacting customer service.
Information Accuracy. Onemind Services attempts to describe its products, services, pricing and availability as accurately as possible, but does not warrant that all such information on its website, packaging, brochures, flyers, advertising, email communications and other marketing materials is correct, up-to-date, and error-free.
Customer Support. Onemind Services will make support available to the Customer via its call center, which will be available to attempt to resolve technical issues with, and answer questions regarding, the implementation or use of Services. Such support shall NOTinclude, and Onemind Services shall have no obligation hereunder to perform, any of the following: (a) on-site support; (b) implementation of any software or hardware; (c) customization of any End User equipment, such as fax machines, etc.; (d) configuration of any device; (e) dedicated representative support; or (f) network or third-party equipment support, including any equipment previously owned by the Customer or used in connection with the Onemind Services Services other than the Onemind Services Equipment.
In addition, except with respect to Customers, Onemind Services Meetings are provided as-is and without support, and we make no commitment or guarantee, and shall have no obligation relating to: (a) the availability/unavailability, uptime/downtime, performance, reliability, functionality, or other operation/inoperation of Onemind Services Meetings, or (b) the maintenance or continued provision or support of any particular element, property, feature, functionality, or component thereof.
Additional Terms of Equipment and Service.
Service Distinction. Important distinctions exist between a telecommunications service and Onemind Services ’s Equipment and Services, and Onemind Services ’s Equipment and Services are subject to different regulatory treatment than a telecommunications service. This treatment may limit or otherwise affect Customer’s rights of redress before regulatory agencies.
No Life Safety or Critical Uses of the Products and Services. Customer acknowledges and agrees that the Onemind Services Equipment and Services, whether standing alone or when interfaced with third-party products or services, are not certified for emergency response. Onemind Services makes no warranty or representation that use of the Onemind Services Equipment or Services with any third-party product or service will affect or increase any level of safety. CUSTOMER UNDERSTANDS THAT THE ONEMIND SERVICES EQUIPMENT AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, CUSTOMER UNDERSTANDS THAT UNDER NO CIRCUMSTANCES WILL ONEMIND SERVICES DISPATCH EMERGENCY SERVICES IN THE EVENT OF AN EMERGENCY. CUSTOMER AGREES THAT CUSTOMER WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES.
HIPAA. Customer acknowledges and agrees that the use of the Services are not designed, intended, or recommended for use as a repository or means by which to store “protected health information,” as defined under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto (such laws and regulations, “HIPAA”; such information, “PHI”) on a non-temporary basis, and Customer represents and warrants that neither the Services nor any ancillary product or service that is a part thereof will be used for such purpose. ONEMIND SERVICES SPECIFICALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICES, THE ACCOUNT(S), OR THE ONEMIND SERVICES EQUIPMENT (OR THE USE OF ANY OF THE FOREGOING BY ANY PARTY) COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW.
Third Party Service Providers. Subject to the terms and limitation of this Agreement, the Onemind Services Equipment, if capable, may be used with third party calling service providers where available and pursuant to any terms or limitations that such providers may require as a condition of providing such services.
Reliability of Services. Customer acknowledges that the Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through Customer’s wi-fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional cellular backup service, for which neither Onemind Services nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively, “Service Interruptions”). Customer understands that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. Onemind Services cannot and does not guarantee that Customer will receive notifications within any given time, or at all.
Privacy & Security. The Services use the public internet, Third-Party Networks, and inside wiring in customers’ premises to transmit communications. Onemind Services has engineered the Onemind Services Equipment and Services using commercially reasonable efforts to minimize the risk of any loss in privacy when using such systems. Customer acknowledges, however, that Onemind Services cannot guarantee that Customer’s communications are completely secure. Onemind Services respects your privacy and treats the content of all communications as private, except as may be required by Law.
The safety and security of your personal information, Content and Onemind Services Meeting IDs also depend on you. It is your responsibility to protect the security of your login information, Content and Onemind Services Meeting IDs (including associated passwords).
International Usage. The Onemind Services Equipment and Services have been designed to support installation and use in the U.S. with a U.S. high-speed Internet service provider. Onemind Services currently only provides U.S. phone numbers and cannot guarantee installation, performance, or use of Onemind Services Equipment and Service outside the U.S. If Customer chooses to install and use Onemind Services Equipment and Services outside of the United States, Customer will be solely responsible for any violation of any Laws, such as export laws, tax laws, tariff agreements, U.S. or foreign regulatory rules, U.S. or local laws, or violation of your high-speed internet provider’s terms of service. Customer will also be accountable for payment of any taxes, fees, penalties, and/or surcharges associated with use of the Onemind Services Equipment and Services outside of the United States. Onemind Services reserves the right to suspend Service to any non-U.S. based system at any time.
Voice-to-Text Limitations. Some Onemind Services Services provide a function that allows voicemails to be converted to text. Customer understands and agrees that this voice-to-text conversion may not be accurate, and Customer is responsible for listening to the original voicemail to verify the accuracy of the conversion. Certain Services utilize human-aided conversions and, as a result, the privacy of messages and their content cannot be guaranteed. Customer hereby releases all claims against Onemind Services and its third-party providers with respect to the voice-to-text service.
In addition, the Host and any Participant can choose to transcribe meetings held via Onemind Services Meetings using a third-party service, which transcription will be made available via a private website link that will be made available only to the Host and the Participants of that particular meeting. However, meeting audio may not be completely or accurately transcribed. Some common limitations include poor quality or unrecognizable audio content, multiple speakers, use of uncommon words, phrases or industry-specific terminology, and accent of speaker. Onemind Services is not responsible for and makes no representation as to the accuracy of any transcription, and expressly disclaims any and all liability with respect to transcriptions.
May Not Support x11 Calling. The Onemind Services Equipment, if not connected to a landline, may not support 311, 511 and/or other x11 services in one or more (or all) service areas (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement, and 711, which is used to access telecommunications relay services). To keep all of these services, please have your Equipment, if your Equipment is capable of doing so, connected to a landline.
No 0+ or Operator Assisted Calling. The Equipment, if not connected to a landline, does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls).
Third-Party Products and Services. Onemind Services assumes no obligation to provide support services for any third party products or services, or for problems with Onemind Services Services caused by third party products or services.
Onemind Services Meetings. Onemind Services Meetings, which enables Hosts to schedule and start meetings via videoconference and to allow Participants to join such meetings.
You agree that you are solely responsible for the Content you send or transmit, display or upload using Onemind Services Meetings and for compliance with all laws pertaining to the Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that you have the right to upload the Content to Onemind Services Meetings and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Onemind Services be liable in any way for any (a) Content that is transmitted or viewed while using the Onemind Services Meetings, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content or Onemind Services Meetings. Although we are not responsible for any Content, we may delete any Content at our sole discretion, at any time without notice. You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, Onemind Services Meetings.
EMERGENCY 911 SERVICES
Customer acknowledges and understands that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs and to make necessary provisions for access to emergency calling services (such as maintaining a conventional landline phone or wireless phone as a backup means of completing emergency calls).
Emergency Services – 911 Calling
Non-Availability of Traditional 911 or E911 Calling Service. Onemind Services E911 Service (the “E911 Service”) is a mandatory component of the Services and is only available in certain areas. Most Customers have access to either Basic 911 Service or Enhanced 911 Service, as defined in subsection 12(b)ii.1. The E911 Service enables Customers to communicate with emergency services by dialing 911. However, the E911 Service is different in important ways from traditional landline 911 and cellular/wireless 911, depending upon where Customer is located and the device used with the Services. Customer agrees to notify any user or potential user of the Services who may place calls using Customer’s Services of the 911 limitations described herein. Customer agrees to place a label on and/or near each telephone or other Customer Equipment on which the Services may be utilized regarding the limitations or unavailability of 911 emergency dialing.
Description of Emergency Dialing Capabilities.
How it Works. When a Customer dials 911 from a device connected to or used with the Services (a “Onemind Services device”), the Onemind Services phone number and the registered address Customer has provided to Onemind Services is sent to the local emergency center serving the location of your registered address to enable emergency operators to send help and to call the Customer back, if necessary (“Enhanced 911 Service”). In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to see your Onemind Services telephone number or your registered address. Customers in locations in which the emergency center is not equipped to receive the Customer’s telephone number and/or address have what is called “Basic 911 Service.” Customer should always be prepared to provide the emergency operator with Customer’s telephone number and location. Until the Customer gives the requisite call back and location information to the emergency operator, the emergency operator may not be able to dispatch help or return the Customer’s call. This is especially the case if the call is not completed or forwarded, is dropped or disconnected, or if the Customer is unable to speak. As local emergency centers become capable of receiving Customer’s address and call back information, Onemind Services will automatically upgrade customers with Basic 911 service to Enhanced 911 Service. Onemind Services will not provide notice of the upgrade. Onemind Services does not control whether or not the emergency operator receives Customer’s telephone number and address.
No Access to Enhanced or Basic 911 Service. Certain Customers do not have access to either Enhanced 911 Service or Basic 911 Service. If Customer does not have access to Enhanced 911 Service or Basic 911 Service, the Customer’s emergency call will be sent to a national emergency call center. In such case, an agent at the emergency call center will ask the Customer for his/her name, telephone number and location and will then contact the local emergency center for such location in order to send help. Examples of situations where 911 calls will be sent to the national emergency call center include when there is a problem validating a Customer’s address, the Customer is identified with an international location, or the Customer is located in an area that is not covered by the 911 network. Until Customer gives the agent Customer’s telephone number and location, he/she may not be able to call Customer back or dispatch help to Customer’s location if the call is dropped or disconnected.
Desktop or Softphone App 911 Calls. EMERGENCY CALLS CANNOT BE PLACED THROUGH SOFTPHONES THAT ARE NOT 911-ENABLED. If Customer uses a Desktop or Softphone app, 911 calls will be routed to the local emergency center serving the 911 location that is associated with the Desktop or Softphone app. Therefore, if Customer is using the Desktop or Softphone app in a nomadic manner (e.g., from a hotel, from a home office, etc.), the Customer must update the 911 location on an ongoing basis to ensure that 911 calls will be sent to the appropriate local emergency center that serves the then current Customer location.
E911 Service Fees. Customers are required to subscribe to the E911 Service and will be subject to monthly, government-imposed fees (the “E911 Service Fees”), which are in addition to any applicable state 911 tax based on Customer’s service address and in addition to the applicable Service Fees for the associated line(s). If the E911 Service Fees are not paid, the emergency communications district in Customer’s jurisdiction may seek to collect such amounts from Customer directly. Onemind Services does not profit from Customer’s E911 Service and the E911 Service Fees collected are turned over to the appropriate government authority pursuant to their requirements. Onemind Services reserves the right to adjust the E911 Service Fees associated with the provision of the E911 Service to reflect increases or decreases in the costs it incurs in providing the E911 Service.
Registered Location Required. Upon creation of the Customer account, Onemind Services initially assigns all extensions and Onemind Services devices to the physical street address on file for the Customer. Prior to activation of the Services, Customer shall: (i) register with Onemind Services all additional 911 locations where the Services are to be used, as necessary; and (ii) assign each Onemind Services device to one of the registered 911 locations. In some cases, one extension may have multiple Onemind Services devices, and each such Onemind Services device needs to be assigned a 911 location. Customer may register multiple 911 locations per account and assign all active extensions and Onemind Services devices to such 911 locations. Individual end users may assign and re-assign their current location(s) on an as-needed basis. Customer agrees to ensure that the physical location(s) provided to Onemind Services are correct, and to immediately update such location(s) whenever the physical location(s) of the Onemind Services devices change. If an Onemind Services device will be used in a different or new location, Customer must create and/or register the location for the Onemind Services device. If Customer does not register the new location, any 911 call made from the Onemind Services device may be sent to an emergency center near the prior, registered location. In most cases, the registration process occurs in real-time. In some cases, the registration will be referred to a 911 provider for validation, which could take days. Customer (i) acknowledges and understands that any location information passed to emergency personnel by Onemind Services will be based upon the physical location information provided by the Customer, and (ii) agrees to promptly assist Onemind Services in validating a 911 location address that has been rejected by the 911 provider. Customer will receive a confirmation email when the 911 location has been validated for: (i) the initial registered location; and (ii) for any subsequent locations submitted by Customer. If Onemind Services is unable to validate the address Customer provides during the registration process, Onemind Services may terminate Customer’s account.
Use of Service Outside United States or Canada. Customer acknowledges that if a user of the Services calls 911 from outside the United States or Canada, the user may be instructed to hang up and call their local service provider. Customer shall notify all users (i.e., business colleagues, employees, guests and other persons who may be present at the physical location where Customer uses the Services) that 911 may not be available outside the United States and Canada and that 911 service may be limited in comparison to traditional 911 service. For clarity, 911 service is available only in the 50 United States, the District of Columbia, and Canada, and is not provided in any US territory or in other international locations.
Failure to Designate and Identify the Correct Physical Address. Customer’s failure to provide and keep current Customer’s correct physical location(s) may result in any 911 call or other emergency communication made by Customer or from Customer’s actual location (if different from the location previously supplied to Onemind Services by Customer) being routed to the incorrect local emergency service provider. Most post office box addresses are not eligible as a validated 911 location. Customer’s physical location(s) may NOT be a mail drop or similar address. If Customer dials 911 before Customer’s registered location has been entered in the emergency operator’s database, Customer’s call will be routed to a national emergency call center. Customer acknowledges that Onemind Services ’s only mechanism for routing 911 calls to the correct emergency call taker is the physical location currently registered for Customer’s account. Customer acknowledges and understands that any enhanced location information passed to an emergency operator by Onemind Services will be based upon the physical location provided to Onemind Services by Customer. In the event the physical location has not been updated or is not complete, Onemind Services may attempt to route a 911 call based upon the bill to or ship to address associated with Customer’s account or initial order.
Mobile Applications. Any Onemind Services mobile application (each a “Mobile App”), if applicable, is not a replacement for your cellular service. However, this does not prevent you using your mobile phone for making emergency calls via your cellular provider as normal. YOU SHOULD NOT USE YOUR MOBILE APP FOR DIALING 911 UNLESS YOU ARE LOCATED AT THE PHYSICAL ADDRESS THAT YOU HAVE REGISTERED FOR THE PHONE NUMBER ASSOCIATED WITH YOUR MOBILE APP. IF YOU DIAL OR TEXT 911 WHEN USING YOUR MOBILE APP, YOUR CALL WILL BE ROUTED TO THE EMERGENCY CALL TAKER ASSOCIATED WITH THE PHYSICAL LOCATION YOU HAVE REGISTERED FOR THE PHONE NUMBER ASSOCIATED WITH THE APP. TO ENSURE PROPER CALL ROUTING, WHEN MAKING 911 CALLS WITH YOUR MOBILE DEVICE, YOU SHOULD MAKE SUCH CALLS USING YOUR CELLULAR CONNECTION AND NETWORK THROUGH YOUR CELLULAR PROVIDER.
Power Failure or Disruption. Emergency dialing will not function in the event of a broadband, power or ISP Service failure or disruption. If there is an interruption in the power supply, a power surge or a power failure, the Services and emergency dialing will not function until power is restored. A power failure, power surge or power disruption may require Customer to reset or reconfigure equipment prior to using the Services or being able to make emergency 911 calls.
Service Suspension or Termination by Onemind Services . A Services outage or suspension (including, without limitation, suspension of Services due to billing issues or delinquent or unpaid invoices) or termination of Services by Onemind Services will prevent ALL calls from being made through the Services, including the ability to make emergency 911 calls.
Other Service Outages. If there is a Services outage for ANY reason, such outage will prevent ALL calls from being made through the Services, including the ability to make emergency 911 calls. Such outage may occur for a variety of reasons, including, without limitation, those reasons described elsewhere in this E911 Notice or the Agreement.
Automated Number Identification. Due to limitations at public-safety answering points (“PSAP(s)”), it may not be possible for the PSAP and the local emergency personnel to identify Customer’s telephone number (or the number assigned by Onemind Services ) when Customer dials 911 via the Services. PSAP and emergency personnel may be unable to identify Customer’s telephone number in order to call Customer back in the event that an emergency call is unable to be completed, is dropped or disconnected, or if a caller is unable to speak to provide the telephone number from which the caller is calling, and/or if the Services is not operational for any reason including, without limitation, the reasons and situations listed elsewhere in this E911 Notice or the Agreement.
Automated Location Identification. Due to limitations at PSAPs, it may not be possible to transmit identification of the Customer physical location address to the PSAP and local emergency personnel for Customer’s area when Customer or any caller at Customer’s premises dials 911. A caller must state the nature of the emergency promptly and clearly, including the caller’s specific physical location, as PSAP and emergency personnel may NOT have this information. PSAP and emergency personnel may not be able to find a caller’s location if the call is unable to be completed, is dropped, or disconnected, or if the caller is unable to speak to provide the location from which the caller is calling and/or if the Services are not operational for any reason including, without limitation, those reasons and situations listed elsewhere in this E911 Notice or the Agreement.
Disclaimers; Limitation of Liability.
ONEMIND SERVICES SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED WITH ANY FAILURE OF THE SERVICES, OR LACK OF AVAILABILITY TO REACH 911 SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT ONEMIND SERVICES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY SERVICES OUTAGE OR INABILITY TO COMPLETE EMERGENCY 911 CALLS FROM ANY ONEMIND SERVICES DEVICE, CUSTOMER LINE OR CUSTOMER PREMISES OR TO ACCESS EMERGENCY SERVICE PERSONNEL, OR IN THE EVENT THAT CUSTOMER OR ANY OTHER CALLER FROM CUSTOMER’S EQUIPMENT IS UNABLE TO PLACE, OR COMPLETE, A CALL TO 911 OR E911 SERVICES, OR IN THE EVENT THAT EMERGENCY RESPONDERS DO NOT RESPOND, OR DO NOT RESPOND TO THE LOCATION AT WHICH THE EQUIPMENT, CUSTOMER, OR CALLER IS PHYSICALLY PRESENT OR REQUIRE SUCH SERVICES. IN NO EVENT SHALL ONEMIND SERVICES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES RELATED TO CUSTOMER’S (OR ANY CUSTOMER EMPLOYEE, AGENT, CONTRACTOR, OR THIRD PARTY OR USER OF THE SERVICES) USE OF OR INABILITY TO USE E911 SERVICE. UNDER NO CIRCUMSTANCES WHATSOEVER WILL ONEMIND SERVICES HAVE ANY LIABILITY ASSOCIATED WITH 911 OR E911 SERVICES, INCLUDING, AND WITHOUT LIMITATION, IN THE EVENT OF: A) LOSS OF ELECTRICAL POWER; B) LOSS OF INTERNET CONNECTIVITY; C) DEFECTIVE OR MISCONFIGURED EQUIPMENT; D) NETWORK CONGESTION; E) DELAYS ASSOCIATED WITH UPDATING REGISTERED SERVICE LOCATION; F) RESTRICTIONS CREATED BY NONVOICE EQUIPMENT; G) RELOCATED EQUIPMENT, INCLUDING OUTSIDE OF THE UNITED STATES OR CANADA; H) THE SIMULTANEOUS USE OF ONE LINE WITH MULTIPLE PIECES OF EQUIPMENT; I) FAILURE OF EMERGENCY RESPONSE CENTERS TO ANSWER A 911 CALL; J) FAILURES OF ANY THIRD PARTIES THAT ARE RESPONSIBLE FOR ROUTING 911 CALLS; K) THE USE OF NONNATIVE TELEPHONE NUMBERS; L) FAILURE OF ANY EMERGENCY SERVICE PERSONNEL TO CALL BACK DIRECTLY TO THE NUMBER FROM WHICH A 911 CALL WAS MADE OR FAILURE OF EQUIPMENT TO RECEIVE CALLBACKS FROM EMERGENCY SERVICE PERSONNEL; or M) ANY FORCE MAJEURE EVENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF ONEMIND SERVICES ’S LIABILITY IS A MATERIAL TERM TO THE AGREEMENT, AND THAT IT WOULD NOT OTHERWISE ENTER INTO THE AGREEMENT WITHOUT THIS LIMITATION, AND THAT CUSTOMER AGREES THAT THESE LIMITATIONS ARE REASONABLE.
BY USING THE SERVICES AND/OR ONEMIND SERVICES EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF ONEMIND SERVICES E911 SERVICE AS DESCRIBED IN THIS SECTION 12. CUSTOMER AGREES AND ACKNOWLEDGES THAT WHILE MOST ONEMIND SERVICES SERVICES OFFER ACCESS TO E911 SERVICE, OTHERS MAY NOT. CUSTOMER IS ADVISED TO THOROUGHLY READ AND UNDERSTAND THE E911 DISCLOSURE AND THE OPTIONS AVAILABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED THIS E911 DISCLOSURE AND HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THE E911 DISCLOSURE, AND ASSUMES THE RISKS ASSOCIATED WITH THE ONEMIND SERVICES E911 SERVICE LIMITATIONS.
Emergency Calling Indemnification. Customer shall protect, defend, indemnify, and hold harmless Onemind Services and its officers, directors, employees, affiliates, contractors and agents and any other service provider that furnishes services to Customer in connection with the Services, from and against any and all claims, lawsuits, losses, damages, liability, fines, penalties, costs and expenses, including, without limitation, attorneys’ fees and costs, arising from or related to any absence, failure or outage of the Services, including, without limitation, emergency 911 calling and/or inability of Customer or any Customer employee, third person or party, or user of the Services, to be able to call 911 or to access emergency service personnel.
Onemind Services ’s Indemnification of Customer. Onemind Services agrees to defend, indemnify and hold harmless Customer against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) (“Losses”) arising out of or related to any third-party claim alleging: (i) any harm to any person resulting in the personal injury or death of any person or in damage to or loss of any tangible property located at Customer’s premises that results from any grossly negligent or willful acts or omissions of Onemind Services or of any agent, employee or contractor of Onemind Services ; (iii) Onemind Services ’s material breach of this Agreement; or (iii) violation of any applicable Law by Onemind Services .
Customer’s Indemnification of Onemind Services . Customer agrees to defend, indemnify and hold harmless Onemind Services and its officers, directors, employees, affiliates, agents, assigns and any other service providers who furnish services to Onemind Services or Customer in connection with the use of the Onemind Services Equipment and Services against any Losses arising out of or related to any third-party claim alleging: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any of Customer’s End Users; (ii) Customer’s material breach of this Agreement; (iii) any claim by any employee or invitee of Customer or Customer’s End Users other than a claim based on the gross negligence or willful misconduct of Onemind Services ; (iv) any damages relating to, or arising from Customer’s or Customer’s End User’s use of the Services or Equipment, including the unauthorized use of the Services or Equipment and the transmission of any messages, content, images or other information; (v) any claims for infringement of any IP Rights arising from or in connection with the Customer’s or Customer’s End User’s use of the Equipment or Services or (vi) violation of any Law by Customer or Customer’s End Users.
Mutual Provisions.Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the claim (provided that the indemnifier may not settle or defend any claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such claim.
Limitation of Liability; Disclaimers
Except as expressly provided in this Agreement, Customer acknowledges and agrees that the Services and Onemind Services Equipment are provided on an “AS IS”, as available basis. Other than as expressly provided herein, ONEMIND SERVICES DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY IP RIGHTS TO THE MAXIMUM EXTENT PERMITTED BY LAW. Onemind Services does not warrant that the Services or Onemind Services Equipment will meet the Customer’s requirements or that the operation of the Services or Onemind Services Equipment will be secure, uninterrupted or error-free. Further, Onemind Services does not warrant that all errors in the Services or Onemind Services Equipment can be corrected.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS, OR LOST REVENUE. UNDER NO CIRCUMSTANCES WILL ONEMIND SERVICES BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S OR END USER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN. ONEMIND SERVICES IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABLITY FOR, RELATED TO, OR ARISING OUT OF, CUSTOMER’S FAILURE TO (A) ENTER THE CORRECT INFORMATION WHILE PROGRAMMING THE EQUIPMENT, (B) TEST THE FUNCTION AND RANGE OF THE EQUIPMENT AND SERVICES, (C) CHARGE THE EQUIPMENT, IF APPLICABLE. ONEMIND SERVICES SHALL HAVE NO LIABLITY WHATSOEVER FOR ANY DAMAGES RESULTING FROM FORCE MAJEURE EVENTS; LOSS OF POWER TO CUSTOMER; INSTALLATION WORK PERFORMED BY CUSTOMER OR THIRD PARTIES; OR ANY ACT OR OMISSION BY CUSTOMER OR ANY PERSON USING THE EQUIPMENT OR SERVICES PROVIDED TO CUSTOMER; EQUIPMENT, NETWORK OR FACILITY FAILURE; AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR, OR OTHER THIRD PARTY, INCLUDING BLOCKING OF PORTS BY CUSTOMER’S INTERNET SERVICE PROVIDER OR OTHER IMPEDIMENT TO THE USE OF THE EQUIPMENT OR SERVICES CAUSED BY ANY THIRD PARTY; OR ANY OTHER CAUSE THAT IS BEYOND ONEMIND SERVICES ’S REASONABLE CONTROL. ONEMIND SERVICES ’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER, INCLUDING ACTS OR OMISSIONS RELATED TO THE SERVICES OR 911 DIALING, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ONEMIND SERVICES . Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer. However, and notwithstanding the provisions of this section, the parties agree that neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entry into this Agreement. No action against either party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.
Governing Law. This Agreement and the relationship between Onemind Services and Customer are governed by the laws of the state of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 16, such action shall only be brought in a court of competent jurisdiction in Santa Clara County and Customer submits to the personal and exclusive jurisdiction of the courts located within the state of California and waives any objection as to venue or inconvenient forum.
Mandatory Binding Arbitration; Waiver of Jury Trial. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM ONEMIND SERVICES . Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Customer and Onemind Services further agree that each may bring suit in court to enjoin a breach of confidentiality or infringement or other misuses of IP Rights. Notwithstanding anything to the contrary in the Agreement, Onemind Services may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged breach of confidentiality or infringement of Onemind Services ’s or any other person or entity’s IP or proprietary Rights. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS ONEMIND SERVICES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND ONEMIND SERVICES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
U.S. Export Controls. Customer will 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 (the “U.S. Export Controls”). Without limiting the generality of the foregoing, Customer expressly agrees to not export, directly or indirectly, re-export, divert, or transfer any portion of the Equipment or Services or any direct product or technical data thereof to any destination, company, or person restricted or prohibited by U.S. Export Controls. Customer further represents and warrants that Customer (or if acting on behalf of a business, the business and its officers, directors and shareholders) are not listed on any Specially Designated Nationals or other denied parties list issued by any agency of the U.S. Government.
Copyright Infringement; Digital Millennium Copyright Act (DMCA) Notice. Materials may be made available via the use of the Equipment and Services by third parties not within Onemind Services’s control. OneMind Services is under no obligation to, and does not, review content posted, published, or broadcast through the Services for illegal or impermissible content. However, OneMind Services respects the copyright interests of others. It is Onemind Services ’s policy not to permit materials known by it to infringe another party’s copyright to be posted, published, or otherwise broadcast through our Services. If Customer believes any of the materials that Onemind Services knowingly posts, publishes, or broadcasts infringes a copyright, Customer should provide Onemind Services with written notice that, at a minimum, contains: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing, or to be the subject of infringing activity, that is to be removed or disabled, and information reasonably sufficient to permit Onemind Services to locate the material; (d) information reasonably sufficient to permit Onemind Services to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. All DMCA notices should be sent to OneMind Services’ designated agent as follows: OneMind Services Legal Department, 525 Almanor Ave., Suite 200, Sunnyvale, CA 94085.
TCPA Consent & Privacy.
Customer expressly consents to be contacted by OneMind Services, its agents, representatives, affiliates, or anyone calling on OneMind Services’s behalf for any and all purposes arising out of or relating to Customer’s Services, at any telephone number, or physical or electronic address Customer provides. OneMind Services may contact Customers in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using an automatic telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. Customer certifies, warrants, and represents that the telephone numbers that Customer has provided to OneMind Services are correct numbers. The customer represents that it is permitted to receive calls at each of the telephone numbers it has provided. Customer agrees to promptly alert Onemind Services whenever it stops using a particular telephone number. The customer’s cellular or mobile telephone provider will charge the Customer according to the type of plan it carries. The customer also agrees that OneMind Services may contact it by e-mail, using any email address provided to OneMind Services now or in the future.
OneMind Services may listen to and/or record phone calls between Customer and OneMind Services representatives without notice to you as permitted by applicable law. For example, OneMind Services listens to and records calls for training and quality monitoring purposes.
The customer’s agreement with this Section 19 is not a condition of doing business with OneMind Services. If the Customer would like to opt-out of this provision, please call contact customer service.
Notices regarding the following may be posted on OneMind Services’ website: (a) modifications, impositions or increases to regulations and Regulatory Fees; (b) new or modified documentation, including but not limited to OneMind Services’ internal documents and policies; (c) changes to rates, other than those affecting Customer under this Agreement; and (d) new Services and information. The changes will become effective and will be deemed accepted by Customer, either immediately for those Customers who purchase the Services after the updated version is published on OneMind Services’ website, or for those having pre-existing accounts, the updated terms will be deemed effective with Customer’s continued use of the Service. Notices regarding: (v) other terms of this Agreement; (w) internal or external changes materially impacting Onemind Services ’s ability to do business; (x) breach; (y) termination; or (z) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either Party at the addresses provided in the Order Form or otherwise designated in writing from time to time.
Amendments to the Agreement. Other than as stated above, this Agreement may only be modified by a written instrument signed by both parties acknowledging that it is an amendment to this Agreement.
Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement (except for any obligations to make payments to the other party hereunder), due to any cause beyond its reasonable control, including (but not limited to), acts of nature, strikes, war, invasion, insurrection, hostilities (whether or not war is declared), riots or other civil unrest, acts or threats of terrorism, cyber-attack (hacking and DDOS), natural disasters, pandemic, epidemic, quarantine restriction or state(s) of emergency, any action(s), order, law, regulation or restriction of any governmental or regulatory body (including, but not limited to, the denial or cancellation of any necessary license or permit, actions, embargoes or blockades), loss of power to Customer, installation work performed by Customer or by third parties, or any act or omission by Customer or any person using the Equipment or Services provided to Customer, equipment, network or facility failure, shortage, upgrade, relocation or modification; or any act or omission of any underlying carrier, service provider, vendor, or other third party, including blocking of ports by your high-speed internet service provider or other impediment to the usage of the Equipment or Services caused by any third party, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
Assignment. The customer may not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of OneMind Services. If a party acquires all or substantially all of Customer’s assets as part of a corporate merger or acquisition and provided the assignee agrees to be bound by the terms of this Agreement, Customer can update its account using OneMind Services’s Service Takeover Authorization Form. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
Non-Solicitation. During the Term, neither party shall employ, offer employment to or solicit the employment of any individual employee or the independent contractor employed or engaged by the other party. Nothing herein shall prohibit or prevent either party from soliciting employees, or former employees of the other party by general solicitations, such as advertising or websites, not specifically targeted at specific employees of the other party.
No Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted, and any such waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing waiver.
Severability. In the event any court of competent jurisdiction determines that any of the terms and conditions of this Agreement are unenforceable or invalid, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby and full force and effect shall be given to such remaining provisions. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written, or any public comments made by Onemind Services with respect to future Services, functionalities, or features.
OneMind Services Service Level Agreement
OneMind Services provides the following service-level agreement (“SLA“) for Customer and its individual End User Locations:
OneMind Services agrees to respond to all SLA-related inquires within the stated time frames, below, 95% of the time in each calendar month:
In each End User Location where Onemind Services provides access to the Service, a guarantee of 99.999% service uptime will be provided accordingly. “End User Location” means any single location where a Customer End User receives Services. In any calendar month in which greater than five (5) minutes of downtime occurs at an End User Location, OneMind Services shall provide credits to the Customer equal to its monthly Service Fee divided by the number of minutes of excess downtown for each minute above five (5) minutes (the “Service Credits”). Service downtimes in multiple End User Locations cannot be combined and Service Credits will only be calculated based on the minutes of downtime for each End User Location.
Service Credits will be applied against future payments due to OneMind Services. Service Credits will not entitle Customer to any refund or other payment from OneMind Services and may not be transferred or applied to any other account or End User Location or exchanged for, or converted to, monetary compensation. Customer’s sole and exclusive remedy for any unavailability, non-performance, or failure by Onemind Services to provide the Services is the receipt of a Service Credit in accordance with the terms of this Agreement. In order to receive any of the Service Credits described above, the Customer must notify Onemind Services by email or otherwise in writing within thirty (30) days from the time Customer becomes eligible to receive the Service Credits.
Service Credits do not apply in the case of performance issues caused by: (i) factors outside of OneMind Services’s reasonable control; (ii) any actions or inactions of Customer or any third parties; (iii) Site electrical and internet outages; or (iv) malfunctioning hardware managed and owned by the Customer, such as Customer’s Broadband Connection or Broadband Modem.
OneMind Services cannot guarantee any quality of service using Customer’s Broadband Connection or Broadband Modem, nor can we monitor the health of the Broadband Modem circuit. Any call quality or Broadband Connection-related issues will not be OneMind Services ’s responsibility, nor does Onemind Services have the ability to improve the call quality. OneMind Services will undertake to provide its own dedicated voice circuits with OneMind Services provided modems and routers as quickly as possible, and when available Onemind Services will migrate the voice services to these circuits, after which Onemind Services’ SLA shall apply. OneMind Services cannot provide any assurances that any Customer-furnished switch will interoperate properly with OneMind Services’ equipment. If OneMind Services cannot successfully utilize Customer-furnished devices, OneMind Services will provide a suitable PoE switch that has been certified with the OneMind Services network, and this will be done at the Customer’s expense.