Terms of Service 05-27-2015
These terms of service govern the purchase and use of the business communications service and related equipment provided by Jive Communications, Inc. (“Jive”) and are between Jive and the “Customer” identified in a signed sales quote.
The parties agree as follows:
- Term. Unless the sales quote states otherwise, the services are provided on a month-to-month basis, and the term begins on the date Jive first activates Services for the Customer.
- Extension of Term. (a) Except as stated in section 2(b), if the sales quote states an initial term longer than one month, this agreement will be automatically extended for an unlimited number of successive one-year periods unless the Customer delivers notice of termination no less than 30 days before the end of the term.
(b) Instead of automatic extension under section 2(a), the Customer may elect to extend this agreement after the initial term on a month-to-month basis by delivering notice of its election to Jive no less than 30 days before the end of the term.
- Early Termination. If the sales quote states an initial term longer than one month and the Customer terminates this agreement for any reason or if Jive terminates this agreement because of the Customer’s breach, the Customer shall pay an early termination fee equal to the lesser of (1) $50 per device or SIP trunk for every six-month interval, or part thereof, between the date of termination and the end of the term or (2) all applicable Service Charges through the end of the term.
- Adding or Removing Services. The Customer may add Services to its account at any time, and Jive will prorate the Service Charges for the first month. To reduce the number of Services, or to terminate this agreement, the Customer must notify Jive no less than 10 days before the end of the term, and the reduction or termination will take effect after the end of the term. The Customer will be deemed to have terminated this agreement if the Customer removes all devices and SIP trunks from its account.
- Equipment Purchase and Cancellation. (a) The Customer may cancel an equipment purchase without any fee by notifying Jive no later than 24 hours after submitting the order.
(b) After 24 hours, the Customer may cancel an equipment purchase or reject delivered equipment by delivering written notice to Jive no later than 5 business days after delivery of the equipment. The Customer shall pay a 30% restocking fee for all equipment purchases canceled or rejected under this section 5(b). Jive will not accept any returned equipment that is not in like-new condition, that is returned without its original packaging, or that is returned more than 30 days after the date of delivery.
- Equipment Rental. If the Customer is renting any equipment from Jive, the terms of the Equipment Rental Agreement, available at jive.com/legal/equipment-rental-agreement/, are hereby incorporated by reference.
- Appropriate Use. The Services are for the Customer’s own commercial or governmental use only. Jive may immediately terminate this agreement if it determines that the Customer is reselling Services or is using them in any way that is defamatory, harassing, or threatening or is otherwise inconsistent with applicable laws or these terms of service. If the Customer wants to use Services from outside the United States, it must determine whether doing so is legal in that location.
- Reasonable Use. The Customer acknowledges (1) that any reference Jive has made to “unlimited” minutes or features refers to Jive’s practice not to charge users on a per-minute or per-use basis when use is reasonable and (2) that Jive does not offer “unlimited” plans for call center operations, fax spamming, or other activities that use an extraordinary amount of connectivity to the public switched telephone network (the “PSTN”). Jive may limit PSTN connectivity, impose per-minute charges for excessive use, or terminate this agreement if it determines that the Customer’s average per-user PSTN connectivity is unreasonable as compared to other customers.
- Billing; Billing Disputes. (a) Jive shall invoice the Customer each month for the Service Charges, Rental Charges, and any Other Charges. Except as permitted under section 9(c), the Customer shall pay each invoice in full by the due date.
(b) If this agreement is terminated, all unpaid Service Charges, Rental Charges and Other Charges will become due immediately.
(c) To dispute an unpaid invoice, the Customer must, no later than the due date of the invoice, (1) notify Jive of the dispute and (2) pay all undisputed portions of the invoice. To dispute a paid invoice, the Customer must notify Jive of the dispute no later than 60 days after the date of the invoice. If the Customer fails to pay the undisputed portions of an invoice by the due date of the invoice, or if it fails to provide notice as required in this section, it hereby waives its right to dispute any portion of the invoice. The Customer must notify Jive of any billing dispute by phone at (801) 426-5782, option 3, by email at email@example.com, or by delivering notice to Jive Communications, Inc., Attn: Accounts Receivable, 1275 West 1600 North, Suite 100, Orem, UT 84057.
- Non-Appropriation of Funds. If the Customer is a school or other government agency, and (1) funds are not appropriated to pay for the Services or functionally similar services in any fiscal period during the term of the agreement, (2) operating funds are not otherwise available to pay the Service Charges and Other Charges, (3) there is no other legal procedure available to pay the Service Charges and Other Charges, and (4) the non-appropriation did not result from any act or omission of the Customer, the Customer may terminate this agreement on the last day of the last fiscal period for which appropriations were received. The Customer shall provide notice of the non-appropriation no less than 30 days before the termination under this section is to become effective.
- Government Fees and Taxes. Jive pays taxes and other costs imposed by government authorities in connection with its provision of Services. Jive may charge the Customer a regulatory fee to recover any such taxes or other costs associated with Services provided to the Customer, regardless of whether Jive has passed on such taxes or costs in the past. Jive may increase or decrease the regulatory fee without notice.
- Late Fees. (a) Jive may charge a late fee up to $15 or 1.5%, whichever is greater, for any amount unpaid by the due date. Jive may charge a separate late fee for each whole or partial billing period the Customer’s payment is late.
(b) Jive will charge a late fee for a disputed amount if (1) it was not paid by the due date and (2) Jive determines that the Customer disputed the charge in bad faith.
(c) Jive may use collection services to recover unpaid charges and may report late payments to credit bureaus or other entities. The Customer shall pay any attorneys’ fees or other amounts Jive spends to collect unpaid charges.
- Returned Check Fees. Jive may charge up to the maximum amount permitted by law if the Customer’s banking institution dishonors or reverses a check, draft, or other payment.
- 911 Dialing; Service Availability; Location Information. (a) The Customer acknowledges (1) that it has read and understood Jive’s 911 and Service Availability Policy, which is available at jive.com/legal/911-service-availability-policy/, and (2) that 911 dialing service offered by Jive (“Jive 911 Dialing”) differs from 911 dialing service offered by traditional telephone carriers in the ways described in the 911 and Service Availability Policy, including that Jive 911 Dialing will not function if the Customer loses electrical power or broadband internet connection or if anything on the Customer’s wide area network or local area network blocks the Customer’s connection to Jive’s platform.
(b) The Customer shall provide Jive the physical location of each device used to make or receive calls, and Jive shall not initiate Services until it has received this information. If the Customer relocates any device, it shall promptly notify Jive’s Fulfillment Department of the device’s new location by phone at (801) 717-1556, or by e-mail at firstname.lastname@example.org and shall pay any fees associated with updating the location database.
(c) Location and callback information associated with a device will normally be automatically forwarded to an emergency dispatch center when using Jive 911 Dialing. Because some emergency dispatch centers are not equipped to receive such location and callback information, the Customer acknowledges that it may need to provide location and callback information verbally. Automatic forwarding of location and callback information is not activated for any device until Jive notifies Customer by e-mail that it has been activated.
- Limit of Liability. (a) Jive and its representatives will not be liable for any damages or other claim arising from any person’s use of or inability to use the Services because of a failure or degradation of a third party provider’s network, a failure or degradation of broadband internet service, a force majeure event, or any other third-party cause, whether the claim is founded in breach of contract, breach of warranty, negligence or any other theory of liability.
(b) In no event will Jive’s total liability under this agreement exceed the amount the Customer paid to Jive in the month before the event giving rise to the claim.
- Disclaimer of Warranties. Jive hereby disclaims the implied warranties of merchantability, fitness for a particular purpose, noninfringement of intellectual property rights, and all other express or implied warranties for the Services and any related equipment.
- Manufacturer’s Warranty. Jive hereby assigns to the Customer all rights it has under any manufacturer’s warranty for equipment it sells to the Customer. Subject to section 16, Jive may assist the Customer in obtaining replacement or service under the manufacturer’s warranty.
- Indemnification. The Customer shall indemnify Jive and its representatives against any claims arising from the use or inability to use the Services by the Customer or its representatives unless the claim arises from Jive’s gross negligence or reckless conduct.
- Shipment. Risk of loss or damage to equipment during shipment belongs to the shipping party unless the receiving party has requested a different shipping carrier, in which case the receiving party bears the risk. After the equipment arrives at the location specified by the receiving party, the risk of loss or damage belongs to the receiving party.
- Call Recording. The Customer acknowledges that it has read and understood Jive’s Call Recording Information, available at jive.com/legal/call-recording-info.
- Entire Agreement; Modification. These terms of service constitute the entire agreement between Jive and the Customer and supersede any previous agreement. Jive may modify this agreement by posting revised terms online at jive.com/legal, without additional notice to the Customer. The revised terms of service will take effect 30 days after posting. No other modification to these terms of service will be effective unless made in a writing signed by both parties to the agreement.
- Binding Arbitration. Except for collection efforts under section 12(c) and enforcement of an arbitration order under this section 22, if the parties are unable to resolve any dispute arising from this agreement by direct negotiation, they shall resolve the dispute through binding arbitration in Salt Lake City, Utah before a single arbitrator from the American Arbitration Association in accordance with its Commercial Arbitration Rules. The parties hereby waive any right to a jury trial in connection with any claim arising from this agreement.
- Attorney’s Fees. If any arbitration or legal proceeding is validly instituted to enforce the terms of this agreement, the prevailing party may recover its attorneys’ fees and other costs.
- Governing Law; Personal Jurisdiction; Venue. This agreement is governed by the laws of the State of Utah without regard to its conflicts-of-law provisions. If any litigation is validly instituted in connection with this agreement, the parties hereby consent to the exclusive personal jurisdiction of the courts in Utah and waive any objection as to venue or inconvenient forum.
- Waiver of Rights. Failure to enforce a right or provision under this agreement does not constitute a waiver of that right or provision.
- Severability. If any part of this agreement is declared unenforceable by a court, all other parts will remain enforceable.
- Survival. Sections 3, 9, 12, 13, 15, 16, 17, 18, 22, 23, 24, 25, 26, 27, 28, and 29 of these terms of service will survive termination of this agreement.
- Notices. (a) Jive shall deliver any notice to the Customer to the mailing address, fax number, or e-mail address stated in the sales quote. Except for billing disputes under section 9(c) or location updates under section 14(b), the Customer shall deliver any notice to Jive by fax to 385-309-0012, by e-mail to email@example.com, or by delivering it to 1275 West 1600 North, Suite 100, Orem, UT 84057. Either party may update its contact information for notices by delivering notice of the new contact information to the other party in accordance with this section 28(a).
(b) Notice will be deemed to have been duly given (1) upon delivery, if delivered personally to an officer of the receiving party; (2) upon verbal or written confirmation of receipt (not including automatically-generated responses), if delivered by fax or e-mail; (3) three business days after being mailed by registered or certified mail, postage prepaid; or (4) the next business day, if sent by commercial overnight delivery service; unless, with respect to (3) or (4), tracking information indicates delivery on a different date.
- Assignment. Jive may assign its rights and obligations under this agreement to any successor of substantially all of its assets. Otherwise, neither party may assign its rights or obligations under this agreement without the written consent of the other party.
- Effectiveness; Signature. This agreement will become effective when the Customer has signed the sales quote. The Customer may sign the sales quote by hand or by electronic means (for example, by using a commercial e-signature service or by typing the name of the Customer’s authorized representative into a web form).
- Definitions. In this agreement, the following definitions apply:
- “claim” means any loss, liability, damages, court costs, litigation costs, arbitration awards or fees, or other costs;
- “device” means a physical phone, soft phone, fax machine, analog telephone adapter, or other device used to make or receive calls using the Service;
- “Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents that party from complying with any of its obligations under this agreement, except that a Force Majeure Event will not include a strike or labor unrest that affects only one party, an increase in prices, or a change in law;
- “emergency dispatch center” means any local or national answering point for 911 calls;
- “Other Charges” means all charges for late fees, toll-free minutes, international long distance minutes, local loop access, additional off-network minutes, number porting, expedited number porting, directory or phone book access, taxes, fees, and other variable, one-time, or recurring charges except for Service Charges and Rental Charges;
- “Rental Charges” means the monthly charges for rental equipment on the Customer’s account;
- A party’s “representatives” are its officers, agents, employees, subsidiaries, and financial and legal advisers;
- “Service Charges” means fixed monthly charges for the Services on the Customer’s account; and
- “Services” means the hosted VoIP PBX service, IP service, local telephony service, DIDs, and other information or communications services offered by Jive during the term of this agreement.