By submitting to CallTower Inc. (“CallTower”) the Number Portability Authorization Form or providing a voice authorization for the port (“Port Authorization”) Customer a) authorizes CallTower to sign on Customer’s behalf and in Customer’s name forms of authority to Customer’s current vendor of telecommunications services (“Vendor”) to transfer Customer’s number into CallTower’s name; b) authorizes Customer’s current Vendor to transfer to CallTower Customer’s number; c) authorizes CallTower to disclose information in the Port Authorization to other Vendors in the event of dispute over porting to CallTower; and d) will remain responsible for all amounts owing to Customer’s current Vendor for any services it supplies to Customer.
If Customer has signed a Port Authorization to port a number to CallTower from Customer’s current Vendor, CallTower will use all reasonable efforts to port Customer’s number on or before the requested cut over date but will have no liability to Customer for any delays in porting.
Customer is responsible for any charges imposed by Customer’s current Vendor in relation to unsuccessful or rejected port requests due to insufficient or incorrect information on the Port Authorization form, concurrent competing porting requests in relation to Customer’s number or if Customer terminates the services with Customer’s current Vendor before CallTower transfers Customer’s number.
CallTower expressly disclaims any liability for termination fees or penalties imposed against Customer by any third party as a result of Customer’s decision to terminate any third party product or service (such as Local or Long Distance Connectivity).
Customer acknowledges that the emergency calling services (Enhanced 911 and Basic 911, described in further detail below) provided by CallTower differ from traditional 911 service because the CallTower emergency calling services rely on the continuous availability of commercial (or backup) power and the continuous availability of Customer’s broadband connection.
Enhanced 911 (“E911”). CallTower provides E911 service where available. Where E911 service is not yet supported by CallTower’s third-party E911 service provider, CallTower provides basic 911 services, as described below. E911 service is designed to provide both Automatic Number Identification (the calling party’s phone number) and Automatic Location Information (the physical address) to the emergency services operator at the Public Safety Answering Point (PSAP). Customer acknowledges that CallTower’s E911 service will only function properly if Customer inputs (and where applicable, updates) the physical location(s) (“Registered Location”) of all IP telephone equipment used with Customer’s service.
Basic 911. In U.S. locations where E911 services are not available through CallTower’s third-party E911 service provider, CallTower provides a Basic 911 service. The principal difference between Basic 911 services and E911 service is that the former relies on the caller to orally provide location information to the emergency services operator. Additional information regarding the differences between Basic 911 and E911 is available at http://www.nena.org. When 911 is dialed, the call is routed from the CallTower network to a third-party 911 service provider. The third-party service provider obtains location information from the caller and connects the call to the geographically appropriate PSAP. Customer acknowledges that in certain areas, the PSAP may not have Customer’s address and location information on hand and the caller may be required to verbally communicate the location and type of emergency to the 911 operator.
Customer Responsibilities in Connection with Emergency Calling Services
Customer shall take appropriate measures to advise its employees, visitors and other persons who may use Rental CPE to call 911, that emergency calling will not function properly in certain circumstances. Those circumstances include, but are not limited to, a loss of commercial power, a broadband connection outage, or the Customer’s failure to furnish or to update address information to CallTower or to CallTower’s third-party service provider(s).
Customer shall provide, via the interfaces and methods furnished by CallTower, (and where applicable, update) the Registered Location(s) of all phone(s) (including Soft Phones).
Soft Phone 911 Calling
The CallTower Soft Phone application can be used to access emergency calling services. The user will be prompted to provide CallTower with the physical location of the Soft Phone via the log-in screen. Depending on the caller’s location, and upon the current availability of E911 services from CallTower’s third-party provider(s), the call may be routed as either an E911 call or a Basic 911 call.
Limitation of Liability
Customer acknowledges that CallTower relies on Customer to provide and, where applicable, to update the Registered Location information for IP telephones (including Soft Phones) used in conjunction with CallTower Services. Customer further acknowledges that Customer-provided information regarding the Registered Location of Customer’s IP telephones is used by CallTower and its third-party service providers to update 911 call routing tables and to provide information regarding the calling party phone number and/or address to emergency service personnel. Accordingly, CallTower and its third party provider(s) disclaim any and all liability or responsibility in the event Customer-provided Registered Location information is inaccurate or out of date. Neither CallTower nor its officers or employees may be held liable for any claim, damage, or loss, and Customer hereby waives any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of CallTower. Customer agrees to indemnify and hold harmless CallTower and its third party providers from any claim or action arising out of misrouting of 911 calls, including but not limited to Customer’s failure to follow correct procedures for notifying CallTower of the locations of phones for 911 calling or incorrect information provided to CallTower in connection therewith.
The Services, as defined in the Service Agreement, have been designed to be reasonably secure from unauthorized usage and intrusions. However, the Services are not invulnerable to fraud or hacking. CallTower disclaims any express or implied warranty that the Services are technically immune from or prevent fraudulent intrusions into and/or unauthorized use of the Services (including its interconnection to long distance networks). Customer is hereby warned that fraudulent use of the Services, including but not limited to Direct Inward System Access (“DISA”), auto-attendant, voice mail, 800 and 900 services, and 10-10xxx (otherwise know as dial-around services) is possible. CallTower makes no express or implied warranty against such fraud or hacking, and will not be responsible for consequential, incidental or special costs, including, without limiting the generality of same, telephone line charges resulting from such activity.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by one party to the other under this Agreement, including, but not limited to, all submissions of ideas or concepts relating to the Services from Customer to CallTower and all Customer content. Confidential Information shall not include any information which: (i) is in the public domain or known in the industry at the time disclosed by the disclosing party, or enters the public domain or becomes known in the industry after disclosure other than by a breach of the receiving party’s obligations hereunder; (ii) is known by the receiving party prior to its receipt from the disclosing party; or (iii) is rightfully obtained by the receiving party from a third party without obligation of confidentiality.
Protection of Confidential Information
The receiving party shall: (i) not disclose the Confidential Information to any third party, except in the case of CallTower, as necessary for CallTower to deliver the Services; (ii) not use the Confidential Information except for purposes of performing under the Services Agreement; and (iii) take steps consistent with its protection of its own confidential and proprietary information (but in no event exercise less than reasonable care) to prevent unauthorized disclosure of the Confidential Information; provided, however, that either party may disclose confidential information if required by court order. The receiving party shall promptly notify the disclosing party of any actual or suspected loss or unauthorized use, disclosure of or access to the disclosing party’s Confidential Information of which it becomes aware and take all steps reasonably requested by the disclosing party to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.
The terms of the Services Agreement are the Confidential Information of both parties, which may be disclosed by a party, only to the extent reasonably necessary, to its legal and financial advisors and to subcontractors or other third parties that will be providing services in connection with the Services Agreement and who are under an obligation to protect the confidentiality of the Confidential Information
CallTower, its vendors and licensors, shall retain all right, title and interest in and to all intellectual property in CallTower’s work product, Confidential Information, or other proprietary information, the Services, CallTower’s products (including the CallTower software used to operate the Services), any creative content developed by CallTower or its contractors, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, comprising, embodied in, or practiced in connection with the Services provided by CallTower hereunder, excluding only Customer’s Confidential Information. Customer is expressly prohibited from sublicensing, selling, renting, or leasing the Services or CallTower software to any third party, or otherwise making available to third parties the Services or CallTower software. Customer agrees not to disassemble, decompile, reverse engineer or make any other attempt by any means to discover or obtain the source code for the Services or the CallTower software.
Customer further represents and warrants to CallTower that it will provide its own IT resources possessing the requisite knowledge of the Customer’s network, telecommunications infrastructure, and PC-client environment necessary to support the CallTower service implementation and to work with CallTower to provide onsite Customer-premise support and troubleshooting under the direction of CallTower as needed pre- and post-install. Customer acknowledges and agrees that it will be fully responsible for all compensation, fees, charges, and related costs, for said Customer’s resources and under no circumstances will CallTower be liable for the same.
CallTower warrants the CallTower Services will substantially conform to the applicable specification during the term of the applicable Service Order. CallTower’s sole obligation under this warranty and the sole and exclusive remedy of the Customer under this warranty is limited to reperformance of the applicable services. CallTower shall not be responsible for any defect or damage resulting from the mishandling, abuse, misuse, improper storage, accident, negligence, theft, vandalism, fire, water or other peril beyond the control of CallTower, or because of conditions outside of environmental specifications, including but not limited to wiring, electrical power, temperature, humidity or dust, or from causes other than normal use; or due to improper installation by someone other than CallTower, its employees or agents.
Limitations on CallTower’s Warranty.
CallTower’s limited warranty set forth above shall not apply to any non-conformities which are the result of Customer customizations, enhancements or modifications of the Services with third party software, hardware or firmware, including CPE, not provided by or authorized by CallTower or approved by CallTower in writing. Examples of limitations on CallTower’s warranty include, but are not limited to:
Hardware and services utilizing hardware not found on CallTower’s list of certified equipment.
CallTower services residing behind Customer-managed routers or switches, or behind a wireless network even if using an approved wireless device.
Third-party systems or software interfacing with or otherwise utilizing the CallTower network via an analog or Session Initiation Protocol (SIP) interface. Such interfaces represent CallTower’s point of demarcation. CallTower does not support all analog and SIP interface configurations and reserves the right to decline interfaces to third-party systems and software.
The Customer is fully responsible for its data network, including its firewalls. CallTower does not guarantee data bandwidth or throughput delivered by Tier 1 partners such as, but not limited to, Sprint, Level3, XO, and TW Telecom.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE , CALLTOWER DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CALLTOWER EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH CALLTOWER’S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. CALLTOWER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER.
LIMITATION OF LIABILITY.
CALLTOWER WILL NOT BE LIABLE FOR LOSSES OR DAMAGES RESULTING FROM THE LOSS, CORRUPTION OR ERASURE OF DATA, THE CONTENT OF THE INFORMATION PASSING THROUGH CALLTOWER’S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET, ANY INABILITY TO ACCESS THE INTERNET, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION, DUE TO CAUSES SUCH AS, BUT NOT LIMITED TO, CUSTOMER’S EQUIPMENT CAPABILITIES, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS. CALLTOWER SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR UNAUTHORIZED DISSEMINATION OF CUSTOMER CONTENT OR CUSTOMER DATA, WHETHER AS A RESULT OF DEFECT OF DATA SECURITY, MISAPPROPRIATION OR MISUSE OF PASSWORDS, OR ANY OTHER CAUSE WHATSOEVER, AND CUSTOMER ASSUMES ALL SUCH RISK OF UNAUTHORIZED DISSEMINATION OF INFORMATION STORED AND TRANSMITTED ON THE INTERNET. THIS LIMITATION SHALL NOT APPLY TO ANY LOSS OR DAMAGE CAUSED AS A RESULT OF CALLTOWER’S, INCLUDING ITS EMPLOYEES AND AGENTS, GROSSLY NEGLIGENT ACTS OR INTENTIONAL MISCONDUCT OR OMISSIONS.
LIMITATION OF DAMAGES.
IN NO EVENT WILL CALLTOWER BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, EVEN IF CALLTOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ANY SUCH DAMAGES ARE BASED ON A WARRANTY, CONTRACT, OR TORT ACTION OR CLAIM OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL CALLTOWER’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO CALLTOWER DURING THE SIX MONTH PERIOD PRIOR TO ANY EVENT GIVING RISE TO LIABILITY HEREUNDER.