Terms of Service

These Terms of Service for OptimumTel, LLC (“OptimumTel”) (this “Agreement”) is a legal agreement between you (“Customer” or “you”) and OptimumTel regarding the OptimumTel Services (“Services”). The Services include the systems (including hardware, software and equipment) by which OptimumTel provides its VoIP services to Customer and other OptimumTel users. Your use of the Services constitutes your agreement to the terms of this Agreement and OptimumTel’s Acceptable Use Policy, and you acknowledge that OptimumTel would not agree to provide the Services without that assent.

You may only receive the Services if you are a Service subscriber in good standing with a valid, authorized payment method on file with OptimumTel. You understand that you must obtain your own Internet connection in order to use the Services. We do not control your Internet access or the quality of your Internet connection. WE ARE NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY YOUR INTERNET CONNECTION OR THIRD PARTY PRODUCTS OR SERVICES.

Additional OptimumTel Services can be purchased by users you designate as administrators through the OptimumTel user interface or portal or by calling OptimumTel Customer Support. You hereby authorize those users with administrative privileges to (i) add these Services to your OptimumTel account and (ii) commit you to pay for these Services in accordance with the terms of your order and this Agreement. You further authorize OptimumTel to obtain payment of your then-current statement balance from you each month from your credit card account.

You may designate one or more users to be an account administrator (“Administrator”) with full administrative control of your account from the OptimumTel user interface or portal. Upon creation of your account, the individual assigned to be the Administrator is the individual who entered into an agreement with OptimumTel through our online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on your order form. The Administrator: (i) can make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on your account with respect to porting of your telephone numbers to a carrier other than OptimumTel. The Administrator may assign one or more additional administrators on the account and may re-assign “Administrator” status to another user. In the event that you wish to re-assign the Administrator designation on your account and the Administrator is unable to make the change, you must submit an email from the Administrator’s email address that is on file with OptimumTel or otherwise provide a written request via facsimile, on your letterhead and executed by an officer or owner of the company that you represent.

If you want OptimumTel to provide information on your account relating to a customer service record or call log details (other than through any available user interface), such request may be made by the Administrator, but information provided by OptimumTel will only be transmitted to the email address on file for the Administrator. The Administrator may designate one or more “Company Contacts” for the account. The Company Contact is the individual(s) who will receive all messages from OptimumTel concerning matters of general relevance to the account (notices of updates to the account, billing notices, maintenance alerts, etc.); such notices are typically provided through email. OptimumTel will initially assign the Administrator to be the Company Contact. A Company Contact may or may not be the Administrator for the account.

OptimumTel may adjust the components comprising a specific plan at any time. OptimumTel reserves the right, from time to time, to change the terms and modify service plans and features, provided that such changes are consistently applied in a manner and degree to similarly situated customers. OptimumTel will use commercially reasonable efforts to provide thirty days’ notice of such proposed changes. OptimumTel also reserves the right to increase pricing when there are government sourced or regulated changes applicable to VoIP providers, which increase the cost of VoIP services, and to include/exclude certain international calling destinations at any time based on its commercial or legal judgment. All pricing is exclusive of taxes, fees, and other government charges.

Service Pricing and Changes

Customer agrees to pay OptimumTel the rates, fees and other service charges agreed to in the parties’ Service Agreement, or as otherwise posted in your user portal, in accordance with the payment and billing terms more fully described below. In addition to all applicable usage-based (e.g., per-minute, per-call, per-text, per-number, and per-port charges), recurring, and one-time charges, Customer agrees to pay all applicable customs duties, sales, use, import or export, value added, excise, federal, state, local, public utility, universal service or other similar taxes and fees.

Unless the parties have a separately executed agreement to the contrary, you understand and agree that OptimumTel can prospectively change the rates and charges for its Services, and you agree to pay the then-applicable rates and charges for the Services you use in accordance with this Agreement. OptimumTel will publish applicable rates and rate changes via your portal, by emailing rate decks to your Company Contact email address, or through other commercially reasonable means. OptimumTel will use commercially reasonable means to provide you with prior notice of any rate changes, but Customer acknowledges and agrees that it is responsible to review the then-applicable rates before using any OptimumTel Service, and to pay all then-applicable fees and charges based on your usage of the Services.

OptimumTel reserves the right to change any of the other non-price terms of these Terms of Service, but only on a prospective basis after providing notice to you. OptimumTel will provide Customer thirty days’ advance notice of any such changes that would have a materially adverse effect on you, and post the revised Terms on its website. Changes will become effective on the next business day following the 30-day notice period and, unless Customer has objected to any changes by delivering written notice to OptimumTel, Customer agrees to be bound by any changes after such 30-day notice period. Customer is solely responsible for checking the OptimumTel website regularly and keeping its contact information current.

Billing and Payment

OptimumTel is principally a prepaid service. Customer hereby authorizes Service Provider to apply all applicable charges and fees incurred under this Agreement to the credit card Customer associates with this Agreement. Prepaid service requires the Customer’s account to have sufficient funds at all times. All Services will be subject to immediate suspension without further notice at any time the account does not have sufficient funds.

At the inception of Service, Customer agrees to deposit a fixed amount into its OptimumTel account to establish its initial prepaid value. Thereafter, as Customer’s use of the Services depletes its initial value through applicable Fees to the low-balance threshold (the default of which is $100.00), Customer agrees that its credit card may be charged to restore its account value above the low-balance threshold to a top-up value that Customer can define in the user interface.

Except for usage-based fees, all fees are due in advance on the first day of each billing period. Fees may include monthly recurring charges (“Service Fees”), and other non-recurring charges including, but not limited to, activation fees, porting fees, early termination fees, regulatory compliance fees (“Regulatory Recovery Fees”) and government-mandated pass through fees such as, but not limited to, Universal Service Fund fees (“USF”) and e911 fees (“Fees”). All usage-based charges, Fees and any other non-recurring charges are due and payable in arrears on the first day of each billing period following the month they were incurred. Customer agrees to pay for all equipment and set-up fees at the time Services are ordered. All payments, including payments paid in advance, are non-refundable.

Failure to pay in full will result in immediate account suspension and OptimumTel shall have no liability for such suspension. OptimumTel will assess an additional 1.5% per month (or the highest amount allowed by law, whichever is higher) late charge if your payment is more than thirty (30) days past due. Customer is responsible and liable for any and all fees, including reasonable attorneys’ and collection fees and costs, that OptimumTel may incur in its efforts to collect any outstanding balances. Customer also agrees to pay any outstanding balances if you cancel the Services. Customer further understands and agrees that OptimumTel and its agents may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact Customer in connection with this Agreement or OptimumTel’s Services, and that OptimumTel may contact Customer at any telephone number Customer provides to OptimumTel, even if that number is a cellular telephone number.

During any period of suspension for non-payment, Services will be unavailable until the account balance is paid in full. In the event Services are terminated for reason of non-payment or otherwise, Customer understands and agrees that no Services will be provided and its assigned telephone numbers will be reclaimed immediately and no longer available to Customer.

Contract Termination for Convenience

In addition to Service Provider’s right to suspend or terminate Service in accordance with the terms of this Agreement and Service Provider’s Acceptable Use Policy, either party may terminate this Agreement at any time without penalty provided that it sends written notice of such termination to other party at least 30 days prior to the effective date of such termination. Following the effective date of the termination, Customer may request a refund of its Prepaid Balance from Service Provider. Service Provider shall refund any balance held on behalf of Customer within 30 days of the termination, less any amounts due to Service Provider.

Rental Equipment

OptimumTel shall maintain exclusive ownership of all equipment delivered to and/or installed within or upon Customer’s location, including but not limited to, cables, wires, IP phones, power adapters, Session Border Controller appliance, wifi / bluetooth dongles and headsets. Customer (or any other person acting on behalf or under supervision of Customer) shall not open, tamper with, service, make any alterations to, or remove any Equipment from its point of initial installation. Any alteration, tampering, removal or the use of Equipment which causes the receipt of services without authorization is unlawful, prohibited, and may subject Customer to criminal and/or civil penalties. Customer must ship back all Equipment to OptimumTel immediately upon termination of services at Customer's expense. Failure to do so will result in an additional charge in accordance with OptimumTel's current schedule of charges, which amount shall be due immediately. Customer shall pay such charges regardless of circumstances, in the event that the Equipment is lost (through theft or otherwise), damaged, modified, or destroyed. OptimumTel may utilize any collateral form of payment Customer has provided to recover any and all equipment charges or other valid charges associated with Customer’s account.

Billing Calculations and Increments

OptimumTel calculates billable call duration from the time we receive the initial “INVITE” packet to the time we receive the final “BYE” packet. All usage is billed in the time increments identified in your user portal and in accordance with the type of traffic at issue, with usage measurement beginning upon the initiation of the first “INVITE” packet.

Automated Dialer Services

“Automated Dialer” traffic is any traffic originated with the aid of an automatic telephone dialing system as that term is defined in 47 U.S.C. Section 227(a) and implementing F.C.C. regulations and orders, calls originated with the aid of a predictive dialer, calls placed to telephone numbers dialed from a pre-established list of telephone numbers, calls that include any artificial or prerecorded voice message, and other machine-generated calls. The OptimumTel Network is able to route Automated Dialer traffic, but Automated Dialer services are disabled by default. Customer agrees to provide thirty (30) days notice to OptimumTel if it intends to use OptimumTel’s Automated Dialer services and provide a reasonable forecast of the volume of minutes of Automated Dialer services it expects to use in the first month of engaging that service. Failure to provide OptimumTel such notice may result in the immediate suspension of services.

Surcharges for Certain Call Patterns and Practices

If, in any monthly billing cycle, 40% of more of Customer’s Automated Dialer service calls, or 20% or more of Customer’s non-Automated Dialer service calls, are equal to or less than 6 seconds in length (each a “Short Duration Call”), then Customer agrees to pay OptimumTel a surcharge as prescribed in the Customer portal for each Short Duration Call that exceeds the applicable allowance threshold, in addition to all other charges and fees otherwise due for such Calls.

If, in any monthly billing cycle, 40% of more of Customer’s Automated Dialer service calls, or 25% or more of Customer’s non-Automated Dialer service calls, are “Zero Duration Calls,” then Customer agrees to pay OptimumTel a surcharge as prescribed in the Customer portal for each Zero Duration Call that exceeds the applicable allowance threshold, in addition to all other charges and fees otherwise due for such Calls. “Zero Duration Calls” are defined as calls that OptimumTel initiates after receiving Customer’s INVITE packet for the call, but which are of zero (0) seconds in duration, either because the end user has not answered, or has rejected or missed the call, or Customer has otherwise terminated the call before the end user could answer.

If, in any monthly billing cycle, 20% or more of Customer’s completed calls to OptimumTel’s Toll-Free Service are equal to or less than 60 seconds in length, or if more than 20% of Customer’s total Toll-Free Service call attempts do not complete, then Customer agrees to pay OptimumTel a surcharge as prescribed in the Customer portal for each such call that exceeds the applicable allowance threshold, in addition to all other charges and fees otherwise due for such calls.

Customer understand and agrees that it is solely responsible for assigning a valid, 10-digit caller identification number associated with each of its outbound calls placed in connection with its use of the Services. OptimumTel reserves the right, and Customer agrees to pay OptimumTel, a surcharge as prescribed in the Customer portal for each such outbound call made by Customer for which it has failed to assign a valid, 10-digit caller identification number.

Actual and Fraudulent Use

Customer shall be responsible for the costs incurred by all inbound and outbound call traffic regardless of their source, authorization or scope (“Actual Use”). Should Customer’s equipment be breached by an unauthorized third party, Customer shall be responsible for all costs, fees and other charges associated with the unauthorized traffic.

Customer agrees to bear the risk of loss and assume all liability arising from prohibited, unauthorized or fraudulent usage of Services under your OptimumTel account. Any such prohibited, unauthorized or fraudulent use by you is a material breach of the Agreement by Customer. Customer is solely responsible for securing all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (MAC) address of telephones used by you or your End Users. You acknowledge that placing telephones on a publicly accessible IP address or a publicly accessible network will subject you and your End Users to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent usage or calls occurred. If we discover fraudulent usage, you consent to OptimumTel taking actions it deems reasonably necessary (including blocking access to particular calling numbers or geographic areas), without notice to you, to prevent such usage from taking place. Customer acknowledges and agrees that it is solely responsible for all charges incurred in connection with the use of the Services associated with Customer’s account, whether authorized, unauthorized, fraudulent or otherwise, and that OptimumTel: (a) has no duty to investigate the authenticity of usage charged to Customer’s account, (b) has no duty to take action to prevent fraudulent usage from occurring in connection with your account, and (c) is not liable for any fraudulent usage billed to Customer’s account.

Suggestions and Custom Development

If Customer makes any suggestions regarding improvements, changes, or new features or functions relating to the OptimumTel Services (collectively, “Suggestions”), Customer irrevocably assigns to OptimumTel all right, title, and interest in and to the Suggestions.

If Customer chooses to engage OptimumTel to develop or create any improvements, changes, or new features or functions relating to the OptimumTel Services or how Customer uses or integrates the OptimumTel Services in Customer’s environment (“Custom Work Product”), Customer may do so in writing and, if OptimumTel accepts in writing, Customer agrees to pay OptimumTel for the time reasonably incurred in developing that Custom Work Product at OptimumTel’s hourly development rate of $250/hour. All right, title and interest in and to (a) the Custom Work Product and (b) all works, inventions and other subject matter incorporating, based on, or derived from any Custom Work Product, including all customizations, enhancements, improvements and other modifications thereof, in each case by whomsoever made and including all intellectual property rights therein, are and will remain with OptimumTel.

E911

The OptimumTel Network is able to deliver the address, name and phone number of your office to Emergency Services upon dialing 911. Enhanced 911, or E911, service is disabled by default and must be enabled by OptimumTel Support. Customer agrees to provide thirty (30) days notice to OptimumTel if it intends to use the OptimumTel Network for 911.

Emergency Services – 911 Dialing

1. Non-Availability of Traditional 911 or E911 Dialing Service.

At OptimumTel 911 dialing service operates differently than traditional 911 service. You agree to inform any business invitees, guests, and other third persons who may be present at the physical location where you utilize the Services of the non-availability of traditional 911 or E911 dialing from your OptimumTel Services and equipment. The physical location where you utilize the Service must be the actual physical street address where your calling equipment—and thus where you would expect emergency personnel to come if you called 911—not a P.O box, mail drop, or similar address.

2 .Description of 911-Type Dialing Capabilities – Activation Required.

OptimumTel offers 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that differs from traditional 911 services. When you dial 911 your call is routed from the OptimumTel network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. If you make changes to your 911 address using the OptimumTel online user interface, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information.

Calls dialed by handset extensions included in your account with OptimumTel will be routed from the OptimumTel’s network to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided, however, that your system administrator has previously activated that functionality. It is your sole responsibility to make any necessary or appropriate changes and to ensure that all business invitees, household residents, guests and other third persons who may be present at the physical location(s) where you utilize the Services are aware of this option. For any OptimumTel extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.

3. Service Outage.

You acknowledge and agree that (a) 911 dialing does not function in the event of a power failure or disruption. If an interruption in the power supply occurs, the Services and 911 dialing will not function until power is restored and you may have to reset or reconfigure equipment prior to utilizing the Services or 911 dialing; (b) service outages or suspension or termination of service by your broadband provider and/or ISP will prevent all Services, including 911 dialing, from functioning; (c) service outages due to suspension of your account as a result of billing issues will prevent all Services, including 911 dialing, from functioning; (d) if there is a service outage for any reason, such outage will prevent all Service, including 911 dialing; and (e) OptimumTel’s liability is limited for any Services outage and/or inability to dial 911 from your line or to access emergency service personnel.

4. Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911.

You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.

5. Automated Number Identification.

Technical limitations may make it impossible for the PSAP and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. OptimumTel’s system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.

6. Limitation of Liability and Indemnification Related to 911 Services.

OptimumTel relies on third parties for the forwarding of information underlying such routing. OptimumTel and its third party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. OptimumTel and its officers, directors or employees may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to OptimumTel’s 911 dialing. You further agree to defend, indemnify and hold harmless OptimumTel, its officers, directors, employees, affiliates, agents and its third party provider(s) from any and all third party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of, or resulting from (a) your failure to correctly activate 911 calling; (b) your provision to OptimumTel of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Services, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.

Number Porting

Customer agrees to the following:

1. During the term of this Agreement, Customer grants OptimumTel and its agents authority to initiate porting requests on its behalf as OptimumTel determines is reasonably necessary for the provision of the Services. OptimumTel may place Customer’s phone numbers with a new peer without further notice to Customer, provided however that OptimumTel will not place Customer’s phone numbers, or otherwise enter into any agreement, with any peer or other person which would directly result in Customer’s loss of its phone numbers.
2. OptimumTel, and its agents, are authorized to initiate changes to telephone service and for the purpose of obtaining service records, initiate or terminate ports, or to make changes to the ways in which Customer’s telephone numbers are routed to the extent necessary for the provision of the Services.
3. Customer agrees to release OptimumTel from damages of any kind, including, without limitation, direct, consequential and exemplary or punitive damages, in the event that either a terminating or servicing peer or a third party experiences technical difficulties that result in any or all of the following:
   1. Service Interruption
   2. Delays in porting
   3. Delays in service
   4. Lost Telephone Numbers

99.999% Uptime SLA

We understand that a move to the cloud can make businesses wary of not having control over their VoIP services and therefore, not being able to influence up-time and availability of services, so to instill confidence, we offer a 99.999% financially backed up-time guarantee. All customers who utilize OptimumTel for their organization can sleep soundly at night, safe in the knowledge that we have promised our servers will be available 99.999% of the time. In the case that we do not meet this promise, you will be financially reimbursed with a refund of fees. Our limit of any liability, in any case, for any reason, shall be limited to the refund of any current one month of service, for the instance or server that might be effected.

We define "Downtime" as "any period of time when users are unable to make or receive phone calls via all supported, all approved, and correctly configured OptimumTel installs and configurations which is calculated using Ping availability tools in minutes where applicable from server, operating system, application, network segments and infrastructure services managed by OptimumTel".

The 99.999% is calculated as a "Monthly up-time percentage", per individual server or per individual instance, and is calculated purely on an individual basis. If you have 6 servers with us and one misses the up-time target, only the server or instance affected will receive any fee credit, not all the servers or instances. Service credits, for a maximum total equal to one month of fees for any particular instance or server, are the Customer's sole and exclusive financial remedy for any violation of this SLA guarantee. Customers are not able to claim back "costs" incurred or any costs associated with any loss of business.

Exceptions

• Due to factors outside of our reasonable control - We are not responsible for losses of services due to environmental disaster, security threats, terrorist attacks, acts of war or wide scale geographical power or connectivity outages.
• Downtime or loss of data as resulted from customer's or third party providers' hardware or software, mis-configuration, use of hardware or configurations not supported by either 3CX (or other software packages), other VoIP software manufacturer, Operating System software manufacturer, or other provider, as well as issues with your local connectivity, local network, local firewall settings or blocking of traffic, etc.
• Resulted from actions or in-actions of customers or third parties - We do not manufacture operating system software, hosted VoIP software or firmware for any of the software that runs on our platforms. We are simply a hosted network connectivity provider, host service provider and SIP Trunking provider. Operating systems, VoIP platforms, network appliances, VoIP devices, firewalls and other hardware peripherals and appliances need to be updated from time to time and such updates and failures of such devices are mostly outside of out control, and such are not to be held to this SLA.
• During scheduled downtime - Scheduled Downtime as - i) Downtime within pre-established maintenance windows or (ii) Downtime during major version upgrades to Operating Systems or VoIP software platforms, or virtualization platforms.
• Upstream provider or storage failures. We will help move your instance for no charges to you. You will receive priority support in these cases for no fee.
• Data backups are the customers responsibility unless part of a service maintenance agreement. Please make regular off site backups. 3CX is designed to be able to upload backups to various cloud providers and off site storage accounts.

International Calling Coverage

Due to the nature of international tariffs, laws, and technical capacities of many international locations, not all international numbers are reachable from the OptimumTel network. This includes the following examples:

1. The called number is a part of a military conflict with another party
2. The called number is under economic sanctions by the United States or United Nations
3. The called number is in a location where the call completion rates expose OptimumTel to very high fraud risks
4. The called number is a satellite phone or cruise ship
5. The called number is using infrastructure not reachable from the United States
6. Other similar examples not listed here

Reverse Engineering and Use Restrictions

The OptimumTel infrastructure is a collection of Data Centers, Public Cloud Providers and other third party services and connections that collectively provides high availability for VoIP Services. This Infrastructure is highly confidential and proprietary to OptimumTel. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer agrees to not (i) reverse engineer, decompile, disassemble or otherwise attempt to derive techniques, processes, algorithms, know-how or other information from the Services or permit or induce another to attempt or perform the foregoing; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; or (iii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

Confidentiality

Apart from publicly available terms and conditions, OptimumTel and Customer agree that the rates, fees, and other charges offered, charged, and/or paid under this Agreement; OptimumTel’s network, software and service delivery platform; Customer’s usage under this Agreement; and any other non-public information and data exchanged between the parties under this Agreement are confidential and proprietary. The parties agree that such confidential information will not be disclosed, either directly or indirectly, by any means, to any third person(s) without the prior express written permission of the other party during the term of this Agreement or at any time during the 3-year period following the end of the term.

You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of OptimumTel’s confidential information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature, and further agree to solely use OptimumTel’s confidential information in connection with your use of OptimumTel’s Services and your performance of this Agreement.

In the event disclosure is mandated by court order, subpoena, a governmental authority, or under law, the party who receives such demand must give prompt written notice to the other party prior to any such disclosure and cooperate fully in obtaining any protective order or other form of confidentiality protection.

All information that OptimumTel collects about your use of OptimumTel’s website, its online user portal, and its Services are subject to our website Privacy Policy. By using OptimumTel’s website, its online user portal, and/or its Services, you consent to all actions taken by OptimumTel with respect to your information in compliance with the OptimumTel Privacy Policy.

Arbitration

The parties agree that OptimumTel may bring suit in court to enjoin infringement or other misuse of its intellectual property rights. With that sole exception, any controversies or disputes between the parties, whether arising out of or relating to this Agreement or otherwise, shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such the selection of an arbitrator, each party agrees to submit the selection of an arbitrator to the rules of the AAA. Arbitration shall take place in or near Vancouver, Washington. The rules of discovery under the State of Washington shall apply. The Arbitrator shall be bound by the laws of the State of Washington in her or his ruling. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be enforced in any competent court of law.

Waiver of Jury Trial

The parties understand and agree that they are waiving their right to a trial by jury in light of their agreement to arbitrate any disputes between them. But if, for any reason, a claim proceeds in court rather than in arbitration, the parties agree to waive any right to a jury trial.

Limitation of Liability

EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT OR FOR LIABILITY DIRECTLY CAUSED BY OPTIMUMTEL’S RECKLESS OR INTENTIONAL MISCONDUCT , OPTIMUMTEL WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, DATA, OR PATENT INFRINGEMENT OR VIOLATION OF ANY OTHER INTELLECTUAL PROPERTY RIGHT, EVEN IF CUSTOMER CLAIMS TO HOLD SUCH RIGHTS), EVEN IF OPTIMUMTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, BY ENTERING INTO THIS AGREEMENT YOU AGREE THAT OPTIMUMTEL WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) ANY CLAIM, DEMAND OR SUIT BY CUSTOMER ALLEGING THAT THE OPTIMUMTEL SERVICES, IN WHOLE OR IN PART, INFRINGE OR OTHERWISE VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT IN WHICH YOU CLAIM AN INTEREST (III) OPTIMUMTEL’S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (IV) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR DATA OR OTHER DATA.

OPTIMUMTEL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OPTIMUMTEL’S SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT OR OTHERWISE, WILL NOT EXCEED THE TOTAL OF THE AMOUNT YOU ACTUALLY PAID OPTIMUMTEL UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION, AND THAT THESE PROVISIONS REFLECT AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE PARTIES’ BARGAIN.

Warranty

EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN: OPTIMUMTEL DOES NOT WARRANT THE SERVICES HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES, AND OPTIMUMTEL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF: (1) MERCHANTABILITY, (2) FITNESS FOR PARTICULAR PURPOSE, (3) EFFORT TO ACHIEVE PURPOSE, (4) QUALITY, (5) ACCURACY, (6) NON-INFRINGEMENT, (7) TITLE, (8) MARKETABILITY, (9) PROFITABILITY, (10) SUITABILITY, AND OR (11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE OPTIMUMTEL SERVICES AND ANY MATERIALS, SOFTWARE, OR EQUIPMENT ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnification

YOU HEREBY AGREE TO HOLD HARMLESS, INDEMNIFY AND DEFEND OPTIMUMTEL, ITS OFFICERS, DIRECTORS, AND EMPLOYEES, FROM AND AGAINST ANY CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS, FINES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR RELATING TO ANY THIRD-PARTY CLAIM RELATING TO YOUR USE OF THE OPTIMUMTEL SERVICES OR YOUR BREACH OF THIS AGREEMENT, INCLUDING ANY CLAIM THAT YOU HAVE VIOLATED ANY TERM OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING SECTION (“COMPLIANCE WITH LAWS”).

Compliance with Laws and Prohibited Use

You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing. OptimumTel may provide you with guidelines regarding compliance with applicable regulation(s); however, you are solely responsible for ensuring that your use of the Services is in compliance with such regulations. You may only use the Services for your own use. You may not use the Services in any way to provide, or as part of, any commercial service or application or in any way interfere with the users, services or equipment of the network. In addition to any other remedies available in equity or law to OptimumTel, failure to comply with any of the terms and conditions in this Section shall result in immediate termination of the Services.

Any use of the Services or any other action in violation of this Section or that causes a disruption in the OptimumTel network integrity, or in OptimumTel’s determination threatens or compromises the security of OptimumTel, its vendors, its other customers or the Services whether directly or indirectly, is strictly prohibited and permits OptimumTel to suspend or terminate the Services without prior notice at the sole discretion of OptimumTel and further permits OptimumTel to disclose any information, including Customer’s confidential information, to necessary authorities or third parties. OptimumTel shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any messages or content that it reasonably believes contains inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry. Any use found to be inconsistent with the restrictions of this Section may result in termination of the Services without prejudice to any other OptimumTel rights or remedies.

Governing Law

This Agreement shall be construed in accordance with the laws of the State of Pennsylvania, without regard to its conflict-of-laws provision.

Correspondence

During the course of the Agreement, Customer may make service requests of OptimumTel via e-mail, ticket submission, or phone call. The parties further agree that Customer may make certain changes to the Services it subscribes to via OptimumTel’s user interface, including the addition or deletion of users and the addition or deletion of telephone numbers.

Entire Agreement

This Agreement, together with the parties’ Service Agreement and any attachments and addenda thereto, contains the entire agreement between the parties, and there are no other oral promises or conditions with respect to the parties. This agreement supersedes any other written or oral agreements between the parties.

Severability

If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable.

Waiver

The failure of either party to enforce a provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to enforce those provisions in the future.

Survivability

All Provisions that logically ought to survive termination of this Agreement shall survive, including, without limitation, the sections relating to confidentiality, arbitration, indemnification, and limitations of liability.