Terms Of Service
(All services except for KloudLINQ & Internet)
Important — Read Carefully
These Terms of Service constitute the agreement (“Agreement”) between KloudTel (“we,” “us” or “KloudTel”) and the user (“you”, “user”, “customer”) of KloudTel’s services and any related products or services (“Service”). You may only receive the Services if you are a Service subscriber in good standing with a valid, authorized payment method on file with KloudTel. You understand that you must obtain your own internet connection in order to use the Services. We do not control your internet provider or the quality of your 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 NOR WILL WE CONTACT ANY OF THESE PROVIDERS ON YOUR BEHALF. No waiver or amendment to this agreement shall be binding on KloudTel unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of KloudTel. BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY ITS TERMS AND CONDITIONS.
- VoIP 9-1-1 Service
- Non-Availability of Traditional 911 or E911 Dialing Service.
KloudTel provides VoIP 9-1-1 service that is similar to traditional 911 service but has some important differences and limitations when compared with enhanced 911 service (E911) available in most locations in conjunction with traditional telephone service. With both traditional 911 and E911 service, your call is sent directly to the nearest emergency response centre. In addition, with E911 service, your call back number and address are visible to the emergency response centre call-taker. With KloudTel’s VoIP 9-1-1 service, your call is sent to a national emergency call centre. The call centre operator will request or confirm your location information and then transfer your 911 call to the emergency response centre nearest your location. You should be prepared to provide or confirm your address and call-back number with the operator. If you use a SoftPhone, your 911 calls will be routed to the national emergency response centre, however, emergency personnel do not receive your phone number or physical location information. Do not hang up unless told directly to do so and if disconnected, you should dial 911 again.
- Registration of Physical Location Required.
You should ensure your location information, when registered with KloudTel, is kept current at all times. All location changes must be entered into the KloudTel Hosted PBX at http://portal.kloudtel.com or sent to [email protected] In case you are not able to speak during the 911 call, the call taker would dispatch emergency response vehicles to your last registered address. You need to update your VoIP 9-1-1 information if you move your device to a different location and/or if you add a new line or extension to your account. Regardless of what address you register for a SoftPhone or other remote extension medium, the national emergency response centre does not receive your phone number or physical location information when you place a 911 call. Your VoIP 9-1-1 service is activated when you subscribe to KloudTel service.
- Service Outages.
VoIP 9-1-1 service will not function in the event of a power or broadband outage or if your broadband, ISP or KloudTel service is suspended or disconnected. Following a power failure or disruption, you may need to reset or reconfigure your Device prior to utilizing the service, including VoIP 9-1-1.
- Re-Registration Required if You Change Your Number or Add or Port New Numbers.
You must successfully register your location of use for each changed, newly added or newly ported number in order for VoIP 9-1-1 to function as intended. All changes must be sent to . Regardless of what address you register for a SoftPhone or other remote extension medium, the national emergency response centre does not receive your phone number or physical location information when you place a 911 call.
- Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls.
There may be a greater possibility of network congestion and/or reduced speed in the routing of a VoIP 9-1-1 call made utilizing the Service as compared to traditional 911 Dialing over traditional public telephone networks.
- Conveying Limitations to others.
You should inform any employees, household members, guests and other persons who may be present at the physical location where you utilize the KloudTel service, of the important differences in and limitations of VoIP 9-1-1 service as compared with E911 service, as set out above.
- Disclaimer of Liability and Indemnification.
We do not have any control over whether, or the manner in which, calls using our VoIP 9-1-1 service are answered or addressed by any local emergency response centre. We disclaim all responsibility for the conduct of local emergency response centres and the national emergency calling centre. We rely on third parties to assist us in routing VoIP 9-1-1 calls to local emergency response centres and to a national emergency calling centre. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither KloudTel nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our VoIP 9-1-1 service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless KloudTel, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including VoIP 9-1-1, incorrectly routed 911 calls, and/or the inability of any user of the Service to be able to use VoIP 9-1-1 or access emergency service personnel.
- Alternate 911 Arrangements.
If you are not comfortable with the limitations of the VoIP 9-1-1 service, you should consider having an alternate means of accessing traditional 911 or E911 services or disconnecting the Service.
- VoIP 9-1-1 Service Acknowledgement.
You acknowledge that KloudTel’s equipment and services do not support 911 emergency dialing or other functions in the same way that traditional wireline 911 services work. The differences are provided above and the user agrees to notify any potential user of the services, who may place calls using the service, of the 911 limitations.
- Non-Availability of Traditional 911 or E911 Dialing Service.
- Service & Billing
- Service Term.
Services will begin the first day the service is operational and are provided on a monthly basis. Service is renewed automatically unless you give us notice of cancellation in accordance with the requirements of Section 3 below. If you attempt to disconnect Service prior to the end of the applicable Service Term, you will be responsible for all charges relating to the then-current monthly term and remaining monthly terms, including unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You will also be responsible for charges for the following monthly term in the event that you do not provide the requisite disconnect notice as described in Section 3 below.
- Use of Service.
Service is provided to you as the user, and you shall not resell or transfer the Service to another party without our prior written consent. Any use of the Services or any other action that causes a disruption in the network integrity of KloudTel services or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. You are prohibited from using the Service for auto-dialling, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service is, or at any time was, inconsistent with normal usage patterns.
- Fair Use Policy.
We reserve the right to review usage of our unlimited calling offer to ensure customers are not abusing such plans. You agree to use our Service Plans for normal voice or fax calls and will not employ methods or devices to take advantage of them by using the voice or fax services excessively or for means not intended by KloudTel. We may terminate service immediately if, in its sole discretion, you are abusing the unlimited calling offer. IF YOUR USAGE EXCEEDS MORE THAN THREE (3) TIMES THE AVERAGE LEVEL OF USAGE OF KloudTel’S CUSTOMERS, YOU WILL BE IN VIOLATION OF KloudTel’S FAIR USE POLICY. For purposes of this policy and your plan, “unlimited usage” means the combined number of inbound and outbound voice minutes and faxing, but excluding any correspondence sent to you directly by KloudTel, as determined by us in our sole discretion. We reserve the right to at anytime enforce this policy in accordance with its terms. IN NO EVENT SHALL YOU EXCEED THE COMBINED USAGE OF 1500 FAX PAGES PER FAX PATH (Line) IN ANY THIRTY (30) DAY PERIOD. IN NO EVENT SHALL YOU EXCEED THE COMBINED USAGE OF 500 HOSTED FAX PAGES PER HOSTED FAX DID (Number) IN ANY THIRTY (30) DAY PERIOD. IN NO EVENT SHALL YOU EXCEED THE COMBINED VOICE USAGE OF 1,500 MINUTES PER VOICE PATH (Line) IN ANY THIRTY (30) DAY PERIOD. In the event you have violated this policy, you will automatically be charged per page for fax and per minute for voice of use in excess of the fair usage limit AT THE THEN-CURRENT RATE ESTABLISHED BY KloudTel, which is currently $0.10 per page for fax and $0.039 per minute for voice and your service will be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS.
- Prohibited Uses: Unlawful Uses and Inappropriate Conduct.
You shall use the Service only for lawful purposes. You shall not use the Service in any way that is improper or inappropriate, including in a manner that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of any others privacy, or any similar behavior. In addition, you shall not use the Service to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; use the Service to violate any law, rule or regulation; violate any third party’s intellectual property or personal rights; or exceed your permitted access to the Service. Subject to applicable law, we may, but are under no obligation to, monitor usage of the Service for violations of this Agreement. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the Service, or KloudTel, its affiliates, directors, officers, agents and employees from harm. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service for an unlawful purpose or in ways mentioned above. In the event of such disconnection you will be responsible for all fees and charges due under this Agreement, including those referred to in Section 2.1, plus a disconnection fee, if applicable, all of which will be immediately due and payable. If we believe that you have used the Service for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, KloudTel will provide customer and call detail information in response to lawful government requests, subpoenas, court orders and to protect its rights and property, and in response to law enforcement requests where the failure to disclose the information may lead to imminent harm to the customer or others. Furthermore, KloudTel reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
When the Service is activated, you must provide us with a valid email address and a payment method that we accept. Invoices will be sent to you via your email address on file with us. We reserve the right to stop accepting your payment method or your payments. If your payment method expires, you close your account, your billing address changes, or your payment method is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, fees, applicable taxes and surcharges for each Service Term in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your payment method, including but not limited to: Service plan fees; VoIP 9-1-1 fees; advanced feature charges; enhancement charges and taxes; disconnection fees; and shipping and handling charges. You agree to pay KloudTel the recurring monthly Service and usage charges, if applicable, for your use of the Services plus any applicable taxes as set forth in Section 2.9 below. Hardware purchases will be charged immediately to your payment method and will also include shipping & handling plus any applicable taxes as set forth in Section 2.9 below. Activation fees are paid at the time of your initial Service request. The amount of such fees and charges shall either be notified to you by correspondence or published on our website and may change from time to time. A late payment charge applies when payment has not been received thirty (30) days following the Invoice being issued. This charge will apply on the unpaid portion of the account and is a monthly compound rate of 2% (or the highest amount allowed by law, whichever is lower). KloudTel bills usage charges in 6 second increments that are rounded up to the next increment unless otherwise set forth in the rate schedules found on our website.
- Invoice Discrepancies.
You must notify us in writing within fifteen (15) days after receiving your statement from your credit card issuer if you dispute any KloudTel charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be directed to KloudTel Billing at [email protected]
- Payment and Collection.
Your subscription to the Service authorizes us to collect from your payment method. This authorization will remain valid until thirty (30) days after we receive written notice from you terminating our authority to charge your payment method, whereupon we will charge you for the disconnection fee, if applicable, and any other outstanding charges and disconnect your Service. We may disconnect your Service at any time in our sole and absolute discretion if any charge to your payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method or in case of any other non-payment of account charges. If your Service is disconnected, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and legal fees and expenses.
- Disconnection; Discontinuance of Service.
We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service without a stated reason, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final Service Term charges. If your Service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for all charges through the end of the current Service Term, including un-billed charges, plus the disconnection fee, if applicable, all of which will immediately be due and payable. At our sole and absolute discretion we may charge a disconnection fee of $49.99 per voice line if your Service is disconnected subject to applicable federal, provincial and local laws. KloudTel will pursue collection for unpaid amounts on disconnected accounts and may report to and exchange credit and personal information with any credit/consumer reporting agency and financial institution relating to this Agreement.
Federal, provincial, municipal, local or other governments may assess taxes, surcharges and/or fees on your use of KloudTel service. These charges may be a flat fee or a percentage of your KloudTel charges and may change from time to time without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for all applicable federal, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service and will be billed to your payment method as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
- Service Distinctions.
The Service is not a traditional telecommunications service and we provide it on a best efforts basis. Things beyond our control may affect the Service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service. Other things may affect Service, such as maintenance. KloudTel will act in good faith with a view to minimizing disruptions to your use of and access to Service. Important distinctions exist between a traditional telecommunications service and our Service, and our Service is subject to different regulatory treatment than a traditional telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
- No 0+ or Operator Assisted Calling; May Not Support x11 Calling.
Our service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls. Our service may not support 311, 511, and other x11 services in one or more service areas. Our service does support specified dialing such as 911, which are provided for elsewhere in these Terms of Service.
- Incompatibility with Other Equipment & Services.
(a) Home Security Systems. The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any security system with the Service. (b) Certain Modems, Routers and Other Services. You acknowledge that the Service may be determined to be incompatible with other services. You further acknowledge that some providers of internet services may provide modems or routers that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all internet providers and expressly disclaim any express or implied warranties or conditions regarding the compatibility of the Service with any particular service.
- Service Term.
- Service Termination.
You may request cancellation of your Service at any time by providing us with a notice of your intent to cancel at least thirty (30) days in advance of your agreements end date by emailing KloudTel Billing at [email protected] As a result of regulatory requirements, Services can only be terminated by email, so that we may have written confirmation. WE WILL NOT ACCEPT CANCELLATIONS VIA TELEPHONE, FAX OR OTHER METHODS. FAILURE TO CANCEL SERVICES VIA EMAIL IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE FEES. You acknowledge that the cancellation will be effective thirty (30) days after your email notification to us. We will reply with an email confirmation of your termination of Services. If you do not receive such confirmation within thirty (30) days, you must resend another email to with the original email attached for date verification. You will not receive any refund or partial refund or any credits for any charges already billed to your account. If you do not notify us within the minimum thirty (30) days from your Service Term completion, you will be charged for the subsequent billing cycle including any additional charges. You understand and agree that cancellation of your subscription is your sole right and remedy with respect to any dispute with KloudTel.
- Number Transfer or “Port”.
You may be able to take, or “port,” your current number to another service provider. If you ask your new service provider to port a number from us, and we receive your request from the new service provider, we will terminate our service for that number shortly after notification to KloudTel by the relevant carrier(s) of the successful completion of the port. Once your service is terminated and the port is completed, you will remain responsible for all charges and fees through the end of that billing cycle, including any applicable disconnection fees. If a port is unsuccessful for any reason, your service and your agreement with us will not terminate, you will remain a KloudTel customer, and you will continue to be responsible for all charges and fees associated with your Service.
- Money Back Guarantee; Limitations and Conditions.
We offer a thirty (30) day money back guarantee (“Money Back Guarantee”) from the date your Service is activated. We will refund or credit the activation fee and the Service charge for the first Service Term provided that:
The Money Back Guarantee has not previously been used before by a similar company or person;
You have not exceeded usage from section 2.3 above;
Service is cancelled within the first thirty (30) days following the activation of the Service and activation occurs when you place your order for service;
KloudTel may not be able to refund all applicable taxes. You will be responsible for any usage charges made on the account. We reserve the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.
- Service Termination.
- Limitation of Liability; Indemnification; Warranties; Privacy
- Limitation of Liability.
We will not be liable for any delay or failure to provide the Service, including VoIP 9-1-1, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
an act or omission of an underlying carrier, service provider, vendor or other third party;
equipment, network or facility failure;
equipment, network or facility upgrade or modification;
force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
equipment, network or facility shortage;
equipment or facility relocation;
service, equipment, network or facility failure caused by the loss of power to you;
outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
any act or omission by you or any person using the Service provided to you; or
any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, VoIP 9-1-1) to be connected or completed, or forwarded. Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.
- Disclaimer of Liability for Damages.
IN NO EVENT WILL KloudTel, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE VOIP 9-1-1 SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY OR CONDITION, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, STRICT LIABILITY, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. IN THE EVENT A COURT AWARDS DIRECT DAMAGES DESPITE THE FOREGOING, SUCH DAMAGES SHALL NOT EXCEED THE LESSER OF $250.00 OR THE AMOUNT YOU PAID TO KloudTel WITHIN THE LAST SIX MONTHS. BECAUSE SOME STATES/PROVINCES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. KloudTel DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH KloudTel.
- Indemnification and Survival.
You shall defend, indemnify, and hold harmless KloudTel, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party or user of the Service, relating to this Agreement or the Services, including, without limitation, VoIP 9-1-1. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
- No Warranties on Service.
To the extent permitted by applicable law, WE MAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, REASONABLY ACCEPTABLE QUALITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY OR CONDITION THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE PROVIDE NO WARRANTY OR CONDITION THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER KloudTel NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF KloudTel’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY KloudTel OR KloudTel’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OR CONDITION OF ANY KIND.
- No Third Party Beneficiaries.
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
You will be liable for any and all liability that may arise out of the content transmitted by or to you or any person, whether authorized or unauthorized, using your Service (each such person, a “User”). You shall ensure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.
- Limitation of Liability.
- KloudTel Shipping & Return Policy
At KloudTel we strive for 100% customer satisfaction. Everything you see on our website is generally in-stock unless otherwise noted. Orders normally ship the same business day you place them provided they are completed before 12:00pm EST. Orders placed on weekends and holidays are shipped the next available business day. KloudTel utilizes warehouses located across the USA & Canada. As such we are able to ship your order from a deep inventory position and get you the product as soon as possible. The shipment fee is calculated based upon a combination of the shipment method, where the product is being shipped to, and the package weight and dimensions. All returns must be initiated within 15 days from when the equipment has been received. In order to process a return, a RMA number must be obtained by emailing and including your order number, your name, the product type, and a reason for the return. Once an RMA has been issued, KloudTel must receive the returned equipment within 15 days. Customers are responsible for all return shipping costs, including defective merchandise. Packages that arrive COD or Postage Due will be refused. All products must be received in new, resalable condition. The condition of the product will be determined at our discretion. A 20% restocking fee will be charged for all non-defective returns. Any equipment refused by the customer will be restocked with a 20% fee deducted from the refund. In addition, any postage due or brokerage fees associated with recovering a refused package will be deducted from the refund. Shipping charges are not refundable under ANY circumstances once an order has shipped. If an item is defective or fails within the first 15 days then please contact us at for an RMA number and we will replace the item for you. Replacement of items that failed but during the first 15 days will be shipped out using our Ground Shipping method. If a product fails after the first 15 days then please contact the manufacturer directly. If you are not sure who the manufacturer is, are not sure how to contact them, or are having problems getting them to replace your product while it is covered under the Manufacturer’s Warranty (if any) then please email us at and we will do our best to assist you. All returned items should be packed in the same manner as they were originally shipped. Products returned without the original packaging will be refused. You will need to write the RMA number on the shipping label. We strongly suggest that you purchase Insurance and Signature Confirmation as we are not responsible for any packages lost or damaged during the return trip. In the event that a package is listed as Delivered but cannot be found, only the signature of a KloudTel representative will suffice as proof of delivery to our warehouse. Refunds will be charged back to your credit card after our warehouse receives, inspects, and processes your return. Bear in mind, your credit card company determines when the issued credit will be reflected in your statement. Please allow one to two billing cycles.
- KloudTel Shipping & Return Policy
- Governing Law.
The Agreement and the relationship between you and us is governed by the laws of the State of Ohio and the federal laws of The United States of America applicable therein 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 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the County of Cuyahoga, State of Ohio, United States of America and waive any objection as to venue or inconvenient forum.
- Mandatory Arbitration and No Jury Trial.
Except to the extent contrary to applicable law, any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by a United States arbitration organization of our choosing. The arbitration shall take place in Cleveland, Ohio and shall be conducted in English. The arbitrator’s decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED, except to the extent such a limitation is prohibited by applicable law. All claims shall be arbitrated individually. Except to the extent contrary to applicable law, you shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN CUYAHOGA COUNTY, OHIO, UNITED STATES OF AMERICA.
- No Waiver of Rights.
Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
- Entire Agreement.
This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and KloudTel and govern the use of the Service by you, members of your household, guests and employees. This Agreement supersedes any prior agreements between you and KloudTel and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
- French & Spanish Language.
The parties confirm that it is their express wish that this agreement, as well as any other documents relating to this agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement. Las partes confirman que se trata de expresar su deseo de que este acuerdo, así como cualesquiera otros documentos relativos a este acuerdo, incluidos los anuncios, los horarios y autorizaciones, han sido y serán elaborados en el idioma Inglés solamente.
Where applicable, either party may immediately cancel the affected Agreement or Service Schedule(s) without penalty in the event of any regulatory or legislative change or government policy that renders the Agreement or Service Schedule(s) unenforceable or illegal. You will remain obligated to pay any amounts that have accrued at the time of such cancellation. In the event that the Federal Communications Commission (F.C.C.) or Canadian Radio-Television Commission (C.R.T.C.) chooses to forbear or deregulate or substantially change its tariffs, KloudTel will have the option, at its sole discretion, to adjust the amounts under the Agreement or Service Schedule(s) accordingly.
- Governing Law.
Terms Of Service
(KloudLINQ & Internet)
- PURCHASE OF SERVICES
These Terms of Service constitute the agreement (“Agreement”) between KloudTel Communications Inc. (“KloudTel”) and
the customer (the “Customer”) (each a “Party”) applies to each communications service or related product or service
(each a “Service”) specified in one or more Service Orders attached to this Agreement, which KloudTel agrees to sell to Customer and Customer agrees to purchase from KloudTel pursuant to this Agreement. Terms and conditions specific to KloudTel’s various Services are set out in Schedule “A”.
- APPLIES TO OTHER SERVICE ORDERS
Even where a Service Order does not refer to this Agreement, any Service Order for one or more Services provided by
KloudTel to Customer during the Initial Term or during any Renewal Term, as defined below, will be deemed to have been issued pursuant to this Agreement unless KloudTel, represented by a director or officer, expressly agrees in writing to the contrary.
- SUPPLEMENTARY AGREEMENTS
This Agreement does not supersede any other service or maintenance agreement that may be executed between the Parties, in writing, for additional Customer requirements (“Supplementary Agreement”), such as the installation, maintenance or warranty of Customer equipment (including data switches, routers, or endpoints as defined in such separate agreement).
- FUTURE CHANGES-NOTICES
- Future changes to terms and conditions by notice on www.KloudTel.com.KloudTel may, from time to time, and at its sole discretion, modify the terms and conditions of the Service and this Agreement. Notices will be considered given, effective and binding on the date posted on www.KloudTel.com, at which time the modified Agreement will immediately become binding and supersede any previously agreed-to terms and conditions. No further notice by KloudTel is required upon Customer’s continued use of the Service.
- Other notices and registrations in writing. Any notices or registrations by either Party to the other shall be in writing and either mailed by certified or registered mail, sent by express courier or hand delivered to the addresses identified in this Agreement, or such other address that a party indicates in writing.
- PURCHASE OF SERVICES
- TERM AND PAYMENT
- INITIAL TERM
The term of a Service Order executed under this Agreement shall start on the date Customer executes the Service Order (“Effective Date”). The term shall continue thereafter for the Initial Term specified in the aforementioned Service Order or, if the Service Order specifies no Initial Term, for an Initial Term ending one (1) year after the Effective Date.
- AUTOMATIC RENEWALS
Following the expiration of the Initial Term for a Service Order, this Agreement shall, as it applies to that Service Order, be automatically renewed for successive one (1) year terms (each a “Renewal Term”), unless terminated by written notice from one Party to the other at least thirty (30) days prior to the expiration of the Initial Term or a Renewal Term. KloudTel may increase
fees for any Renewal Term of this agreement, upon notice to Customer at least 60 days prior to the end of the current term.
- Agreement to pay. Customer is responsible for and agrees to pay KloudTel for every Service at the rates specified on the relevant Service Order or on an Addendum to such ServiceOrder, or on any other amendment thereto executed by the Parties, together with all applicable taxes and other government fees and charges. The rates for any Service the Parties agree to add after the Effective Date shall be at KloudTel’s list prices in effect at that time, unless otherwise agreed by KloudTel.
- Invoices. KloudTel will provide Customer with monthly invoices. Monthly recurring charges shall be billed in advance of the month to which such charges apply, unless otherwise specified.
- Due dates. All charges are due and payable within ten (10) calendar days of the date of the invoice. Charges for non-recurring Services may be invoiced when such Services are provided.
- Late payments-cost of collection. Overdue charges shall incur a charge at the rate of one and one-half percent (1.5%) per month on the outstanding amount from the date due until paid. In addition, Customer shall be liable to KloudTel for any costs incurred in enforcing any payment or other Customer obligation under this Agreement including, without limitation, collection costs and legal fees and expenses.
- Advance payment. In the event Customer fails to pay any invoice on or before its due date, KloudTel may,at its sole discretion, require Customer to pay KloudTel an advance security deposit (“advance payment”) in the form of a cashier’s or certified cheque, to provide a letter of credit, or to provide a guarantee satisfactory to KloudTel. Any advance payments may be applied against Customer’s past due amounts at KloudTel’s sole discretion.
- Disputes. If Customer has bona fide dispute with any amount on an invoice (“Disputed Amount”) (not to exceed twenty percent (20%) of Customer’s invoice), Customer must pay all amounts not in dispute, and provide KloudTel with a written request for a billing adjustment together with all supporting documentation within ninety (90) days of receiving the invoice on which the Disputed Amount appears. If KloudTel does not receive this information within this ninety (90) day period, Customer’s right to a billing adjustment shall be waived.
- Customer substitution.
Upon thirty (30) written days’ notice to KloudTel, Customer may terminate portions of any Service and substitute one or more other services available from KloudTel without incurring a termination charge, provided that the total monthly recurring charges for the substituted Services are equal to or higher than the terminated Services.
- Customer election. If Customer elects to terminate any or all of KloudTel’s Services, without substituting other services available from KloudTel such that the total monthly recurring charges for the substituted Services are equal to or higher than the terminated Services (“Election”), then
- if Customer gives notice of an Election to KloudTel in respect of a Service after a Service Order has been signed by Customer but before KloudTel has provisioned that Service, Customer will pay in a single payment a termination charge equal to all costs reasonably incurred by KloudTel, to be determined by KloudTel at its sole discretion, for installing, provisioning and terminating third-party services that relates to the terminated Service; and
- if Customer gives notice of an Election to KloudTel in respect of a Service after that Service has been provisioned, the Company will pay in a single payment to KloudTel a termination charge equal to the monthly recurring fees for that Service multiplied by the number of months remaining in the Initial Term or Renewal Term in effect for that Service.
- Commercial non-feasibility or Customer Default. KloudTel shall have the right, which it may exercise at its sole discretion and without any liability, to disable, suspend or terminate this Agreement as it applies to any Service in the following circumstances:
- in the event KloudTel determines that the Services are no longer commercially feasible, provided that KloudTel shall provide ninety (90) days written notice to Customer prior to such termination, or
- in the event of a “Customer Default”, which shall occur if:
- Customer fails to make and payment under this Agreement when due and such failure continues uncured for a period of five (5) days after KloudTel gives Customer notice of such failure to pay;
- Customer denies KloudTel reasonable access to Customer’s network or equipment over which Services are being delivered, including access to Customer premises, to examine, maintain and/or effect corrective actions deemed necessary by KloudTel to fulfill KloudTel obligations as enumerated herein;
- Customer uses the Services for any unlawful purpose or in any unlawful manner, or violates the Acceptable Use Policy set out at paragraph 3 of this Agreement;
- Customer makes use of Proprietary Material, as that term is set out at paragraph 3.7 of this Agreement, in a manner which violates the terms of that paragraph.
- Network harm. If a Customer Default under sub-clause c) of this Agreement has a material adverse effect on KloudTel’s network or on the network of a supplier of KloudTel, KloudTel shall have the right, at its sole discretion and without any liability, to immediately suspend or terminate any or all Services being provided to Customer without notice.
- Customer substitution.
- EFFECT OF TERMINATION
- Effect of ordinary termination. The termination or expiration of this Agreement shall not relieve Customer of its obligations under this Agreement, or under any Service Order. These obligations include, without limitation, Customer’s obligation to make payments for all unpaid and outstanding amounts due KloudTel that have been accrued as of the date of termination or expiration of this Agreement.
- Effect of Customer Default. In the event the Agreement is terminated as the result of a Customer Default under clause ii of this Agreement,
- Customer shall remain responsible both for the monthly fees for the balance of the Initial Term or Renewal Term applicable to the terminated Service, and for any associated unpaid usage charges; and
- Customer shall be liable for all charges reasonably incurred by KloudTel for unscheduled termination of Customer’s Services, including but not limited to termination costs payable by KloudTel to a supplier for deactivation of carrier network access circuits, and reasonable expenses (including any legal and collection agency fees) incurred in the enforcement of KloudTel’s rights.
- Survival. Customer’s obligation to make any payment to KloudTel shall survive the termination or expiration of this Agreement.
- USE OF SERVICES
- ACCEPTABLE USE POLICY (“AUP”)
Customer agrees to use KloudTel Services in accordance, and in compliance, with all applicable laws, regulations, and rules, and to obtain all approvals, consents and authorizations necessary to conduct business and initiate or conduct any transmissions over any facilities covered by this Agreement. In addition, Customer agrees to use KloudTel Services in accordance with the guidelines, manuals, instructions and list of acceptable uses provided by KloudTel, which may be updated from time to time. Conduct that violates this policy includes, but is not limited to, the activities in the following list, when such violations involve or use or are handled by KloudTel’s network or servers:
- use of Services in such a way that would violate KloudTel’s contracts with its service providers;
- giving access to an account, through sharing of passwords or otherwise, to any person other than the assigned user or pre-authorized group users for that account;
- using the network to gain unauthorized access to any computer system or to purposely install a virus or any other unauthorized program on any computer system;
- unauthorized attempts to circumvent data protection schemes or uncover security loopholes. This includes running programs that are designed to identify security loopholes or decrypt intentionally secure data;
- knowingly or recklessly performing an act that will interfere with the normal operation of KloudTel’s computers, peripherals, or network;
- deliberately wasting or overloading KloudTel’s network or server resources, or those of any other system via KloudTel;
- inappropriate or unsolicited mass mailings or talk requests such as multiple mailings to newsgroups, mailing lists or individuals;
- inappropriate posting of commercial or inflammatory material to newsgroups not intended or inappropriate for such postings;
- forging communications to make them appear to originate from another person;
- attempting to monitor or tamper with another user’s electronic communications, or reading, copying, changing or deleting another user’s files or software without the express agreement of the other user.
- NOTICE OF INFRACTION
KloudTel will attempt to resolve minor infractions of the AUP set out above informally. However, depending on KloudTel’s assessment of the severity and likely consequences of a violation of any part of the AUP set out in paragraph 3 of this Agreement, KloudTel may, at its sole discretion and without any liability:
- notify the individual user or Customer point of contact with a warning;
- without notice, disable, suspend or terminate one or more Services being provided to the specific user or Customer; or
- notify and cooperate with the appropriate federal or state/provincial authorities.
Customer consents to the use, collection and disclosure by KloudTel, assignees of KloudTel, and their respective affiliates, agents and contractors of Customer’s name, address, telephone and fax numbers and e-mail address for the following purposes:
- providing products and services to Customer,
- contract management and administration,
- establishing a relationship and communicating with Customer,
- developing, implementing and managing products and services for Customer,
- assisting in law enforcement purposes and collecting unpaid debts,
- protecting, managing and promoting their business interests and activities,
- providing information to Customer on other products and services which may be available from KloudTel or an organization related to KloudTel, or
- otherwise as required or permitted by law or this Agreement.
Customer may withdraw consent in respect of subparagraph g) without affecting his or her other arrangements with KloudTel, by contacting KloudTel.
Any software incorporated into or provided for use in or with any KloudTel Service (whether initially, as part of maintenance or support; or otherwise) is not sold, but rather provided under license only, solely for Customer’s internal use in or with the applicable product, strictly in accordance with documentation and any other use restrictions, that are applicable for that product. Such license is non-exclusive, non-sub-licensable, subject to the terms and conditions of this Agreement, and does not include the right to (and Customer will not, directly or indirectly) modify, reverse enginee (except to the extent applicable statutory law expressly prohibits reverse engineerin restrictions), incorporate or use in any other works, create derivatives of, o copy any portion of suc software (except as specifically authorized in documentation provided b KloudTel for purposes of installation, support or maintenance with respect t the Service).
KloudTel represents and warrants that any hardware provided by KloudTel to Customer for use in or with any KloudTel Service is either original with KloudTel or has been fully licensed by KloudTel, and that neither the hardware nor Customer’s use of the hardware as contemplated by this Agreement will infringe or violate any rights of any person or entity, nor shall Customer be required to pay or incur any sums to any person or entity as a result of KloudTel’s ownership, acquisition or use of the hardware, except as herein provided.
- TITLE TO EQUIPMENT AND RISK OF LOSS
KloudTel shall, as between KloudTel and Customer, retain title to all hardware and other equipment, all software and all associated property residing in KloudTel’s facilities used in connection with providing any Service to Customer. Upon expiration or termination of this Agreement for any reason with respect to any Service, Customer shall surrender any and all KloudTel equipment, software and associated property in respect of each such Service to KloudTel in the same condition as installed, with the exception of ordinary wear and tear. Customer shall be liable to KloudTel for the cost of repair or replacement of equipment, software and associated property lost, stolen or damaged while in the care of Customer.
- PROPRIETARY MATERIAL
- “Proprietary Material” is information or material
- compiled by, obtained by, or furnished to either Party to the other regarding the disclosing Party, any of its parent, subsidiary or affiliated companies, employees or business, and that is not available to the public without disclosure by a Party, nor becomes available to either Party on a non-confidential basis from a source which is entitled to disclose it; or
- that is proprietary property or content, including any copyrights, trademarks, service marks, patents or other intellectual property.
- Each Party agrees that
- all Proprietary Material shall remain the sole and exclusive property of the providing party, and no license or other interest in it is hereby granted except as expressly provided herein, and
- unless compelled by public authorities exercising proper legal authority, it will not, directly or indirectly, during or after an Initial Term or any Renewal Term, disclose in any manner, or use or permit others to use, any Proprietary Material.
- “Proprietary Material” is information or material
- AS-IS BASIS
- PROPRIETARY MATERIAL
All services hereunder are provided on an “as is” basis. Customer’s or its users’ use thereof is at
such parties’ own decision and risk. KloudTel does no make, and hereby disclaims, any and all other express and implied warranties including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, and any warranties arising from a course of dealing, usage, or trade practice. KloudTel makes no warranty that any service will be without failure, delay, interruption, error, degradation or loss of data.
- LIMITATION OF LIABILITY
- Liability for damages.
- LIMITATION OF LIABILITY
KloudTel shall not be liable for any special, indirect, incidental, or consequential damages including, without limitation, lost income or lost revenue (whether or not such damages were foreseen at the time this Agreement was entered into). This limitation applies to claims founded in breach of contract, breach of warranty, product liability, tort (including both active and passive negligence of KloudTel), or any other theory of liability.
for direct damages. The liability of KloudTel for direct damages including, without limitation, injuries to persons or property, arising out of KloudTel’s performance hereunder, including mistakes, interruptions, delays, or defects in transmission during KloudTel’s provision of any Service, shall not exceed an amount equivalent to the proportionate charge to Customer for the period of time during which such mistake, interruption, delay or defect in transmission adversely affects such Service.
for defacement or damage to premises or equipment. KloudTel shall not be liable for any defacement of or damage to Customer’s premises or the equipment of Customer or others resulting from KloudTel’s furnishing of any Service on such premises or by the installation or removal of any equipment included in the Services, unless such defacement or damage is the result of negligence of KloudTel’s agents or employees.
harmless. Customer hereby holds KloudTel and its agents and employees harmless from, and agrees to be responsible for, all losses, damages and liabilities resulting from unauthorized use of a Service and any content transmitted using a Service.
- CUSTOMER NETWORK
Customer acknowledges that all data and voice network infrastructure, LAN, and IP voice equipment located at Customer’s premises, including but not limited to routers, switches, firewalls, cable plant, analog converters, analog telephone adapters, modems, fax machines, music on hold devices, IVR devices, CTI devices, IP phones, IP softphones, servers, and personal computers (“Customer Network”) is the responsibility of Customer. KloudTel shall provide Customer point of contact or Customer IT vendor point of contact with Customer Network IP voice minimum system, compatibility and LAN configuration documentation outlining IP voice best practices. Unless contracted otherwise to do so, Customer acknowledges that KloudTel is not responsible for ongoing support and maintenance of Customer Network. Customer must notify KloudTel in writing a minimum of thirty (30) days in advance of a change to Customer’s Network in order to allow KloudTel adequate time to analyze, test and assess the impact of the changes on the performance of KloudTel’s Products in the Customer’s Network. Where KloudTel determines that lack of such notice has resulted in degradation or failure of KloudTel’s Products, KloudTel may bill the Customer for support time incurred by KloudTel staff to rectify such degradation or failure of Products at the then standard hourly rate charged by KloudTel for professional services.
- KloudTel’S ROLE
Customer hereby acknowledges that KloudTel is distinct from any value-added reseller, service provider or any other agent (“Contractor”), and that this Agreement constitutes a separate and independent obligation of Customer which is unrelated to the performance or non-performance of any Contractor. Customer shall not have any right to abate, decline to pay or otherwise fail to honour its obligations under any Contractor agreement as a result of KloudTel’s performance or non-performance of any obligation under this Agreement, and Customer shall not have any right to abate, decline to pay or otherwise fail to honour its obligations under this Agreement as a result of any Contractor performance or non-performance of any obligations under any agreement with Customer.
Customer shall defend and indemnify KloudTel and its officers, directors, agents and employees from and against all third-party claims, liabilities, damages, settlements, attorney’s fees and expenses resulting from
(i) Customer’s use of a Service;
(ii) any content transmitted using a Service and
(iii) any breach by Customer of its representations, warranties and undertakings hereunder.
- FORCE MAJEURE
KloudTel may adjust or suspend its performance to the extent performance is beyond KloudTel’s reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut, governmental action, or national emergencies, war, riot, insurrection, terrorism, vandalism, or labour difficulties such as work stoppages, strikes, or lockouts. In such event, KloudTel shall not be responsible for any nonperformance or delay in performance of any of its obligations under this Agreement.
- LEGAL AND REGULATORY CHANGES
KloudTel, If the Federal Communications Commission (“FCC”) or Canadian Radio-television and Telecommunications Commission (“CRTC”), court of competent jurisdiction, or any other agency with jurisdiction over the services covered by this Agreement issues a rule, regulation, law or order which has the effect of cancelling, changing, or superseding any material term or provision of this Agreement (collectively, “Regulatory Requirement”), then this Agreement shall be deemed modified in such a way as the Parties mutually agree is consistent with the form, intent and purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the Parties not be able to agree on modifications necessary to comply with a Regulatory Requirement within 30 days after the Regulatory Requirement is effective, then upon written notice either Party may, to the extent practicable, terminate that portion of this Agreement impacted by the Regulatory Requirement.
Customer may not assign this Agreement except with the prior written consent of KloudTel, whose consent shall not be unreasonably withheld. KloudTel may subcontract any or all of the work to be performed by KloudTel under this Agreement, but shall retain responsibility for the work subcontracted.
This Agreement shall be governed by the laws of the County of Cuyahoga and State of Ohio, United States of America without regard to choice of law principles. The parties agree to submit to the exclusive jurisdiction of the courts in Cuyahoga County, Ohio, United States of America in any legal action arising from this Agreement, a Service Order, or a Service provided hereunder.
If any term or provision of this Agreement shall be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then both Parties shall be relieved of all obligations arising under such provision and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent. However, the remainder of this Agreement shall not be affected. Each remaining term and provision shall be valid and enforceable.
- No contra proferentem.
No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this Agreement.
- No permanent waiver.
The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision.
- Complete agreement.
This Agreement, including any future modifications entered into by the Parties under the terms of the Agreement, constitutes the complete and exclusive statement of the understanding between the Parties and supersedes all proposals and prior agreements (oral or written) between the Parties relating to the content of this Agreement as it applies to any Service.
- Original agreement.
This Agreement may be signed in counterparts, each of which when executed, shall be deemed an original, and all such counterparts shall constitute one and the same instrument.
- Alternative format (Braille or large print).
KloudTel will make available, upon Customer’s request, a Braille or large-print copy of this Agreement.
The parties confirm that it is their wish that this Agreement and all related documents, including all Service Orders and all notices, be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tout document qui s’y rattache, dont tout avis et toute Commande de Service, soient rédigés en langue anglaise.
Schedule A – Internet & Data
INTERNET AND DATA SERVICES
The KloudTel Internet and Data Services (“Service”) is provided to the Customer in accordance with the Agreement and this Schedule. Capitalized terms not defined in this Schedule have the meaning given them in the Agreement.
“High Availability Access” – means that at least two of the access links in any KloudLINQ Product are from different carriers
“Maintenance Window” – means the period of time during which KloudTel performs regularly scheduled maintenance on its network and equipment
“Service Outage Time” – see Section 4.1 in this Schedule “A”
- SERVICES COVERED BY THIS AGREEMENT
The Services that are covered by this Agreement are listed below:
The characteristics and applicable charges related to these Services are described in the Sales Orders that accompany this Agreement.
- SERVICE LEVELS
Service Levels for Services covered under this Schedule “A” are listed and defined below, along with guidelines for a proper operating environment for KloudTel’s equipment.
- SERVICE AVAILABILITY
Service Level Component KloudLINQ Products KloudLINQ Products with Customer-Supplied Link(s) Service Availability (in %) 99.9 99.9* Service Availability (in %) with High Availability Access 99.99 99.99*
* This is dependent upon KloudTel receiving a Letter of Authorization from the Customer that allows KloudTel to contact the carrier(s) supplying these links directly on service issues.
The basis for determining Service Availability will be Service Outage Time reported by the Customer and confirmed by KloudTel as tracked in KloudTel’s trouble ticketing system.
“Service Outage Time” in this Schedule “A” means the period of time in which
the Services provided by KloudTel are unavailable. Service Outage Time begins when the Customer reports the trouble to KloudTel through the proper support channel (via either the KloudTel Help Desk phone number or e-mail) and releases the affected components to KloudTel, and ends when KloudTel notifies the Customer that the problem has been resolved and the components are available to the Customer to use. Service Outage Time does not include time in which the service is simply degraded or slow.
The formula for calculation of Service Availability is set out as follows:
(Total Time in the Month (in hrs) less Total Service Outage Time in the Month (in hrs))
Total Time in the Month (in hrs)
- SUPPORT AVAILABILITY
The standard KloudTel Help Desk hours of coverage are between 8:00 am and 8:00 pm EST.
- SCHEDULED MAINTENANCE
KloudTel performs periodic scheduled maintenance to ensure the quality and integrity of its network. KloudTel will provide the Customer notice of a minimum of ten (10) business days prior to a Maintenance Window.
- OPERATIN ENVIRONMENT FOR KloudTel HARDWARE
For optimal performance of hardware provided by KloudTel, the following guidelines should be followed:
- Hardware is maintained in a room where the temperature does not exceed 24 degrees Celsius and with adequate air circulation, free of obstruction within 6 inches;
- Nothing is place on top of hardware, including additional equipment, papers or books;
- Hardware should be plugged into a customer-provided universal power supply (“UPS”) with a minimum 20 minute run time;
- All cables plugged into or attached to hardware should be slack;
- In order to facilitate physical troubleshooting, there should be easy access to the hardware.
- In locations that are prone to electrical surges or extreme weather conditions, surge protectors are recommended.
- Some KloudTel hardware is provided with warranty sticker. If this warranty sticker is broken, or if KloudTel determines that there is abuse of the hardware casing, hardware warranties and Service Availability commitments will be voided.
- BURST USAGE
KloudTel will measure Customer’s bandwidth usage in five-minute intervals, for each point of connection between Customer and KloudTel (or its upstream provider), in two categories: incoming and outgoing. At the end of each billing cycle, all data samples in each category will be sorted from highest to lowest and the top 5% of measurements will be discarded. The highest remaining data sample in the higher of the two categories will then constitute the Bandwidth Use Level for that particular billing cycle.
Burstable Bandwidth is the bandwidth usage calculated by subtracting Customer’s committed level of bandwidth from the Bandwidth Use Level for a particular billing cycle; only a positive remainder shall calculate Burstable Bandwidth. Notwithstanding sub-paragraph 2.3(b) of the Master Service Agreement, invoicing for Customer’s monthly recurring charge as set forth on any Service Order shall be monthly in advance for fixed or committed bandwidth, and monthly in arrears for Burstable Bandwidth charges.
- BASIS FOR OUTAGE REFUNDS
- Outage Refund. If a Service
covered by this Schedule “A” experiences outages for a cumulative period
exceeding the minimum service level commitments in accordance with Section
4.1, the Customer will, upon request, receive a service credit equal to
1/30th of the monthly recurring charge for the affected Service for each
incremental hour of unavailability. All credit calculations will be based
on unavailability in one-hour increments. Any and all service credits
shall not exceed 40% of the Customer’s recurring monthly charges for the
affected service for the month in which the service interruption occurred.
- Restrictions. The service level
commitments set out in Section 4.1 and the duration of outage for the
purposes of credits excludes:
- short periods of temporary service degradation, such as slow data transmissions; and service interruptions due to scheduled or emergency network maintenance or facility maintenance by KloudTel, which will be notified to all Customers before they occur; and
- service interruptions caused by circumstances beyond KloudTel’s reasonable control, including where caused by individuals not directly employed by KloudTel, or caused by any act or omission of Customer, such as changes made to Customer’s network without at least 30 days prior notification to KloudTel to allow KloudTel to adequately analyze such proposed changes and perform testing; and
- unavailability or interruption or delay in telecommunications or third-party services; failure of third-party software or hardware; inability to obtain raw materials, supplies, or power needed for KloudTel’s network; delay in transportation; or Force Majeure, as defined in the Agreement hereto.
- Sole remedy. The service
credits in this Section 6 are Customer’s sole remedy for failure by KloudTel to meet the service levels described in this Schedule “A”.
- INITIAL TERM
Terms Of Service
(KloudTel Contact Center)
KloudTel Contact Center Platform Uptime/Downtime Requirements:
KloudTel will calculate the performance standards for the KloudTel Contact Center Platform (the “Platform Service Level”) for each calendar month of service during the term of the SLA in accordance with the terms of this paragraph. If a “Service Level Penalty” is due to the Customer pursuant to the chart below, the monthly invoice will include a discount line as well as a report that indicates the Platform Service Level achieved during the invoice month. The maximum Platform Service Level penalty for the SLA in any month will be 40% of the monthly Contact Center fees due pursuant to the SA, unless a higher discount is discussed with and approved by KloudTel prior to the end of the invoice period in question.
The following measurement and penalty will apply:
|Platform Service Level Performance Measurement
(Based Upon Hours of Downtime Per Month)
|Service Level Penalty
(Percentage of Monthly Invoice)
Downtime conditions that contribute to Service Level calculations:
Downtime is defined as a period during which an application is prevented from taking calls or unable to perform necessary functions. The following conditions shall, without limitation, constitute “downtime” for purposes of the Platform Service Level calculation:
- The Platform is down for any time period
Downtime conditions that do not contribute to Service Level calculations:
The following conditions shall not constitute “downtime” for purpose of the Platform Service Level calculation:
- Any inability to provide the KloudTel Contact Center Platform solution to the Customer that arises solely out of a condition affecting the customers premise equipment.
- Any scheduled maintenance as described below;
- A force majeure event caused by acts of God, civil unrest, strikes, labor disputes, governmental demands or requirements, or service interruptions from underlying telecommunications carriers or other service providers.
The KloudTel Contact Center Platform will be available to the Customer seven (7) days per week and twenty-four (24) hours per day. Exceptions may include planned maintenance activities that may preclude accessibility. KloudTel guarantees that the Customer will receive at least (1) days’ notice for any planned maintenance which should occur in the maintenance window time frame, this notice is delivered via the status page at https://status.kloudtel.com or directly in the KloudTel system portal.The notification provided to the Customer will detail:
- Date and time of the planned maintenance
- Contact information for questions
- Justification for the work required
- Planned maintenance activities
- Anticipated Customer impact
KloudTel has the right to cancel a scheduled maintenance with one (1) days’ notice. In such case, KloudTel and the Customer will work together to reschedule the maintenance. Maintenance periods should be planned during the hours with the least amount of traffic.
In the event the KloudTel Contact Center Platform is generating errors and must be immediately updated, KloudTel shall promptly initiate an emergency change and will notify the Customer as soon as possible as to any changes being made on the KloudTel Contact Center Platform.
Service Level Exclusions:
No SLA credit under this Attachment will apply to the failure of the Service to comply with the SLA caused, in whole or in part, by any of the following:
- Force Majeure events as defined in the Agreement.
- Failure of Customer’s premises equipment or equipment of Customer’s vendor other than KloudTel.
- Failure of local facilities or other connection between Customer and KloudTel network, which is not provided by KloudTel.
- Customer’s negligence or willful misconduct, which may include Customer’s failure to follow agreed-upon procedures.
- Any acts or omissions of Customer or any third party (including but not limited to, Customer’s agents, contractors or vendors), including, but not limited to (i) failing to provide KloudTel with adequate access to facilities for testing, (ii) failing to provide access to Customer premises as reasonably required by KloudTel (or its agents) to enable KloudTel to comply with its obligations regarding the Service, (iii) failing to take any reasonable remedial action in relation to the Service as recommended by KloudTel, or otherwise preventing KloudTel from doing so, or (iv) any act or omission which causes KloudTel to be unable to meet any of the SLAs.
- Any emergency maintenance as well as any scheduled maintenance periods of which Customer has been notified of such maintenance.
- Any suspension or disconnection of the Service by KloudTel as permitted under the Agreement.
Any failure to substantially meet a particular SLA above in a particular month will entitle Customer to the SLA credits as set forth above on the Services provided during the month in which the SLA failure occurred and any consecutive subsequent months during which KloudTel continues to fail to meet the applicable SLA; provided however, to be entitled to a service credit, (i) Customer must have notified KloudTel of the SLA failure within thirty (30) calendar days from when the service-impacting event first occurred, (ii) Customer must have reasonably cooperated with KloudTel in addressing any reported Service problems; (iii) no SLAs will apply to newly installed services or to Service reconfigurations requested by Customer, until five (5) business days after completion of the installation or Service reconfiguration, as applicable; (iv) no Service Level Exclusions as set forth above have occurred; and (v) KloudTel has approved the Customer’s network architecture, including its redundant and diverse interconnections.