As of May 9, 2018
Telecommunication Products and Services Provided by Digital Comm Inc.
Welcome to Multicomm from Digital Comm Inc. and its affiliated companies (“DCI” or “we” or “us”). On this website and/or through our authorized Multicomm retailers we provide our U.S. consumers with the following telecommunication products and services (collectively, the “Services”):
• DCI’s prepaid, pin-less, telecommunication service which enables consumers to make U.S. domestic and international calls Multicomm Pinless (“MC Pinless”). MC Pinless can be accessed via your mobile device through our Multicomm Mobile Application (the “App”);
• DCI’s pre-paid “top up,” telecommunication service, which enables U.S. consumers to load funds to an international mobile phone.
• DCI’s voice and advance communications services (referred to from time to time herein as “VoIP”), and any associated software and hardware or web-accessible portals;
• DCI’s text/SMS/MMS services (referred to from time to time as “MC SMS” or the “Platform”), and any associated software and platforms, including both mobile and online versions.
• our Rewards Program Terms and Conditions, which can be found at https://rewards.multi-comm.us;
• our Arbitration of Disputes as set for in Section 10.14 below, and which can be found at https://multicommsolutions.com/arbitration-of-disputes/ ;
• any license you are required to agree to in order to download, install and use the App;
• any other terms and conditions for a particular Service that are posted on the Website or in the App,
including any price or charge for any Service; and
• any agreements, exhibits, disclosures, limitations or other information provided with, or printed on, any materials associated with the Services.
If you have activated DCI’s VoIP Services, there are important 911 terms related to your VoIP services, please review the entire User Agreement with special emphasis to Section 5.7. By activating the VoIP Services, you acknowledge that you have read, understood and agree to these terms and conditions. If you are uncomfortable with the limitation of DCI’s 911 service, you should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the VoIP Services.
DCI reserves the right to update or revise this User Agreement at any time without prior notice. Please check the User Agreement periodically for changes. Please check the Website periodically for changes. Your continued use of a Service, the Website or the App following the posting of any changes constitutes acceptance of those changes. If you do not agree with the terms of this User Agreement, then you should not purchase or use any of the Services, access the Website or App, or create a Multicomm User Profile. If there is any conflict between the terms of this User Agreement and the terms contained on the Website, in the App or in any materials regarding any of the Services, then the terms of this User Agreement will control. This User Agreement governs your purchase and use of a Service whether you purchased the Service at a retailer location, online at the Website or through the App (if available). DCI or its affiliates may offer other products or services on the Website and those other products and services are subject to different terms and conditions, which can be found on the Website.
- User Profile and Personal Information
2.1 User Profile. In order to purchase and use any of the Services, whether from the Website, in the App or at an authorized Multicomm retail location, you must create a Multicomm User Profile (“User Profile”). Your User Profile must contain your name, email address and mobile number. If you purchase any of the Services from the Website, you will be required to choose a password for your User Profile and DCI will verify your email address.
2.2 Personal Information. You agree and confirm that the personal information that you provide to us shall be accurate, current and complete in all respects. You agree to promptly update such information to keep it accurate, current and complete. You give us permission to verify all information you provide, including your email address and credit or debit card information. DCI reserves the right to suspend or terminate your Services if any information provided to us proves to be inaccurate, not current or incomplete.
- DCI’s Role in Offering the Services
Our third party service providers provide the telecommunication services underlying MC Pinless, MC SMS, and the VoIP Service.
- MC Pinless Service
4.1 Opening a MC Pinless Account. To purchase and use MC Pinless you must create and fund an Account (“Account”). An Account can also be created with promotional balance. An Account means a 10 digit unique account number corresponding to your mobile or landline phone number, or such other number provided by DCI (each an “ANI”), which must be funded by you to purchase and use an Account. You can open an Account on the Website, through the App or at authorized retail locations. All requests to open or fund an Account are subject to acceptance by DCI. If you successfully open an Account, we will send you a confirmation message with your security code (“Security Code”) and other important instructions. The confirmation message will be sent either by SMS to the phone number you requested DCI to register or delivered by our automated Interactive Voice Response (“IVR”), which will automatically dial that phone number. You must at all times keep your Security Code confidential and secure, and you must tell us immediately if your security code is disclosed to any unauthorized person. We may disclose any information in connection with your Account to anyone who correctly quotes your Security Code, web password or security question.
4.2 Using MC Pinless. You can use MC Pinless either on a pay-as-you-go basis. You can use MC Pinless on a pay-as-you-go basis with your Account. All of the terms and conditions in this Article 4 relating to MC Pinless apply to your use of MC Pinless on this basis. Using MC Pinless on a pay asyou-go basis gives you a limited right of use to MC Pinless for a period of one year from your last usage or recharge, except as provided by applicable law. Any amounts allocated to your Account may be applied only toward the use of MC Pinless and are not redeemable for cash. DCI may offer one or more pay as you go plans that may offer lower rates to certain countries. You can call any destination serviced by MC Pinless by funding your Account. DCI may discontinue or change the discounted countries in a Paygo Plan at any time.
4.3 Funding Your Account.
You can add funds to your Account by (1) purchasing a top-up card (voucher) at authorized Multicomm retailers, (2) providing cash at an authorized Multicomm retailer, or (3) recharging via the Website, IVR or in the App. Your ANI will be automatically recognized by DCI’s systems. Funding your Account on a pay-as-you-go basis gives you a limited right of use MC Pinless for a period of one year from your last usage or recharge, except as provided by applicable law. Amounts deposited into your Account have no cash value and may not be refunded.
4.4 Payments. Acceptable forms of payment for MC Pinless include credit card, debit card, cash (in store), and any other form of payment DCI may authorize in the future. Payments are either made manually by you or through the automatic recharge function activated by you. The automatic recharge function means that when your Account balance is below a certain level, your Account will be automatically recharged using your debit or credit card on file (or ACH, if and when available) with a certain pre-selected amount determined by you. When you fund your Account by credit or debit card sometimes only part of the value requested will be available for your immediate use. In such cases, the remaining balance of any such funds will only be available for you to use once your payment details are authenticated and payment is actually taken. Upon receipt all payments become the property of DCI and you have a corresponding limited right of use to MC Pinless for a period of one year from your last usage or recharge. We do not waive our right to collect the full amount due if your form of payment is cancelled, disabled, discontinued or otherwise dishonored after your use of the Service. All payments must be made in U.S. dollars.
A. The charges for any specific call placed with MC Pinless consist of a per minute rate to the destination called plus any applicable taxes and charges. The Website contains the per minute rates and other charges for using MC Pinless, including any pay-as-you-go plan (if available). The rate per minute for calls made from 800 access are billed at an additional rate that may vary based on location please check our website for more information. The charges incurred will be automatically deducted from the balance in your Account.
B. General. All charges, including the per minute rate and fees, are shown and billed in U.S. dollars. You may contact DCI’s Customer Service Representatives at firstname.lastname@example.org if you have any questions about MC Pinless, including the U.S. domestic or international long distance rates associated with MC Pinless. You agree that by continuing to use MC Pinless following a change in the rates or charges, you accept such adjustments. DCI may change the per minute rates and other charges (or add additional charges) associated with MC Pinless at any time without prior notice, and such changes will be effective from the time they are posted to the Website or App.
4.6 Cell Phone Use. When dialing an access number for MC Pinless from a cell phone, DO NOT PRESS “SEND” again after entering your destination number as this might result in additional charges from your wireless provider. Rather, you should wait for MC Pinless to commence automatically after dialing the destination number. When using MC Pinless with the App make sure that you are in the App before commencing your call or you may be charged by your mobile carrier. DCI is not responsible for any costs incurred by you if you incorrectly use MC Pinless, including without limitation cell phone provider charges and/or any landline charges.
4.7 Account Limitations. DCI may, in its sole discretion, limit the number of Accounts you can open and/or maintain at one time, or over a certain period of time. We reserve the right to reject your attempt to open an Account and reserve the right to close any Account (with a corresponding refund) if the number of your accounts exceeds any limit which we impose. You may add additional phone numbers to your ANI, but we reserve the right to impose any limit on such creation of additional phone numbers. DCI may also limit the amount of balance you can add to an Account on any day and any transaction that exceeds that limit will be canceled.
4.8 Refunds. You have no right to a refund for amounts added to your Account or for any unused balance. Amounts added to your Account and any unused balance have no cash value.
4.9 Credits for Interruptions. If an interruption or failure of MC Pinless is caused solely by us and not by you or by a third party or by other causes beyond our reasonable control, you may be entitled to a credit to be applied to your Account balance to be used on a pay-as-you-go basis. To request a credit, you must contact Customer Service by phone, in writing or email to email@example.com. DCI reserves the right to refuse a credit request if it reasonably believes (a) that you are trying to unfairly exploit this credit policy, (b) you have breached this User Agreement or (iii) that you are using MC Pinless fraudulently or that your Account is being used fraudulently by a third party. Credits will not be provided in cash for any reason.
4.10 Roaming Charges. You may also have to pay additional roaming charges to your mobile carrier if you connect to MC Pinless while you are in a location where your mobile carrier does not have its own facilities (and your call roams on a third party’s facilities) and/or a country that is not the country associated with your mobile carrier account. Roaming charges are charged in addition to any DCI charges you may incur when connecting to or using MC Pinless from another country.
4.11 No Emergency Calls. MC Pinless does not and is not intended to support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any type of emergency services of any kind and DCI is not liable in any manner for such calls.
4.12 No SMS, MMS or FAX Messages. MC Pinless does not include the ability to send messages via SMS, MMS or FAX.
4.13 Termination of Right of Use.
A. Pay As You Go. Your right of use in your Account and to MC Pinless will terminate one year from your last usage or recharge, except as provided by applicable law.
B. General. DCI reserves the right to extend or grant additional rights of use to MC Pinless in its sole discretion.
4.14 Certain Features and Functionality.
A. App-to-App Calls and Messaging. The App-to-App messaging Service (“App-to- App”), if and when available, allows users of the App to make free calls or send free messages to other users of the App. In order to use App-to-App both parties must have the latest version of the App and communicate via either a data or WiFi connection. DCI does not charge for any call made or message sent using App-to-App. We will not be liable for any charges payable to your mobile provider or any third party arising from your use of App-to-App.
B. Multicomm Fund Share. The Multicomm Fund Share Service (“Fund Share”), if and when available, allows users of the App to fund (i.e., top up) another user’s Account, including an Account of a person residing outside the United States. Senders can pay using any funding method available in their country, including payment through the App using a credit or debit card or their applicable App Store account. Alternatively, the sender can send a portion of his/her current Account balance that was previously purchased at an authorized Multicomm retailer. Users can fund an Account in any country in which the App is offered. DCI does not charge any fees to use Fund Share. All top up amounts are denominated in U.S. dollars (USD$).
5. VoIP Service
Any capitalized terms set forth below and not otherwise defined shall have the meaning set forth in Section 5.8.
5.1 Plan Subscription.
A. Purchase of Plan Services. Pursuant to this User Agreement, you are purchasing a subscription for the VoIP Services (referred to herein from time to time as “Services”) set forth in your initial Order, and agreeing to use and pay for the same as set forth in the initial Order for the entire period in the initial Order (the “Initial Term”), and any renewal terms, as applicable. You agree to be financially responsible for your use of the Services, including the authorized or unauthorized use of your “VoIP Account.” In order to use the Services, you must have properly configured and working Internet service or broadband connection as set forth in Section 4.A. (IP Network Sufficiency), below. DCI does not provide any access to the Internet.
B. Account Registration. Upon signing up for the Services and at subsequent times as requested by DCI, you or your End Users may be required to provide certain information, including but not limited to, name, address, phone number, email address, security question and/or answers) in order to begin using or to update the Services, activate features, or add or modify any individual lines, extension or additional products or services (e.g., activating an Account or End User or provisioning a device) (“Registration Information”). You hereby grant to DCI permission and a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use Registration Information in connection with the activation, provision, support, improvement, administration, or management of your Services, as set forth in this User Agreement or otherwise permitted by Law. You represent and warrant that all Registration Information provided to DCI by or on behalf of you or any End User will be true, accurate, current, and complete, and that you will promptly confirm, update, or supplement Registration Information on file upon DCI’s request or in the event that such Registration Information changes.
C. Account Administrators. The End User(s) you designate as account administrator(s) of your Services will have rights to set or modify the settings or preferences of other End Users of Your Account. You are responsible for all acts and omissions of your account administrators, and any other End Users, including without limitation any changes or purchases such individuals may make to your Account.
D. Purchase of Additional Digital Lines. Your Services may include Digital Lines as set forth in the applicable Order. Account administrators may purchase additional Digital Lines for the applicable Account at any time by placing an Order for the Digital Lines through the Account’s customer portal or by contacting the DCI account representative for that Account. Each additional Digital Line added to your Account is subject to the terms of this User Agreement. The term of the additional Digital Lines will run conterminously with the Term of your initial purchase (either monthly or annually renewed, as applicable).
E. Term and Automatic Renewal. Your license to the Services is provided for the Initial Term and any subsequent renewal terms. The Initial Term for all service plans will renew automatically for successive terms of the same length (each, a “Renewal Term”) without further action by or notice to you; if you wish to cancel or terminate your DCI Services, You must notify DCI customer service of your intent not to renewal at least thirty (30) days before the end of the Initial Term or then-current Renewal Term. The Initial Term together with any Renewal
Term(s) is collectively referred to as the “Term.”
F. Equipment. All IP Desk phones and/or equipment related to IP Desk phones, including but not limited to, handsets, headsets, software installed on or related to those devices, and any other product directly related to IP devices, shall be provided to the DCI customer by either DCI or a third-party vendor. The terms and conditions that govern any equipment, including but not limited to, purchases, warranties, returns, exchanges and claims, can be found at the web page entitled “Terms and Conditions of Sale License of Hardware” at https://multicommsolutions.com/termsofequipment/. These terms and conditions may be updated at any time with or without notice to you.
5.2 Service Requirements and Limitations.
A. IP Network Sufficiency. You acknowledge and agree that: (i) the Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection; (ii) use of the Services with any lesser network, services, or connection may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection; and (iii) 3G, LTE or 4G networks are not recommended for use with the Services. Accordingly, you agree to provide and maintain, at your cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection. DCI is not liable for any unavailability, interruption, or underperformance of the Services related to your IP network or connection.
IMPORTANT INFORMATION: IF YOUR IP NETWORK OR CONNECTION FAILS, YOUR SERVICES WILL ALSO FAIL. YOUR SERVICES MAY CEASE TO FUNCTION IF THERE IS A POWER CUT OR FAILURE. THESE FAILURES MAY BE CAUSED BY REASONS OUTSIDE OF DCI’S CONTROL.
B. Caller ID Display Limitations and Compliance. You acknowledge and agree that the disclosure and/or display of information related to the origination of calls, messages, and other communications (including without limitation “Caller ID” information) may be subject to legal requirements, including without limitation those related to the accurate display of such information or the enforcement of certain privacy instructions, settings, etc. You agree to comply with all such applicable Laws and implementing regulations, including without limitation the Truth in Caller ID Act. DCI has no obligation to disclose, display, or transmit any such information for or in connection with any “Customer Communication” (as defined in paragraph 5.3 below). You agree to indemnify and hold harmless DCI from any and all third party claims, losses, damages, fines, or penalties arising out of your breach of this paragraph.
C. Operator Assisted Calling, 311, 511 and other X11 Calling. DCI does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). Your Service may not support 211, 311, 411, 511, and/or other N11 calling (except as otherwise provided in this User Agreement) in one or more service areas.
D. Voice-to-Text and Text-to-Voice. You acknowledge and agree that: (i) any and all voice/text features are provided merely as a convenience and may not accurately transcribe voice content, articulate text messages, or perform such functionality for all voice content or text messages or for the entirety of voice content or text messages; (ii) neither you nor any End User may rely on any voice/text feature to perform such accurate transcription or articulation; and (iii) you and all End Users shall be responsible for reviewing and/or listening to the original content of any Customer Communication or other media as necessary or appropriate to prevent you, any End User, or any other party from incurring any cost, expense, liability, loss, damage, or harm.
E. Use of Third Party Devices. DCI does not guarantee or make any representation or warranty that any IP Desk Phones and/or other equipment related to IP Desk Phones which are not purchased through or supplied by DCI or its designated third-party vendor will work or be compatible with the Services or support the Services’ full performance or quality of service potential or range of features and functionalities.
F. Use of Mobile Application. The DCI mobile application can be configured to make or receive calls on your 3G, LTE, or 4G network using your data service, and may result in additional data usage fees from your mobile service provider. You can disable 3G/LTE/4G calling by configuring the mobile application to make/receive calls only over a wi-fi connection. Configuring the mobile application to disable VoIP calling will result in DCI making/receiving calls using your voice connection from your mobile service provider; this may result in additional voice minute usage fees from your mobile service provider.
5.3 Use Policies.
A. High Risk Use. YOU ACKNOWLEDGE THAT THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU AND YOUR END USERS WILL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
B. Acceptable Use. NEITHER YOU NOR ANY OF YOUR END USERS SHALL USE THE SERVICES FOR ANY ILLEGAL, FRAUDULENT, IMPROPER, OR ABUSIVE PURPOSE OR IN ANY WAY THAT INTERFERES WITH DCI’S ABILITY TO PROVIDE HIGH QUALITY SERVICES TO OTHER CUSTOMERS, PREVENTS OR RESTRICTS OTHER CUSTOMERS FROM USING THE SERVICES, OR DAMAGES ANY DCI’S OR OTHER CUSTOMERS’ PROPERTY. A breach of obligations in this Section 5 (Use Policies) constitutes a material breach of this User Agreement, such that DCI may suspend service, terminate the Agreement immediately, or take any other action DCI deems necessary to provide the Services to you and others; to protect you, the Services, and the DCI networks; and to enforce the terms of this Section 5.3.
C. Customer Legal Compliance. You represent and warrant that all use and usage of the Services, and your Account(s), will at all times comply with all applicable Laws, including but not limited to the rules, policies and regulations of the Federal Communications Commission (“FCC”) or the Canadian Radio-Television and Telecommunications Commission (“CRTC”), as applicable, and all laws relating to Do-Not-Call provisions; unsolicited marketing; telemarketing; faxing; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export control; export of technical or personal data; end user, end-use, and destination restrictions imposed by the United States, Canada, or foreign governments; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities.
D. Unsolicited Advertisements and TCPA Compliance. Certain communication practices – including without limitation, the placing of unsolicited calls; the placing of commercial messages; the sending of unsolicited facsimile, internet facsimile, SMS, or other messages; and the use of certain automated telephone equipment to place certain calls – are regulated in the United States by the Federal Telephone Consumer Protection Act of 1991 (also known as the “TCPA”) (available at http://www.fcc.gov/document/telephone-consumer-protection-act1991), the Junk Fax Prevention Act of 2005, and under a number of similar state, municipal or local laws, regulations, codes, ordinances and rules, and in Canada by the CRTC pursuant to Canada’s Anti-Spam Law (“CASL”) (available at http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html).
You agree, represent and warrant that:
- You are the creator of the content of, and are solely responsible for determining the destination(s) and recipient(s) of, all outbound communications made using your Services (“Customer Communication”);
- All content, communications, files, information, data, and other content provided for transmission through your Account, or the Services will be provided solely for lawful purposes, and in no event shall any Customer Communication or any content thereof be in violation of the TCPA, Junk Fax Prevention Act, CASL, or any other Law; and
- No unsolicited advertisements, commercial messages, solicitations, marketing or promotional materials, or commercial messages or content will be transmitted or distributed in the form of facsimiles or internet facsimiles through the Services. At DCI’s sole election and without further notice, DCI may use technologies and procedures, including without limitation, filters, that may block or terminate such unsolicited advertisements without delivering them. You agree to indemnify and hold harmless DCI, and any third-party provider(s) from any and all third-party claims, losses, damages, fines, or penalties arising: (i) out of your violation or alleged violation of the TCPA, Junk Fax Prevention Act, CASL, or any similar regulation or legislation; or (ii) otherwise related to any voicemail, text, and/or fax spam, solicitations, or commercial messages that you may send and/or receive using the Services.
E. Export Restrictions. You acknowledge and agree that the software and/or hardware used in conjunction with the Services may be subject to Canada, United States and other foreign laws and regulations governing the export, re-export, and/or transfer of software by physical or electronic means. You agree, represent, covenant, and warrant that: (i) neither you nor any End User (nor any entity or person that controls you or any End User): (a) is located in an Embargoed Area or listed on any Export Control List or (b) will export or re-export any DCI software or hardware into any Embargoed Area or to any person, entity, or organization on any Export Control List, or to any person, entity, or organization subject to economic sanctions due to ownership or control by any such person, entity, or organization, without prior authorization by license, license exception, or license exemption; and (ii) the Services and DCI software and/or hardware will not be used or accessed from any Embargoed Area.
F. Recording Conversations or Calls. Certain features of the Services may allow you or users of the Services to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications may vary from state to state, province to province, and country to country. You should consult with an attorney prior to recording any communication, as some jurisdictions may require the prior consent of all parties to a recorded communication. You represent, covenant, and warrant that you will review all applicable laws before you use or allow use of the Services to record any communications and will at all times comply with all applicable laws. You agree to inform all users of your Account that they are obligated to comply with all laws relating to their use of the call recording feature. Violations of call recording laws may be subject to criminal or civil penalties. DCI expressly disclaims all liability with respect to your recording of telephone conversations. You agree to indemnify and hold harmless DCI, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of your violation or alleged violation of any call recording laws. DCI expressly disclaims all liability and all warranties with respect to recording of conversations and/or calls.
5.4 Number Policies.
A. Number Availability. DCI may make available telephone and/or facsimile numbers for your selection and assignment to Account(s). You acknowledge and agree that DCI’s listing of a number may be erroneous and does not constitute a representation or guarantee that such number is actually available for such assignment, and that DCI shall be authorized to remove such number from an Account in the event that it is not actually available.
B. Number Porting Policy:
- Federal Porting Law. Number porting is defined and regulated by the FCC in the United States, and by CRTC in Canada.
- Number Port-In Request Procedures. In order to request the porting of a telephone or facsimile number into an Account, the account administrator for the Account into which you wish the telephone or facsimile number to be ported must log in to the customer portal for such Account and complete all steps and provide all information requested as part of the number port-in request process (which may include without limitation providing an executed Letter of Agency) or as otherwise requested by DCI. Additionally, if you wish to port into an Account more than 100 telephone or facsimile numbers from the same third-party service provider account, you must contact DCI’s Project Porting Department at firstname.lastname@example.org and comply with their instructions.
- The Number Porting Process. In order to request the porting out to another services provider of a telephone or facsimile number currently assigned to an Account, you must follow the instructions specified by that services provider and must provide all information and cooperation requested by the relevant other services providers, DCI, or any other relevant third party. You acknowledge and agree that: (i) the porting of telephone or facsimile numbers into or out of an Account requires your provision of specific and detailed information to DCI and/or third parties (including without limitation other services providers) and completion of certain steps and procedures, as well as third parties’ completion of certain steps; and (ii) numbers may not be ported into or out of an Account unless and until you are able to provide certain specific information that matches other information on record with DCI or other services providers. For these and other reasons, the completion of any number port request and the timing of and date by which any such request may be completed depend on a number of factors outside of DCI’s control, including without limitation the acts and omissions of both you and third parties, including without limitation other services providers.
- Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or an Account due to acts or omissions of third parties, and it may be difficult or impossible for DCI to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of an Account; or (iii) port such numbers back into an Account. DCI has no responsibility or liability due to such port-outs.
- Accurate Porting Information. You agree, represent and warrant that all information or representations provided in connection with any request to port in or port out numbers (including without limitation any information or representations in any Letter of Agency) by you, any user or End User, or any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing shall be true, accurate, and up-to-date.
- Customer Compliance with Porting Laws. You acknowledge and agree that the porting of numbers is subject to telecommunications and other laws and may be subject to third party terms and conditions. You agree, represent, and warrant that neither you; nor any user or End User; nor any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing will at any time: (i) violate any applicable law or engage in any fraudulent or deceptive conduct in its porting-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephony service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.
- Release of Numbers. You acknowledge that in the event of account termination or cancellation, all telephone numbers associated with your Account, which have not previously been ported to another provider, may be released. Similarly, the cancellation of individual lines may result in the release of the related numbers if those numbers have not previously been ported to another provider. You acknowledge that you are solely responsible for working with a third-party provider to port out any numbers prior to termination or cancellation of your Account or Services, or any individual line.
C. Number Publication by Customer. Neither you nor any End User may publicize, list, or communicate any number that you believe to be assigned to your Services or Account(s), or purchase or invest in any materials or media reflecting any such number unless and until you have verified that such number(s) is(are) active and functioning as desired, including without limitation by test calling such number(s) from a non-DCI service plan and verifying that the fees and charges that will be incurred in connection with use of such number(s) are acceptable to you.
5.5 Charges and Plan Credits. Please note that all prices, Taxes, surcharges, and fees are subject to change at any time, except to the extent such charges are set by agreement between You and DCI for a specified term. You are responsible for paying all charges for Your Account, including but not limited to toll -free, local, long distance, international minutes, additional feature charges, 411 and operator assisted charges, directory assistance charges, and for all Taxes, surcharges, and fees imposed on Your Account or us as a result of Your use of the Plan Service. Customers with a past due balance on previous or multiple accounts will be charged the full balance, including but not limited to any Taxes or Fees as defined in this TOS, any late fees, service change fees, and fees for chargebacks or returned checks, upon opening a new account or updating their credit card information on file.
A. Charges and Plan Credits. DCI offers several different plan options for Plan Service. You may change Your Plan Service plan at any time; however, a one-time processing fee of ten dollars ($10) may apply when “downgrading” an existing plan to a plan with lower monthly fees (e.g., a plan with fewer minutes and/or features). In addition, certain plans may entitle You to receive discounts on equipment used in connection with DCI Plan
Service. If You receive any equipment discounts associated with a Plan Service plan and subsequently change that plan to one that does not offer those equipment discounts, You agree to reimburse DCI, and hereby authorize DCI to charge Your credit card on file, or invoice You, as applicable, for such equipment discounts.
B. Service Availability. You acknowledge and agree that the products or services, including without limitation the Plan Services, may not be available one hundred percent (100%) of the time. Credit allowances for interruption of the Plan Services may only be provided on a case-by-case basis at the sole discretion of DCI and shall be Your sole remedy for any Plan Services interruptions or other issues with the Plan Services.
C. Plan Credits and Minutes. DCI offers several different plans for its products and services. Some of the plans provide for a fixed number of monthly usage minutes (“Plan Credits”). If You exceed Your monthly Plan Credits during the course of a Service month, You may purchase additional Plan Credits as needed. DCI may also provide You certain bonus credit minutes and/or other promotional incentives (e.g., “tell-a-friend” credits) upon fulfillment of the applicable promotion requirements. All of the Plan Credits are quoted in terms of domestic minute usage, and may be referred to on the DCI website or by a DCI Customer Service representative as “minutes”. As explained below, international calling may be charged at a different rate than domestic calling, and a Plan Credit “minute” therefore will not entitle You to a minute of international calling (“International Minutes”).
D. Unlimited Plan. DCI offers unlimited monthly plans for some of its products and services. “Unlimited” does not refer to types prohibited by these TOS, including trunking, access stimulation, reselling of the Plan Services, etc. All unlimited plans are subject to fair usage and the terms and restrictions of these TOS. If, for any reason, DCI believes that Your usage of the unlimited plan and services violates these TOS, then DCI may, in its sole discretion with or without notice, either terminate Your unlimited plan, suspend the Plan Services, or immediately convert Your unlimited plan to a metered plan, as set forth above.
E. Value, Ownership, and Expiration of Credits or Minutes. In no event shall any Toll-Free Minute, International Minute Credit, Billing Credit, Plan Credit, or any other type of credit or minute issued to You or applied to an Account (collectively “Account Credits”) have any monetary value or be exchangeable or exchanged for cash. Account Credits may be applied to only the Account for which they were purchased and/or provided, and may not be sold, transferred, assigned, or applied to any other Account, account, plan, or customer. Credited Toll-Free Minutes not applied to Usage of the applicable Account during the monthly billing cycle for which they are credited shall expire at the end of such cycle and shall in no event be available for application to Usage occurring during (or “roll over” to) any other period. Other Account Credits shall expire according to the terms of their purchase or provision.
5.6 Billing and Payment
A. Plan Services Fees. The initial Order sets forth the base recurring fees for the Plan Services and the number of minutes of inbound Usage of any toll-free number(s) assigned to an Account, if any, that are included in the Plan Services Fees for each monthly billing cycle. Any applicable initiation charges, monthly recurring charges, support charges, Taxes, and other fees are billed in full in advance. Termination, Usage, international minutes, equipment return fees and transfer charges, if any, are billed in arrears. Upon termination of Your Account for any reason, all unused Account Credits shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused Account Credits.
B. Taxes and Fees. All fees for Services advertised or otherwise listed on the DCI website are exclusive of any Taxes. You agree to pay all Taxes and similar liabilities that may now or hereafter be levied on the Plan Services and related software or hardware by any federal, state, provincial, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Plan Services by DCI, whether or not mandated by law or regulation. Should DCI pay or be required to pay such liabilities (including any Taxes that were due but not charged or previously collected), You agree that DCI may charge Your credit card on file or invoice You, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to DCI.
C. Billing for Mid-Year Transactions. In the event that any purchase, transaction, or event involving or resulting in an annually-incurred Plan Services amount occurs subsequent to the beginning of an annual billing cycle, DCI may at that time bill You a pro-rated amount for the remainder of the then-current cycle and thereafter bill You conterminously with each subsequent cycle.
D. Late Fees. You agree and acknowledge that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by law. DCI’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly)) shall not waive, limit, or prejudice in any way DCI’s rights to collect any amount due. DCI may terminate the Plan Services these TOS for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
E. Form of Payment. All fees and charges are payable to DCI by check, ACH, Wire or credit card or debit card. You agree to be liable for a processing fee in the amount of the lesser of: (i) thirty dollars ($30.00); or (ii) the highest amount allowed by Law for any credit card chargeback or check or other payment returned for nonpayment. When You subscribe to Plan Services, You will provide us with a payment method, such as a valid credit card or information for invoicing (if You are pre-approved by DCI in its sole discretion to be billed via invoice, and DCI reserves the right to revoke such approval and switch You to credit card billing in its sole discretion), and, if applicable, authorize us to collect from the payment method provided. Any authorization to charge a provided credit card will remain valid until thirty (30) days after You withdraw the authorization, or immediately upon provision of a replacement valid credit card. Upon termination of this Agreement, we will charge You any fees and any other outstanding charges and disconnect Your service. You agree to advise and notify us of any changes to Your payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Your Account is declined or fails for any reason, DCI will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, DCI reserves the right to disconnect Your Service and terminate Your Account if Your payment method is declined or fails for any reason, or if You withdraw authorization to charge a valid credit and do not provide an alternative payment method, and DCI reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to DCI.
F. Disputed Amounts. You will waive the right to dispute any billed amount if You do not dispute such amount within thirty (30) days of the date of its billing. If You fail to provide a written statement explaining in reasonable detail Your reasons for disputing the charge within such time period, You hereby irrevocably waive any objection and further recourse with regard to such charges. In the event that You timely dispute a billed amount and DCI confirms that You were over-billed, DCI shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be DCI’s sole and exclusive obligation and Your sole and exclusive remedy with respect to any erroneous billing. Notwithstanding the foregoing, if You request that Your bank or credit card company perform a chargeback or decline to process a check without first contacting DCI to dispute the charge, and DCI subsequently determines that the charges at issue are not erroneous, DCI reserves the right to terminate Your Account immediately and take any available legal action. You are solely liable for any transactions or usage on Your Account, whether by You, any End User, or any other user of Your Plan Services, and in no event shall DCI be liable for any unauthorized use of Your Account.
5.7 DCI Provides Access to Emergency Calling Services (911).
A. DCI provides access to emergency calling services, allowing most DCI’s VoIP users to access either basic 911 or Enhanced 911 (“E911”) service. Your access may differ depending on your location or the device you are using, and emergency calling services work differently than you may have experienced using traditional wireline or wireless telephones. It is strongly recommended that you have an alternative means for placing emergency calls available at all times.
B. DCI’s users using “IP Desk Phones” or “911-Enabled Softphones” can dial 911 directly from their IP Desk Phones or 911-Enabled Softphone. EMERGENCY CALLS CANNOT BE PLACED THROUGH SOFTPHONES THAT ARE NOT 911-ENABLED.
C. Calls to 911 placed through the DCI’s mobile application on a smartphone are automatically routed to the native dialer on the smartphone, and the call will be handled by your wireless service provider if wireless service is available. If your wireless service is unavailable, the 911 call cannot be placed. The DCI mobile application cannot place emergency calls over Wi-Fi access. Emergency dialing is not available through the DCI mobile application on tablets or other mobile devices without a native phone dialer and a wireless service plan. How it Works.
D. When a DCI user dials 911 on an IP Desk Phone or 911-Enabled Softphone, the DCI phone number and the “Registered Address” you have provided is sent to the local emergency center serving your location. Your “Registered Address” is the address of the physical location where you will use your Services. In some areas, emergency operators have access to this information; however, in areas where only basic 911 services is available, the emergency operator answering the call may not be able to see your DCI telephone number or your Registered Address.
E. You should always be prepared to provide the emergency operator with your DCI telephone number and Registered Address in case the call is dropped or disconnected. If you are unable to speak, the emergency operator may not be able to send help to your location and/or call you back should the call be disconnected. DCI does not control whether or not the emergency operator receives your telephone number and Registered Address.
C. Emergency dialing with your VoIP Service works differently than emergency dialing over traditional phone service. In some cases, 911 calls dialed from your DCI VoIP device cannot be directed to the local emergency response center, and are instead directed to a National Emergency Call Center (the “NECC”). That might happen if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network. 911 calls that are directed to the NECC may not include your DCI telephone number or your registered address. Trained operators at the NECC will request your name, location, and telephone number and attempt to reach emergency responders in your local area. Until you give the operator your phone number, and location, he/she may not be able to call you back or dispatch help to your location if the call is dropped or disconnected.
F. Service Limitations. DCI 911 service will not function in the event of an Internet or power outage, if you do not have cellular service (on the DCI mobile application), or if your broadband, ISP, or DCI VoIP service is terminated. The DCI mobile application cannot send emergency calls over Wi-Fi access. It is possible that network congestion may delay or prevent completion of a 911 call. DCI 911 service may not be available if you are dialing from a DCI number that is not a Canadian or United States number.
G. Registering Your Location. You agree to register with DCI immediately, upon activation of your “VoIP Account,” the address of the physical location where you will use the DCI VoIP Service for each “Digital Line,” including each IP Desk Phone and each 911-Enabled Softphone. This is your Registered Address. You agree that you will accurately register each individual line through your VoIP Account or the customer portal for the applicable “End User.” If you or your End Users move a registered device, you agree to immediately update the Registered Address with the new physical location of the device with DCI through the customer portal or in your account settings. You acknowledge that if you do not update the Registered Address, any 911 calls made from the device may be sent to the wrong emergency response center and will not transmit your current location information to emergency responders, delaying emergency assistance to you. It may take up to several hours for the address update to take effect. Customers with more than one line or extension are solely responsible for ensuring that an accurate and up-to-date Registered Address is maintained for each IP Desk Phone and each 911-Enabled Softphone, and that their End Users are aware of how the Registered Address can be changed.
H. Text-to-911 Services. In some areas, emergency operators are able to receive text messages sent to 911. In areas where it is available, your VoIP Service allows emergency SMS messages, also known as Text-to-911, only through the DCI mobile application. Texts to 911 by DCI users relying on the DCI’s mobile application are automatically directed to the native dialer on the mobile phone, allowing you to send the text through your wireless service provider, if available. If wireless service is unavailable, the text cannot be sent. Text-to-911 is not available on tablets or other mobile devices without a native phone dialer and a wireless service subscription.
I. Notification of Employees, Guests, or Other Users. You agree to notify any employees, contractors, guests, or persons who may place calls using DCI’S VoIP Services or may be present at the physical location where the VoIP Services may be used, of the limitations of DCI 911 service from your IP Desk Phone, other equipment, or the DCI 911-Enabled Softphone. You agree to affix a DCI-provided sticker warning that 911 services may be limited or unavailable in a readily visible place on each piece of equipment that might be used to access or use DCI’s VoIP Services. You and your End Users should always have an alternative means for placing 911 calls and/or sending text messages to 911.
Disclaimer of Liability for Emergency Call Response.
F. You acknowledge and agree that your use, and use by your employees and/or guests or other third parties, of DCI’s 911 Services and Text-to-911 Services are subject to the limitations described herein. The availability of certain features, such as transmission of a Registered Address or your DCI telephone number, depends on whether local emergency response centers support those features, and are factors outside of DCI’s control. DCI relies on third parties to assist us in routing 911 calls and text messages to local emergency response centers and to the NECC. DCI does not have control over local emergency response centers, the NECC, emergency responders, or other third parties. DCI disclaims all responsibility for the conduct of local emergency response centers, the NECC and all other third parties involved in the provision of emergency response services. Accordingly, to the extent permitted by applicable law, you hereby fully and unequivocally release, discharge, and hold harmless DCI from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of or response to any emergency or 911 call. You agree to indemnify, defend, and hold harmless DCI, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of: (i) your provision to DCI of incorrect information, including physical addresses, or your failure to update your Registered Address; (ii) your failure to properly notify any person who may place calls using the VoIP Services of the 911 limitations; or (iii) the absence, failure, or outage of emergency service dialing using the VoIP Services for any reason; and (iv) the inability of any user of the VoIP Services to be able to dial 911 or access emergency service personnel for any reason.
A. “911-Enabled Softphone” means a softphone for which the DCI 911 service is supported as identified in a popup notification within the Softphone application.
B. “Digital Line” means a digital voice line allowing the placement of external outbound calls and receipt of external direct inbound calls.
C. “End User” means the user of a virtual extension or individual Digital Line set up within a VoIP Account or an individual assigned thereto by you or by DCI at your direction or request.
D. “IP Desk Phone” means a telephony hardware device that uses VoIP to place and transmit.
E. “VoIP Account” or “Account” means the numbered account established with DCI that contains any of the following information: your true, accurate, current, and complete personal name or business name, administrator name, billing address, shipping address, the address where the Services will primarily be used, the records of your Digital Lines, subscriptions, and any Services that you have purchased from DCI. Multiple services, Digital Lines, or End Users may be included in a single account. You and your End Users shall use the VoIP Services at the Registered Address provided for the applicable Digital Line.
6. SMS Service.
6.2. Terms Applicable to the Purchase of Subscriptions to the Platform and Services.
A. Generally. To purchase access and use of the Platform and gain access to our Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence and authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (if applicable). Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangement with you, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third-party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For the specific subscription to the Platform/Services which you order, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. DCI or our third-party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please be aware that the text/SMS standard permits only 160 characters in an individual message. The submission of a seemingly-valid text/SMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid text/SMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Please be aware that the MMS standard permits only 1600 characters in an individual message. The submission of a seemingly-valid MMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid MMS message or broadcast exceeding 1600 characters will yield distinct, individually debited messages, each of 1600 characters or less, together comprising the original message. You can obtain the status of your account at any time through the online interface.
B. Subscription Term & Termination. Except in the event of a free trial offer, your subscription to the Platform (including all Services available through the Platform and otherwise) will commence as of the date your payment for a subscription is received by DCI. Your subscription (as applicable) will continue in full force for the length of the term you specifically purchased and if no specific length of time is specified will be on a month-to-month basis until such time as you cancel the subscription as further explained below and will be limited by the number of messages/month and “Keyword(s)” identified on the Website when you purchase your subscription (the “Subscription Term”). “Keywords” as used herein shall mean the creation by you of mobile text/SMS/MMS campaign through the Platform, and selection of a unique keyword (each a “Keyword”) as further described and governed in Section 6.3 below. In the event that you cancel a subscription in the middle of your Subscription Term, you will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term. DCI will have the right, upon written notice to you, to terminate these Terms, and suspend your access to your subscription to the Platform and Services, if: (a) you fail to pay DCI any amount due to DCI under these Terms; and/or (b) you materially breach any term or condition of these Terms. DCIshall have the right to terminate these Terms and immediately suspend your access to the Platform and Services and/or suspend the provision of Services for non-payment. To the extent that your credit card on file with DCI is declined for any reason, DCI reserves the right, without notice, to immediately close your account, delete any data stored in your account and re-assign Keyword(s) to other users. Upon the expiration or termination of these Terms for any reason, your access to, and use of, the Platform and Services will terminate and you will no longer be charged for continued access.
D. Auto-Renewal of Membership. Your subscription to the Platform and Services will automatically renew at the end of your Subscription Term continuously and indefinitely without action by you, and the membership fee is charged to the member at the time of renewal. To the extent your Subscription Term is on a month-to-month basis, your subscription will automatically renew one (1) month from your initial subscription date and every month thereafter until you cancel as set forth in Section 6.1.E. below. Once your fee (as posted on the Platform at time of sign-up) has been paid, you are entitled to all privileges included in the membership until the membership is cancelled by you as set forth in the paragraph below. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee, that will automatically renew, at the then current rate, unless you cancel prior to the expiration of the current Subscription Term, and any applicable taxes and service fees (collectively, “Fees”). The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your subscription or your account is suspended or terminated pursuant to these Terms. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale. The rate for the renewal Subscription Term will be the then current subscription-rate. The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan or applicable taxes, and you authorize DCI to charge your payment method for these amounts. DCI reserves the right to change the pricing of subscription at any time. In the event of a price change, DCI will post the new pricing on the Platform and attempt to notify you in advance by sending an email to the address you have registered for your account. You agree that we may change the pricing we charge you for your subscription and any Services offered in your subscription package by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise you will be deemed to have consented to the price/subscription package change and authorize DCI to charge the new Fees to your payment method. Notwithstanding anything to the contrary in these Terms, if there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify DCI within sixty (60) days after they first appear on an account statement. If DCI does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by DCI or its agents.
E. Termination/Cancellation of Subscription. You have the right and ability to cancel or otherwise upgrade/downgrade your subscription to the Platform at any time upon using the functionality available in your account settings. If you are unable to log-in to your account, you may contact DCI by email at email@example.com. Unless in the instance we offer a thirty (30) day money back guarantee, cancellation of your subscription to access the Platform and Services any time after purchase will result in forfeiture of the remainder of your subscription fee. To avoid a late cancellation fee or forfeiture of the subscription renewal fee, your subscription should be cancelled prior to the end of the then current Subscription Term. Upon cancellation or nonpayment by you, you will immediately lose access to your account, including areas of the Platform and use of our Services designated for subscribers only, any data stored in your account is immediately deleted and any of your assigned Keyword(s) may be reassigned by us to other users.
F. Refund Policy. All purchase transactions made through the Platform are subject to DCI’s refund policy in effect at the time of purchase. Currently, DCI’s refund policy is to not offer any refunds for any subscriptions purchased through the Platform, except in its sole and absolute discretion.
6.3. Keywords. The use of such Keyword in connection with the Services does not grant you ownership of such Keyword. DCI retains ownership of all Keywords made available in its Services and reserves the right to change the Keyword associated with your account at any time. In such an event, we will provide you with an alternative Keyword. DCI reserves the right to reclaim Keywords at any time and for any reason including those Keywords that have minimal usage or have not been used within the past thirty (30) days. DCI may, in its sole discretion, institute a waiting period before reissuing Keywords that have been previously assigned. Additionally, DCI may deny you the ability to upload mobile numbers to a Keyword for any reason and in its sole discretion. DCI may determine, in its sole discretion, to limit the use of the Services, add data storage limitations, charge or change fees for the Services or otherwise modify the Services in the future. You acknowledge and agree that these changes may take place and that DCI shall have no liability stemming from such changes. You agree not to create or otherwise use a Keyword that violates the Terms hereunder and as set forth in the provisions of Section 9.3 below.
6.4. Authorized User. You shall be responsible for any breach of these Terms by your employees or any other users that have been authorized by you (each, an “Authorized User”). Further, you shall: (a) be responsible for compliance with these Terms by your employees and any other users accessing the Platform and Services using username(s) and password(s) furnished to you; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Services, and notify us promptly of any such unauthorized access or use; and (c) use the Platform and Services only in accordance with applicable laws and government regulations.
6.5 Customer Content. You (on behalf of yourself and your Authorized Users) hereby grant DCI a limited, nonexclusive, non-transferable, worldwide, royalty-free license, during the Subscription Term to: (i) use and distribute any and all messages, data, text, video, photos, audio and all other materials and information (including personal information of your users) which is submitted to us or the Platform by you (or on your behalf), including, but not limited to, your trademarks, trade names and service marks (collectively, “Customer Content”) as necessary for our operation of Platform and provision of the Services; (ii) sublicense the foregoing rights to third parties; and (iii) sublicense the foregoing rights to our subcontractors as necessary to provide the Platform and Services. In addition to and without limitation to terms under the use restrictions set forth in this Section 6, DCI prohibits any use of the Platform in connection with any of the types of content, products, and services as further set forth in Section 9.3 below.
- 6. Consents and Legal Compliance for Messaging. The following terms and information constitute an introduction to the concept of spam and the general contours of a responsible, permission-based text marketing campaign. In addition, our Anti-Spam Policy applies to your use of the Platform and is incorporated into these Terms by this reference. This general information is not an exclusive source for applicable laws, guidelines, and compliance responsibilities pertaining to your use of the Platform. This Section is not intended to nor shall it be deemed to constitute legal advice. You should consult a lawyer for legal advice on your texting practices. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the Platform.
- What is spam? Spam is any type of unsolicited message. You should not assume that an existing relationship with any message recipient constitutes permission to send text messages. For example, if a customer disclosed a mobile number to you in the course of business but did not give you specific permission to send marketing messages, you may not have permission to send text messages to that mobile number. Also, some federal and state laws restrict the hours and days when marketing calls can be made. Before using the Platform, you agree to review and abide by all federal, state, and local laws, including, but not limited to, the following laws, and to check for any revisions, as they may be amended over time.
o Telephone Consumer Protection Act (“TCPA”)
o Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003
o Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging
o CTIA – The Wireless Association – Best Practices and Guidelines for Location-Based Services
For further information, please visit websites, including:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- DoNotCall Registry Info, http://www.donotcall.gov
- You represent and warrant that the owners of the phone numbers to which you transmit outbound text messages through DCI have consented or otherwise opted-in to the receipt of such messages, in accordance with the TCPA and other applicable laws and regulations. You acknowledge that you are solely responsible for all acts or omissions or violations of law that may occur in connection with your use of DCI’s Platform or Services.
- The Platform may allow you the ability, at DCI’s discretion, to upload previously opted in mobile numbers to Keywords on the Platform. You acknowledge and agree that you shall have sole responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern these previously opted in mobile numbers, even if you should use any mobile alert terms and conditions we make available through the Platform.
- You agree that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Platform. Additionally, you agree not to send messages to your users beyond the frequency represented in any disclosures or terms.
- You agree that you will import, add, edit, access and otherwise use in connection with the Platform only contact information with proof, which you shall retain, of each user’s consent to receive communications from you. We reserve the right, at our sole and absolute discretion, to suspend or deny access to import functions, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of your or your organization’s legal identity.
- You agree to represent truthfully your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.
- You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your content or promotion type.
DCI maintains a no-tolerance policy toward spam. Although DCI does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages Field Code Changed created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Website and Services. All mobile marketing messages must conform to the latest available best-practice guidelines published by the Mobile Marketing Association (currently available at http://www.mmaglobal.com/policies/consumer-best-practices), which you agree to review before using the Platform. For example, and without limitation, these guidelines may recommend “STOP” instructions. The Platform provides mandatory STOP instructions on your first welcome message and prepopulates STOP instructions for subsequent messages. You are solely responsible for any claims or incidents that may result from your removal of these STOP instructions. If a user replies to a text message you send through the Platform with messages other than STOP instructions, they will appear in your inbox. You are solely responsible for monitoring messages received in your inbox. You agree that any individuals requesting “Do-Not-Call” (“DNC “) status shall immediately be placed on your company DNC list and except as otherwise noted above, DCI shall have no other responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or stop request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that DCI merely provides a platform for facilitating the sending of your text messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless DCI from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators. We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services for any alleged violation of this Section 6 and/or any unusual or suspicious activity related to your account.
6.7. Support and Customer Service. Except as otherwise provided herein, DCI will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, internet service provider failures or delays, or denial of service attacks. If you have a question regarding using the Platform or Services, you may contact us via email at firstname.lastname@example.org. You acknowledge that the provision of customer support is at DCI’s sole discretion and that we have no obligation to provide you with customer support of any kind.
A. Wireless Features. The Platform may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Platform’s features and upload content to the Platform, receive messages from the Platform, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Platform and you will be responsible for all charges related to them. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Platform for Wireless Features, then you agree to notify DCI of any changes to your wireless contact information (including phone number).
6.9. Operation of Platform; Availability of Services; International Issues. DCI controls and operates the Platform and provides the Services from its California based offices in the U.S.A., and DCI makes no representation that the Platform or Services are appropriate or available for use beyond the U.S.A. If you use the Platform and Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Platform may describe services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Platform, Services and/or the provision of any content, program, product, service, or other feature described or available on the Platform to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
E. Export Controls. Software related to or made available by the Platform may be subject to export controls of the U.S.A. No software from the Platform may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or Services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user, subject to U.S. export controls, including as set forth in subsections (i) – (iii) immediately above.
7. General Terms for All Services
7.1 Use of Services. DCI grants you a limited, non-exclusive, non-transferable right of use to the Services subject to your compliance with this User Agreement and as further described in Section 8. In exchange for your payment, DCI will provide you a right of use to the applicable Service in accordance with this User Agreement subject to availability. We make no representation that any of the Services are available for use in any particular location. To the extent you choose to access a Service, you do so at your own initiative and are responsible for compliance with any applicable laws. We reserve the right to change, suspend, remove, or disable access to any Service at any time without notice. In no event will we be liable for the removal or disabling of access to any Service. We may also impose limits on the use of or access to any Service without notice or liability.
7.2 Your Device. You are responsible for all actions that take place as a result of access to or use of any Service and your Account whether the access was made by you or by a third party using the Service, your Account, or your mobile or landline phone (your “Device”). If your Device is stolen or if you become aware of unauthorized use of any Service you must notify us immediately to suspend the Service. You are responsible for all usage of the Services and charges until the Service is suspended. You are responsible for preventing the unauthorized use of your Service, and you are responsible for any reduction in value of your Account arising out of either authorized or unauthorized use.
7.3 Prohibited Uses. You expressly agree to use the Services, the Website and the App solely for lawful purposes. You agree not to use any of the Services, the Website or the App for any unlawful, abusive, or fraudulent purpose, including without limitation:
- interfering with our ability to provide the Services to you or to other customers;
- violating applicable law, this User Agreement or DCI’s Rewards Program Terms and Conditions;
- avoiding your obligation to pay for the Services;
- using the Services other than for personal, consumer or business use (as applicable);
- intercepting any communication which is not intended for you;
- sending any unsolicited commercial communication; or
- submitting or exposing to any third party any material that infringes any third party’s intellectual property rights or violates the rights of any third party, is offensive, defamatory, racist, pornographic, illegal, harmful to minors, indecent or is otherwise objectionable in DCI’s sole discretion. Furthermore, you agree not to use the Services, the Website or the App in any way that: (i) could damage, disable or overburden any DCI server or facility, or the networks connected to any DCI server or facility, (ii) interferes with any other party’s use and enjoyment of the Services, or (iii) could damage DCI’s business, reputation or employees. You agree not to resell or commercialize any of the Services whether for profit or otherwise.
7.4 Submission of Information to DCI. If you send any messages or post any information to DCI on the Website, with or through the Services, through social media third party sites or otherwise provide feedback to DCI, you are granting DCI a royalty-free, world-wide, transferable, sub-licensable, perpetual, irrevocable license to use the information in the course of offering the Services. Furthermore, DCI retains the right to reformat, excerpt, or translate any information or materials submitted by you to DCI. DCI reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove or restrict any information or materials, in whole or in part, in DCI’s sole discretion.
7.5 No Warranties. You expressly acknowledge that (a) your use of the Services, Platform, the Website, the App and any content therein (collectively, “Content”) is at your sole risk and (b) the Services, Platform, Website, App and all Content are provided “AS IS” and “AS AVAILABLE” with no warranties of any kind. DCI does not make any warranties, claims or representations to you or to any third party, whether express, implied or statutory, regarding the Services, Platform, Website, App, Content or the telecommunication services underlying the Services or any DCI product associated with the Services, including, without limitation, warranties or conditions of quality, performance, suitability, durability, title, non-infringement, merchantability, completeness of fitness for use for a particular purpose. All such warranties are hereby expressly excluded and disclaimed and you hereby waive and release DCI from all such warranties of any nature, including, but not limited to, whether the Services or Platform constitute an automatic telephone dialing system (“ATDS”), as such term is used in the TCPA. Without limiting the foregoing, DCI makes no warranty or representation that the Services, Platform, Website, App, Content or the telecommunication services underlying the Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete or error free or free of viruses or other harmful components or that any defects will be corrected. DCI does not warrant any quality of calls made through the Services. DCI may choose not to provide Services to countries or calling areas at its sole discretion. The Services do not include the connection from your Device or network to our network. We do not authorize anyone, including but not limited to DCI agents and employees, to make any warranties on our behalf and you should not rely on any such statements. Because some jurisdictions do no permit the exclusion of certain warranties, these exclusions may not apply to you. For the purposes of this paragraph, “DCI” includes our parent companies, subsidiary companies and affiliated legal entities and all their directors, shareholders, officers, agents, licensors and employees. This provision will continue to remain in force after this User Agreement expires or is otherwise terminated. Since the Services will be transmitted through public Internet lines and the public switched telephone network, you acknowledge that there may be power outages or Internet service disruptions and you may experience some disruptions in the Services (e.g., packet loss and delay). Additionally, you also understand that calls to or from the public switched telephone network are not encrypted and as such, could be potentially subject to eavesdropping by law enforcement officials or other third parties over the public Internet. DCI will not be liable for any disruption, delays, eavesdropping or other omissions in the Services. DCI takes no responsibility for any disruption, interruption or delay in the Services caused by any failure of or inadequacy in any items over which it has no control.
7.6 Suspension of Service. DCI may immediately suspend, cancel, modify or restrict the Services or your use of the Services and/or your Account, all without advance notice or liability, if:
- you violate this User Agreement or DCI’s Rewards Program Terms and Conditions;
- we reasonably believe that you or someone else (through your User Profile or Account) is fraudulently or unlawfully using the Services, including fraudulent calling patterns, excessive usage or billing irregularities;
- we reasonably believe that you or someone else (through your User Profile or Account) is abusing the Services, including misuse of service promotions;
- your form of payment for the Services is cancelled, disabled, discontinued or otherwise dishonored after funding;
- DCI needs to perform maintenance on or upgrade the Services, Website, App or the underlying infrastructure that enables you to use the Services, Website or App (you will not be entitled to claim damages for any such suspension or limitation of use); or
- there is a determination by any governmental authority that the provision of any of the Services is contrary to any law, rule or regulation.
You hereby agree to pay any and all outstanding charges for the Services and to reimburse us for any reasonable cost we incur in securing your payment, including, but not limited to, attorneys’ fees, court fees, and any other collection-related cost. We may impose restrictions on the form of payment you may use and/or may refuse to provide the Services to you, if any of your previous payments have failed to result in DCI’s receipt of the entire amount payable to us in connection with such payment. You, and not DCI, are solely liable and responsible for paying any unauthorized amounts billed to your credit card or account by a third party, and in no event, shall DCI be liable for any unauthorized use of the Services.
7.7 Communication. The content of the communications made using the Services is entirely the responsibility of the person from whom such content originated. You may be exposed to content that is offensive, harmful, indecent or otherwise objectionable. DCI will not be liable for any type of communication spread by means of the Services.
7.8 Indemnification. You agree to indemnify, release and hold DCI harmless from any and all liability, losses, damages or claims of any kind resulting from or arising out of your (a) use of the Services, Platform, Website, App and Content, (b) breach of this User Agreement, (c) violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services, Platform, Website, App, Content or your activities in connection therewith and/or (d) violation of another person’s or entity’s rights. In addition, you agree that DCI shall not be responsible for any third-party claims against you that arise from your use of the Services, Platform, Website, App and Content and you agree to reimburse DCI for all costs and expenses related to the defense of any such claims, including reasonable attorneys’ fees, unless such claims are based upon our intentional misconduct. This section will survive the expiration or termination of this User Agreement. For the purposes of this paragraph, “DCI” includes our parent companies, subsidiary companies and affiliated legal entities and all their directors, shareholders, officers, agents, licensors and employees.
7.9 Limitations of Liability. DCI is not liable to you or to any third party for any costs, liabilities or damages arising either directly or indirectly from any cause, action or claim relating to the Services, Platform, Website, App, Content and/or the telecommunication services underlying the Services, including without limitation any personal injury, actual, incidental, consequential, exemplary, punitive, reliance or special damages, or for any claims for loss of revenue, lost profits, lost use, data, or goodwill or for lost business opportunities of any kind or nature whatsoever. These limitations apply even if the damages were foreseeable or we were told that they were possible, and these limitations apply whether the claim is based upon contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory. DCI is not liable for failures, outages, interruptions, equipment failures or acts or omissions of third parties regarding or related to the Services. DCI will not be liable for any damages if the telecommunication services underlying the Services are interrupted, or if there is a problem with the interconnection of the Services with the service, products or equipment of some other party. This section will survive the expiration or termination of this User Agreement. Because some jurisdictions do not permit these exclusions or limitations, DCI’s liability in such jurisdictions shall be limited to the extent permitted by law. For the purposes of this paragraph, “DCI” includes our parent companies, subsidiary companies and affiliated legal entities, and all their directors, shareholders, officers, agents, licensors and employees. Notwithstanding anything in this User Agreement to the contrary and should any provision of this User Agreement limiting DCI’s liability not be enforced, DCI’s total liability to you in connection with this User Agreement shall not exceed in the aggregate the amount paid by you for the applicable Service in the 12-month period immediately prior to the date of the event giving rise to the claim, subject to a maximum of $1,000.00 in all cases.
7.10 Accounting Errors. If you believe that DCI has charged you in error, you must submit a written request for a refund by contacting Customer Service by mail or email to email@example.com within 90 days after the date the error first appears in your Account or within 120 days after the error occurred, whichever is the earlier. No refunds will be given for any charges beyond these time limits.
7.11 Promotional Offers and Discounts. From time to time in its sole discretion, DCI may offer a free for a trial period or offer other promotions related to the Services. DCI reserves the right to restrict these promotional offers to certain users, or place other restrictions or conditions on such offers. DCI also reserves the right to stop any promotional offer or to prohibit a user from continuing to use the Services if DCI determines that a user is abusing the terms of the offers. DCI reserves the right to expire and remove any promotional balance from Accounts with no usage for one year or more. Any promotion or discount codes must be provided to DCI upon purchase of the Services. You are not entitled to a subsequent credit for any promotions or discounts if you do not request the promotion or discount credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or retroactively.
7.12 Termination. You may terminate your relationship with DCI by ceasing to use the Services, Website and App and cancelling any recurring payments/subscriptions by providing at least three (3) business days prior notice/request to the term renewal, VoIP Service excepted. For termination notice requirement of the VoIP Service please refer to Section 5.1.E. above. DCI may terminate its relationship with you, or may terminate or suspend your use of the Services, Website, App and/or your Account at any time if:
- if you violate this User Agreement or DCI’s Rewards Program Terms and Conditions;
- if we reasonably suspect that you (or your affiliate) are reselling the Services to others;
- if we reasonably suspect that you are using the Services, Website, App, or your Account to break the law or infringe a third party’s rights;
- if we reasonably suspect that you are trying to unfairly exploit or misuse any of our policies;
- if we reasonably suspect that you are using the Services, Website or App fraudulently or that your Account is being used fraudulently by a third party;
- use of the Services by you or End Users/Authorized Users, as the case may be, disrupts or poses a security risk to the Service(s), may harm DCI’s systems or may subject DCI or any third-party to liability;
- on 30 days’ notice;
- immediately if required due to a change in any applicable law or by any of DCI’s partners; or
- on 30 days’ notice if we decide to cease offering the Service you use to users in your jurisdiction generally. Upon termination: (a) all licenses and rights to use the Services, Website, App and Account shall immediately terminate; and (b) you will immediately cease any and all use of the Services, Website, App and your Account. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this User Agreement for all purposes.
- User License and Restrictions
8.2 DCI’s IP Rights. You agree that all rights, title and interest in and to all Intellectual Property in the Services, any software or hardware used in conjunction with the Services, and any materials provided in connection with the Services are owned exclusively by DCI or its licensors. Except as expressly provided herein, the limited license granted to you under the Services does not convey any ownership or other rights, express or implied, in the Services, any materials provided in connection with the Services, or in any Intellectual Property.
8.3 Use and Disclosure of Intellectual Property. You represent, warrant, covenant and agree that you shall not disclose or use any of the Intellectual Property in the Services, any software or hardware used in conjunction with the Plan Services, or any marketing materials for any purpose following termination of the Services or the limited license granted thereunder to use the Services. You further represent and warrant that neither you nor any End User shall reverse engineer, disassemble or decompile any prototypes, software or other tangible object which embody DCI’s (or its licensors) Intellectual Property.
8.4 New Versions of the Software. DCI, in its sole discretion, reserves the right to add, remove, or modify features or functions, and to provide fixes, updates and upgrades to the Services without notification to you. You acknowledge and agree that DCI has no obligation to make available to you any subsequent versions of the Services; provided, however, DCI shall make available to you any such features, functions, fixes, updates and upgrades and subsequent versions of the Services that DCI makes generally available at no additional charge to customers who subscribe to the same edition and/or plan of the Services purchased by you. Additionally, you and DCI acknowledge that no third-party has any obligation whatsoever to furnish maintenance or support services with respect to the Services and that DCI is solely responsible for the provision of maintenance and support as provided in this User Agreement and to the extent such maintenance and support is required under applicable law.
8.5 Publicity Rights. You agree that DCI may identify you as a user of the Services in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on DCI’s website, or any other third-party website where DCI or its designated agents may promote the Services. You hereby grant DCI and its agents an irrevocable, perpetual, worldwide, nonexclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
9.1 Website Transactions. We reserve the right to refuse any order or transaction you place with us. We may, in our sole discretion, limit or cancel transactions on a per person, per household, per telephone number or per order basis. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel a transaction, we will attempt to notify you by contacting the e- mail and/or billing address/phone number provided at the time the transaction was made. We reserve the right to limit or prohibit transactions that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
9.2 Right to Change Website. We reserve the right, at any time in our sole discretion, to: modify, suspend or discontinue the Website or any Service, content, feature or product offered through the Website, with or without notice; charge fees in connection with the use of the Website; modify and/or waive any fees charged in connection with the Website; and/or offer opportunities to some or all users of the Website. You agree that we shall not be liable to you or to any third party for any such actions.
9.3 Rules of User Conduct. You (and on behalf of your End User) expressly acknowledge and agree not to use the Services or Website for any unlawful, abusive, or fraudulent purpose and to abide by all of DCI’s rules of user conduct. You agree that by (a) using the Website, Platform, or any Service or (b) posting information in or otherwise using any communications service, chat room, virtual television channel, message board, newsgroup, software library, or other interactive service that may be available to you on or through the Website, you will not upload, post, or otherwise distribute or facilitate the distribution of any content (including text, communications, software, images, sounds, data, or other information) that:
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates the User Agreement;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
- pyramid schemes or multilevel-marketing (also known as MLM or network marketing) businesses, including, but not limited to, “get rich quick,” “build your wealth,” and “financial independence” offerings;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, unsolicited text or SMS messages, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- telemarketing involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage;
- contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
- impersonates any person or entity, including any employee or representative of DCI. You also agree that you will not harvest or collect information about the users or members of the Website or use such information for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic email or other forms of communication. You further agree that you will not knowingly solicit or collect personal information from a child thirteen years old or younger without appropriate prior verifiable parental consent. DCI generally does not pre-screen, monitor, or edit the content posted by users of communications services, chat rooms, message boards, newsgroups, software libraries, or other interactive services that may be available on or through the Website. However, DCI and its agents have the right at their sole discretion to remove any content that, in our judgment, does not comply with the terms of the User Agreement or is otherwise harmful, objectionable, or inaccurate. DCI is not responsible for any failure or delay in removing such content.
9.4 Intellectual Property. The DCI and Multicomm name and associated logos, the software and technology underlying the Multicomm platform, and all registered or unregistered trademarks, service marks, logos, patents, patent applications, proprietary information, registered or unregistered copyrights and all other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with the Services, the App, the Website and the Multicomm platform and the products or services now or hereafter owned, created or provided by DCI (collectively, the “DCI IP”), are owned, controlled or licensed by DCI. In addition, all materials on the Website or in the App, including text, images, illustrations, designs, icons, photographs, video clips and other materials, and the copyrights, trademarks, trade dress and/or other intellectual property in such materials (collectively, the “Web Content”), are owned, controlled or licensed by DCI. You have no rights in or to the DCI IP or the Web Content and you may not use the DCI IP or the Web Content in any manner without the prior written consent of DCI. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the DCI IP or the Web Content. The DCI IP and the Web Content are intended to promote DCI’s products and services available in the United States. One or more patents may apply to the Website, the App or the Services.
9.5 Third Party Sites. The Website, Platform, or Services may produce automated search results or otherwise link you to other sites on the Internet. These other sites are not under the control of DCI or its affiliates and you acknowledge that neither DCI nor its affiliates are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such other sites and delivery of any services in connection therewith. These sites may contain information or material that some people may find inappropriate or offensive. The inclusion of such a link does not imply endorsement of the site by DCI or any association with its operators, and DCI disclaims all liability in connection therewith.
9.6 Procedure for Making Claims of Copyright Infringement. DCI, its subsidiaries and affiliate companies respect the intellectual property of others, and we ask our content providers and those posting materials to the Website to do the same. If you believe that your copyrighted work has been copied and is accessible on the Website in a way that constitutes copyright infringement, please let us know right away by providing our copyright agent with the following information:
- the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
- a description of the copyrighted work that you claim has been infringed and a description of the infringing activity;
- identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published;
- identification of the URL or other specific location on the Website where the material that you claim is infringing is located (you must include enough information to allow us to locate the material);
- your name, address, telephone number, and email address;
- statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our agent for notice of claims of copyright infringement on the Website can be reached as follows:
c/o Digital Comm Inc.
2331 W. Lincoln Avenue, Suite 100
Anaheim, California 92801
Attn: Carlos Humphrey
9.7 User Submissions. DCI is pleased to hear from users and welcomes your comments regarding our Services. Our company policy does not allow us to accept or to consider creative ideas, suggestions, proposals, plans, or other materials other than those we have specifically requested. We hope that you will understand that the intent of this policy is to avoid the possibility of future misunderstandings when projects developed by DCI or its employees and agents might seem to be similar to creative works submitted by users. Accordingly, while we value your feedback, we must ask that you do not send creative ideas, suggestions, proposals, plans, or other materials for our business. If, at our request, you send certain specific submissions (for example sweepstake entries) or without out a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that DCI may, at any time, without restriction, edit, copy, publish, distribute, translate, display, perform and otherwise use in any medium any Comments. DCI is and shall be under no obligation (a) to maintain any Comments in confidence, (b) to pay compensation for any Comments or (c) to respond to any Comments. DCI has the right but not the obligation to monitor and edit or remove any Comments. You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead DCI or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. DCI takes no responsibility and assumes no liability for any Comments posted by your or any third party.
9.8 International Use. DCI makes no representation that materials on the Website are appropriate or available for use in locations outside the United States. Accessing such materials from territories where their content is illegal is prohibited. Those who choose to access the Website from other locations do so on their own initiative and are responsible for compliance with local laws.
9.9 Termination. DCI reserves the right, in its sole discretion, to terminate a person’s access to all or part of the Website, with or without notice.
- General Provisions
10.1 Charges/Taxes. You are responsible for paying all charges for your Account, including but not limited to toll-free, local, long distance, international minutes, additional feature charges, 411 and operator assisted charges, directory assistance charges, and for all Taxes, surcharges, and fees imposed on your Account or us as a result of your use of the Service(s). Customers with a past due balance on previous or multiple accounts will be charged the full balance, including but not limited to any Taxes or Fees as defined in this User Agreement, any late fees, service change fees, and fees for chargebacks or returned checks, upon opening a new account or updating their credit card information on file.
10.2 Electronic Communications. Unless otherwise required by applicable law, you authorize DCI to send or provide the following categories of information (“Communications”) by electronic means and not in paper format: (a) this User Agreement and any amendments, modifications or supplements to it; (b) your purchase and use records regarding Service transactions; (c) any initial, periodic or other disclosures or notices provided in connection with the Services, including without limitation those required by U.S. federal, state, local or other applicable law; (d) any customer service communications, including without limitation, communications with respect to claims of error or unauthorized use of the Services; and (e) any other communication related to the Services, a transaction or DCI. Electronic means may include email, SMS/MMS, App to App, text, push notification through the App, Website chat with customer service, or posting in the App or on the Website. Message and data rates may apply when you receive SMS/MMS, text or push notification messages on your mobile phone. You may withdraw your consent to receive all Communications electronically (except for App to App messages from DCI) at any time. In order to withdraw your consent, you must contact us. In order to access and retain Communications, you must have: (i) an Internet browser that supports 128-bit encryption, (ii) a mobile number and the capability to receive messages from or on behalf of DCI, and (iii) a device and data or Internet connection capable of supporting the foregoing.
10.3 Consent to Receive Messages. By using any of the Services, you consent to receive SMS/MMS, push notifications through the App, App to App messages, text messages and/or email messages from DCI and its affiliates regarding account management activities and special offers. This consent is specific to the phone number(s) you provide to us to use the Services and open accounts. Message and data rates may apply when you receive SMS/MMS, text or push notification messages on your mobile phone. You may refuse to consent to receive calls and texts from DCI and its affiliates that require your consent, including autodialed, pre-recorded or artificial voice telemarketing calls. You may also withdraw your previously given consent to receive such calls and texts. Your ability to manage and use certain features of the Services could be limited if you refuse or withdraw your consent to receive these messages.
10.4 No Third Party Rights. The provisions of this User Agreement are for the benefit of you and DCI and not for the benefit of any third party.
10.5 Acts Beyond Our Control. DCI will not be in breach of this User Agreement or responsible for any failure in performance, loss or damage that it is due to any event beyond our reasonable control, including without limitation, fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers and acts of regulatory or governmental agencies (“Force Majeure”). If applicable with respect to the VoIP Service only, in the event that a Force Majeure prevents a party’s performance for more than forty-five (45) consecutive days, either party may terminate the particular agreement document(s) impacted, provided you shall pay amounts owed to DCI for the Services, if any, prior to such termination date.
10.6 Subcontractors. You acknowledge that in the rendition of the Services hereunder, from time to time, DCI may engage third-party suppliers and other vendors and subcontractors (collectively, “Subcontractors”), to provide certain services. DCI shall supervise such services and endeavor to guard against any loss to you as the result of the failure of Subcontractors to properly execute their commitments, but DCI cannot guarantee any Subcontractors’ performance, and therefore, DCI disclaims and shall not be responsible for Subcontractors’ failure, acts, or omissions.
10.7 Assignment. This User Agreement is personal to you and you may not assign or transfer it or your rights or obligations to any other person without DCI’s prior consent. We can assign all or part of our rights or duties under this User Agreement without prior notice. If we elect to make such an assignment, we will have no further obligations to you under this User Agreement or in connection with your purchase or use of the Services.
10.8 Notices. Any notice from DCI or Multicomm to you under this User Agreement will be provided by one or more of the following: posting on the Website, a recorded IVR announcement while using a Service, SMS/MMS text, email or a call to a telephone number provided by you. You may contact DCI either by phone or by mail as follows:
c/o Digital Comm Inc.
2331 W. Lincoln Avenue, Suite 100
Anaheim, California 92801
10.9 Severability. If any part of this User Agreement is found invalid, the rest of the User Agreement will remain valid and enforceable.
10.10 Governing Law. This User Agreement will be governed by the law of the State of California, without regard to its choice of law rules. This governing law provision applies no matter where you reside, or where you use, purchase or pay for the Services.
10.11 Entire Agreement. This User Agreement constitutes the entire agreement between you and DCI regarding the Services covered hereby, the Website and the App and supersedes all prior agreements, understandings, statements or proposals, and representations, whether written or oral between you and DCI regarding the same. No written or oral statement, advertisement or service or product description not expressly contained in this User Agreement, the Website or in the App will be allowed to contradict, explain, or supplement this User Agreement or any of the Services. Neither you nor DCI is relying on any representations or statements by the other party or any other person that is not included in this User Agreement.
10.12 Survival. The provisions of this User Agreement that explicitly or by their nature survive or are intended to survive termination or cancellation shall so survive.
10.13 Waiver. The failure by DCI to exercise, or delay in exercising, a legal right or remedy provided by this User Agreement or by law shall not constitute a waiver of DCI’s right or remedy. If DCI waives a breach of this User Agreement in writing, the waiver shall not operate as a waiver of a subsequent breach of the User Agreement.
10.14 Disputes. Except for DCI’s claim with respect to its intellectual property rights, all disputes arising out of or related to this User Agreement, the Website, the App and/or the Services (regardless as to whether the dispute is based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory) shall be submitted to the American Arbitration Association (“AAA”) for final and binding arbitration. The arbitration will be conducted under the AAA Arbitration Rules for the Resolution of Consumer-Related Disputes Commercial Arbitration Rules (“AAA Rules”), as such rules are in effect on the date of commencement of the arbitration and as such rules are modified by this User Agreement. Notwithstanding anything in the AAA Rules, the arbitration shall be held in Orange County, California. The arbitration will be based only on the written submissions of the parties and documents submitted to the arbitrator, unless the parties agree or the arbitrator orders otherwise. The arbitrator will determine any controversy over whether an issue is subject to arbitration. Any court of competent jurisdiction may confirm or enforce the award. Unless otherwise provided for in the AAA Rules or in the arbitration award, DCI and you will divide equally all other administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator. Each party will bear the cost of preparing and presenting its own case. Each dispute will be arbitrated on an individual basis and will not be consolidated in any action with the disputes or claims of other consumers or customers. No dispute or claim may be brought by you as a class action or as a private attorney general, and you will not have the right to act as a class representative or participate as a member of a class of claimants with respect to any dispute or claim related to this User Agreement, the Website, the App or the Services. Any dispute or claim arising out of or relating to this User Agreement, the Website or the Services must be brought within two years after the date on which the basis for the dispute or claim first arises or the period of time provided by statute. Notwithstanding the foregoing, small claims matters shall be excluded from binding arbitration as provided herein and shall be brought in small claims of competent jurisdiction.
10.15 Equitable Relief. You agree that any breach of DCI’s Intellectual Property rights will cause DCI irreparable harm for which monetary damages will be inadequate and DCI may, in addition to other remedies available at law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement. If you claim that you have incurred any loss, damages, or injuries in connection with your use of any of the Services, then the losses, damages, and injuries will not be irreparable or sufficient to entitle you to an injunction or to other equitable relief of any kind. This means that, in connection with your claim, you agree that you will not seek, and that you will not be permitted to obtain, any court or other action that may interfere with or prevent the development or exploitation of any website, application, content, product, service, or intellectual property owned, licensed, used or controlled by DCI or a licensor of DCI.10.16 Consumer Notice. The following specific consumer rights notice is hereby provided under California Civil Code Section 1789.3 to California customers and users of the Products: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at (916) 445-1254.
10.17 Changes to Agreement. DCI may in our sole discretion change the terms of this User Agreement or the information on the Website from time to time with or without notice. Please review the User Agreement on a regular basis. By continuing to use a Service, the Website or the App after publication of the change, you agree to the change and the updated User Agreement.
10.18 Translation. For your convenience, DCI may provide you with a translation of the English language version of some or all of the various parts of the User Agreement. However, the meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. If there is any inconsistency between a non-English version and the English version, then the English version shall govern your relationship with DCI. Any translation provided may not accurately represent the information in the original English version.
10.19 Security. Unfortunately, scams and fraudsters are abundant and we urge you to be cautious of deals or offers that seem too good to be true. If you think you have been or might be a victim of fraud, or if you are aware of anyone or any entity that is using the Services inappropriately, please contact us.
10.20 Last Updated. This User Agreement was last updated as of the first date written above.