Terms and Conditions of Service (version 2 published 5/2/2018).
Definitions
“Avid” shall be Avid Communications, L.L.C.
”Customer” as defined in the Master Service Agreement.
“End User” shall be any person who uses the Services provided by Avid to the Customer, whether or not that person is employed by or acting as an agent of the Customer and whether or not that person is authorized by the Customer to use the Services.
“Master Service Agreement” (the “MSA”) is the contract between the Customer and Avid that specifies general and other terms which apply to all the Services ordered by the Customer.
“Services” as defined in the MSA.
“Service Order” shall be the contract or contracts between the Customer and Avid that specify in detail the Services ordered by the Customer, as well as the rates and other terms and conditions that apply to the Services listed on that Service Order, including the length of the term commitment.
Indemnification
Avid Communications, LLC (“Avid”) shall not be liable for any claims for loss or damages involving:
- Any act or omission of: (a) the Customer, (b) any other entity furnishing service, equipment or facilities for use in conjunction with Services or facilities provided by Avid, or (c) common carriers or warehousemen;
- Any delay or failure of performance or equipment due to causes beyond Avid’s control, including, but not limited to, acts of God, fires, floods, earthquakes, hurricanes, or other natural catastrophes; national emergencies, insurrections, wars or other civil commotion; strikes, lockouts, work stoppages or other labor diffculties; criminal actions taken against Avid; unavailability, failure or malfunction of equipment or facilities provided by the Customer or third parties; and any law, order, regulation or other action of any governing authority or agency thereof;
- Any unlawful or unauthorized use of Avid’s facilities and Services;
- Libel, slander, invasion of privacy or infringement of patents, trade secrets, or copyrights arising from or in connection with the transmission of communications by means of Avid-provided facilities or Services, or by means of the combination of Avid-provided facilities or Services with Customer-provided facilities or services;
- Breach in the privacy or security of communications transmitted over Avid’s facilities;
- Changes in any of the facilities, operations or procedures of Avid that render any equipment, facilities or services provided by the Customer obsolete, or require modification or alteration of such equipment, facilities or services, or otherwise affect their use or performance, except where reasonable notice is required of Avid and is not provided to the Customer, in which event Avid’s liability is limited as set forth in these Terms and Conditions or in the MSA;
- Defacement of or damage to Customer premises resulting from the furnishing of Services or equipment on such premises or the installation or removal thereof;
- Injury to property or injury or death to persons, including claims for payments made under Workers’ Compensation law or under any plan for employee disability or death benefits, arising out of, or caused by, any act or omission of the Customer, or the construction, installation, maintenance, presence, use or removal of the Customer’s facilities or equipment connected, or to be connected, to Avid’s facilities;
- Any intentional, wrongful act of a Avid employee when such act is not within the scope of the employee’s responsibilities for Avid and/or is not authorized by Avid;
- Any representations made by Avid employees that do not comport, or that are inconsistent, with the provisions in these Terms and Conditions or in the MSA;
- Any act, omission or network condition resulting in the non-availability of 911, E911, or similar services for any reason including, without limitation and by way of example only, due to any failure of Avid’s system, interruption of the Customer’s high-speed Internet service or interruption of electric service to Customer’s premises;
- Any non-completion of calls due to network busy conditions or network failures;
- Any calls not actually attempted to be completed during any period that Service is unavailable;
- Blockages by other providers of services on the public switched network.
Avid shall be indemnified, defended and held harmless by the Customer or End User from and against any and all claims, loss, demands, suits, expense, or other action or any liability whatsoever, including attorney fees, whether suffered, made, insinuated, or asserted by the Customer or by any other party, for any personal injury to or death of any person or persons, and for any loss, damage or destruction of any property, including environmental contamination, whether owned by the Customer or by any other party, caused or claimed to have been caused directly or indirectly by the installation, operation, failure to operate, maintenance, presence, condition, location, use, or removal of any Avid or Customer equipment or facilities or Service provided by Avid.
Avid assumes no responsibility for the availability or performance of any cable or satellite systems or related facilities under the control of other entities, whether or not affiliated with Avid, or for other facilities provided by other entities used for Service to the Customer, even if Avid has acted as the Customer’s agent in arranging for such facilities or services. Such facilities are provided subject to such degree of protection or non-preemptibility as may be provided by the other entities.
Except as otherwise stated in these Terms and Conditions, any claim of whatever nature against Avid shall be deemed conclusively to have been waived unless presented in writing to Avid within thirty (30) days after the date of the occurrence that gave rise to the claim.
Avid is not liable for any errors and omissions in local directories. In cases where a specific charge has been made for a directory listing, Avid shall not be liable for any such error or omission beyond the amount of such charge.
Avid makes no warranties or representations, express or implied either in fact or by operation of law, statutory or otherwise, including warranties of merchantability or fitness for a particular use, except those expressly set forth herein.
Avid will not be liable for any charge incurred when any long distance (Toll Call) carrier or alternative operator service provider accepts third-number billed or collect calls.
Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE,INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
Liability of Avid
Except as otherwise stated in this Agreement, liability of Avid for damages arising out of either (1) the furnishing of its Services, including, but not limited to, mistakes, omissions, interruptions, delays, or errors, or other defects, representations, or use of these Services, or (2) the failure to furnish its Service, whether caused by acts or omission, shall be limited to the extension of allowances to the Customer for interruptions in Service as set forth in “Interruptions of Service”, following.
Except for the extension of allowances to the Customer for interruptions in Service, following, Avid shall not be liable to a Customer or third party for any direct, indirect, special, incidental, reliance, consequential, exemplary or punitive damages, including, but not limited to, loss of revenue or profits, for any reason whatsoever, including, but not limited to, any act or omission, failure to perform, delay, interruption, failure to provide any Service, including the inability to access emergency 911 services during any such failure, or any failure in or breakdown of facilities associated with the Service.
The liability of Avid for errors in billing that result in overpayment by the Customer shall be limited to a credit equal to the dollar amount erroneously billed or, in the event that payment has been made and Service has been discontinued, to a refund of the amount erroneously billed.
Service Availability
Avid will provide the Customer reasonable notification of Service-affecting activities that may occur in normal operation of its business. Such activities may include, but are not limited to, equipment or facilities additions, removals or rearrangements and routine preventative maintenance. Generally, such activities are not specific to an individual Customer but affect many Customers’ Services. No specific advance notification period is applicable to all Service activities. Avid will work cooperatively with the Customer to determine the reasonable notification requirements. With some emergency or unplanned Service-affecting conditions, such as an outage resulting from a loss of power or cable damage, notification to the Customer may not be possible.
Provision of Equipment and Facilities
Avid shall use reasonable efforts to make available Services to a Customer on or before a particular date, subject to the provisions of and compliance by the Customer with the regulations contained in this Agreement. Avid does not guarantee availability by any such date and shall not be liable for any delays in commencing Service to any Customer.
Avid shall use reasonable efforts to maintain only the facilities and equipment that it furnishes to the Customer. The Customer may not, nor may the Customer permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise interfere with any of the facilities or equipment installed by Avid, except upon the written consent of Avid.
Avid may substitute, change or rearrange any equipment or facility at any time and from time to time, but shall not thereby alter the technical parameters of the Service provided to the Customer.
Equipment Avid provides or installs at the Customer’s premises for use in connection with the Services Avid offers shall not be used for any purpose other than that for which Avid provided it. The service address associated with an emergency 911 call is the authorized address where the Service is originally provided, and Customer’s movement of the equipment installed by Avid from the original service location will result in the identification of emergency 911 calls from the original service location. Access to emergency 911 services will therefore be limited if Avid-provided equipment is moved from the original service location.
When Avid provides 911 services specifically for Avid-provided equipment that may be moved from time to time (“Nomadic 911 Services”), it is the Customer’s responsibility to update location information using the web portal provided by Avid.
The Customer may be responsible for the payment of Service charges as set forth herein for visits by Avid’s agents or employees to the premises of the Customer or User when the Service difficulty or trouble reported results from the use of equipment or facilities provided by any party other than Avid, including, but not limited to, the Customer or User.
Avid shall not be responsible for the installation, operation or maintenance of any Customer or User provided communications equipment, except where explicitly defined by the MSA or associated Service Orders. Where such equipment is connected to the facilities furnished pursuant to this Agreement, the responsibility of Avid shall be limited to the furnishing of facilities offered under this Agreement and to the maintenance and operation of such facilities. Subject to this responsibility, Avid shall not be responsible for the transmission of signals by Customer Provided Equipment or for the quality of, or defects in, such transmission, or the reception of signals by Customer Provided Equipment.
Ownership of Facilities
Title to all facilities provided in accordance with this Agreement remains in Avid, its affiliates, agents or contractors unless specifically provided for in the Service Order.
Obligations of the Customer
The Customer shall be responsible for: (1) the payment of all applicable charges pursuant to their agreements; (2) damage to or loss of Avid’s facilities or equipment caused by the acts or omissions of the Customer or of any User, or by the noncompliance by the Customer or any User with these regulations, or by fire or theft or other casualty on the Customer’s or any User’s premises, unless caused by the negligence or willful misconduct of the employees or agents of Avid; (3) obtaining, maintaining, and otherwise having full responsibility for all rights-of-way and conduit necessary for installation of lines, facilities and associated equipment used to provide Service to the Customer from the Customer’s property line to the location of the equipment space described above. Any and all costs associated with obtaining and maintaining the rights-of-way described herein, including the costs of altering the structure to permit installation of Avid-provided facilities, shall be borne entirely by, or may be charged by Avid to, the Customer. Avid may require the Customer to demonstrate its compliance with this Section prior to accepting a Service Order; (4) not creating or allowing to be placed any liens or other encumbrances on Avid’s equipment or facilities; and (5) making Avid’s facilities and equipment available periodically for maintenance purposes at a time agreeable to both Avid and the Customer. No allowance will be made for the period during which Service is interrupted for such purposes.
The Customer is responsible for payment of all charges for Services, even when those Services, including long distance calls, are unauthorized and/or originated by fraudulent means from the Customer’s premises or remote locations. Customers are responsible for taking necessary steps to restrict their facilities and equipment to prevent fraudulent usage of Avid’s network or services.
Prohibited Activities and Uses
The Services Avid offers shall not be used for any unlawful purpose or for any use as to which the Customer or User has not obtained all required governmental approvals, authorizations, licenses, consents and permits.
Avid may require a Customer or User immediately to shut down its transmission of signals if said transmission is causing interference to others.
A Customer or End User may not assign, or transfer in any manner, the Service or any rights associated with the Service without the written consent of Avid. Avid will permit a Customer to transfer its existing Service to another entity if the existing Customer has paid all charges owed to Avid for Services provided pursuant to this Agreement. Such a transfer will be treated as a disconnection of existing Service and installation of new Service.
Customer shall not use The Services to engage in the practice commonly known as “robocalling”, which is the use of an autodialer used to call phone numbers in rapid succession often with pre-recorded messages. Additionally, Customer must provide Avid written proof of Customer’s right to use non-Avid-controlled phone numbers. Avid deploys systems capable of identifying instances of robocalling originating on its network, and The Services associated with such practice will be subject to immediate termination.
Avid will immediately suspend any customer’s Services if they are engaged in robocalling.
Claims
With respect to any Service or facility provided by Avid, the Customer shall indemnify, defend and hold harmless Avid from and against all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees for: (1) any loss, destruction or damage to property of Avid or any third party, or the death or injury to persons, including, but not limited to, employees or invitees of either party, to the extent caused by or resulting from the negligent or intentional act or omission of the Customer or End User or either of their employees, agents, representatives or invitees; or (2) any claim of any nature whatsoever brought by an End User with respect to any matter for which Avid would not be directly liable to the Customer under the terms of this Agreement.
Term Commitment
The Master Service Agreement specifies the term commitment for the Services. The term commitment specified by the Master Service Agreement shall begin on the date the Services are installed. The length of term of the Service Orders shall take precedence over that specified by the Master Service Agreement, and shall have the effect of extending the effectiveness of the Master Service Agreement and these Terms and Conditions for any such period.
Interruption of Service
Upon Customer request, Avid will credit a Customer’s account for Service interruptions that are not due to Avid’s testing or adjusting, negligence of the Customer, or to the failure of channels or equipment provided by the Customer. Before requesting a credit, the Customer will take reasonable steps to verify that the trouble could not have been prevented by the Customer and is not in the Customer’s wiring or equipment. For purposes of computing a credit, a month consists of 720 hours. Avid will credit the Customer’s account at the rate of 1/720th of the monthly charge for each full hour of any interruption. In addition, for Service interruptions greater than eight (8) consecutive hours, Avid will credit the Customer’s account in an amount equal to the price of one month of Service.
No credit allowance will be made for: (1) interruptions due to the negligence of, or noncompliance with the provisions of this Agreement by, the Customer, End User, or other common carrier providing service connected to the Service of Avid; (2) interruptions due to the negligence of any person other than Avid, including but not limited to, the Customer or other common carriers connected to Avid’s facilities; (3) interruptions due to the failure or malfunction of non- Avid equipment; (4) interruptions of Service during any period in which Avid is not given full and free access to its facilities and equipment for the purpose of investigating and correcting interruptions; (5) interruptions of Service during a period in which the Customer continues to use the Service on an impaired basis; (6) interruptions of Service during any period when the Customer has released Service to Avid for maintenance purposes or for implementation of a Customer order for a change in Service arrangements; and (7) interruption of Service due to circumstances or causes beyond the control of Avid.
Discontinuance of Service
If payment is not received by the due date, a disconnect notice may be sent to the Customer. A written notice will be sent by first class mail at least ten (10) days prior to the proposed date of discontinuance.
In the alternative, Avid may deliver a written notice by hand to the customer at least ninety six (96) hours prior to discontinuance. If the Customer’s account is disconnected due to non-payment, Services may be reconnected only by paying the outstanding account balance in full, and a reconnection fee may apply.
Dispute Resolution
If a dispute arises out of the Master Service Agreement and its incorporated documents or the use of the Services by the Customer, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation before resorting to arbitration, litigation, or some other dispute resolution procedure. The fees for arbitration will be borne equally by both parties.
Other Terms and Conditions
The Customer is responsible for designating an Authorized Contact or Contacts. Changes to the Services will be made only upon request of an Authorized Contact.
