Undock Terms of Service
Last Updated: February 15, 2019
This Agreement is between Undock, Inc., a Delaware corporation with its primary office at 68 Jay Street, STE 820, Brooklyn, NY 11201, (“Undock”), and the legal entity identified in the Order (“Customer”). Undock and Customer may be individually referred to as a “Party” or collectively as the “Parties.” This Agreement governs the use of Undock services (“Services”), Undock software applications (“Applications”) and the Undock Website.
Undock provides equipment and services intended for normal business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that customer accepts the terms of this Agreement. Customer accepts this agreement and agrees that Customer is legally bound by its terms. Customer accepts and warrants that its representative is 18 years of age or of legal age to enter into a binding agreement and has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or equipment. By subscribing to or using Undock services, including those services, functionality or features of mobile applications, you agree to these Terms of Service.
END USER LICENSE
Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Undock grants Customer and End User a limited, revocable, non-sublicensable, non-assignable, non-transferable (other than as permitted under this Agreement), non-resellable license and right to use the Undock Services in accordance with this Agreement. All rights not expressly granted under this Agreement are retained by Undock, including no Grant of Intellectual Property Rights. All patents, copyrights, trademarks, service marks, trade secrets, and all other intellectual property rights (collectively, “IP Rights”) in the Applications and Services are and shall remain the sole and exclusive property of Undock and its licensors. Customer will not, and will not allow its End Users, to:
a) Resell, sublicense or assign its right under the license granted under this Agreement to any other person or entity;
b) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software;
c) modify, adapt or create derivative works of the Software or any associated documentation;
Except as expressly provided in this Agreement, the limited license granted to Customer does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Undock and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of Undock Services may violate third-party IP Rights.
If you are interested in reselling Undock services, visit http://undock.com/partner.
PRICING, BILLING AND PAYMENTS
Undock will charge your method of payment in advance for each monthly service plan fee and associated taxes. All prices are identified in US dollars on the website or Administrative Portal. Recurring charges for the Services begin on the Start Date, and will continue for the Term. Recurring charges will, once incurred, remain in effect for the then-current Term. Undock will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term. Additional charges may result if Customer exceeds usage thresholds, activates additional features, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.
All Services and equipment must be purchased via credit or debit card or Electronic Check (ACH) at the time of purchase. By providing a valid debit or credit card, Customer is expressly authorizing all Services, fees and equipment charges to be charged to such payment format, including recurring payments billed on a monthly or annual basis. When you provide a check as payment, you authorize us to either use information from your check to make a one-time electronic transfer from your account or to process your check as a check transaction in which case you may not receive your check back from your financial institution.
Customer’s provided payment format shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, any overage charges. If the payment card associated with Customer’s Account is declined or fails for any reason, Undock will send Customer a notice using the contact information associated with Customer’s Account. Undock may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Undock under this Agreement, at law or in equity. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by Law. Undock may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
If you subscribe to an annual plan, Undock will bill you in advance for the service plan fee due for the entire year, plus any associated taxes and fees. We will charge you in arrears on a monthly basis for usage and calls not covered by your plan.
Late payments will be subject to late payment fees and returned electronic check payments will be subject to returned check fees. When you subscribe to our service, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments.
This authorization will remain valid until 30 calendar days after you terminate our authority to charge your payment method. If we disconnect your service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
You agree to promptly update your account information whenever your personal or billing information changes (including, for example, your name, address, e-mail address, telephone number, credit/debit card number and expiration date or other payment method information). You authorize Undock to send you notices and information regarding your service, including via e-mail, over the Internet. If notices are sent by us to the last email address provided by you, you agree that we have provided sufficient email notice and you waive any rights to assert failure of notice.
All plans, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated.
If Customer reasonably and in good faith disputes any portion of Undock’s charges, you must notify Undock within seven (7) calendar days after you receive your statement from your bank or credit card issuer. Financial regulations require you to notify your financial institution within sixty (60) days after you receive your statement and report any alleged errors to them within this timeframe. Please contact 888-995-1353. http://www.undock.com/support if you want to dispute any Undock charges on your statement.
If you use the service, any feature and/or any device in a way that is inconsistent with the normal use for your service, feature or plan, you will be required, at Undock’s sole discretion, to pay the rates for the service, feature or plan that would apply to the way you used the service, feature or device or change to a more appropriate plan. Unlimited voice services are provided primarily for continuous live dialogue between two individuals. All unlimited Services may only be used for normal business use. Unlimited Services also may not be used for any of the following prohibited uses: Spamming or blasting; Bulk call-in lines (customer support or sales call centers not provided by Undock); and Auto-dialing or “predictive” dialing. Unusual calling patterns, excessive conferencing or call forwarding, and/or consistent excessive usage will be considered indicators that your use may be inconsistent with normal use by other Undock customers.
Undock retains the right to impose limits on your usage of the Services or to terminate the Services if we believe that your usage, including, but not limited to, the total number of calls you make, minutes you use or SMS messages you send is not consistent with normal, fair and reasonable use of such services.
Inappropriate or Illegal Behavior.
Customer shall not use the services for any illegal, fraudulent or abusive purposes. If Undock finds that You are using the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Undock may at its sole discretion terminate Your Service and charge You any applicable fees for the Services used plus damages caused by Your improper use. Prohibited uses include, but are not limited to: (1) Behavior that is illegal, deceptive, obscene, threatening, harassing, malicious, fraudulent infringing or invasive of another’s privacy; (2) Sending unsolicited messages or advertisements, including email, voicemail, SMS, or faxes (“spamming”), or otherwise sending bulk and/or junk email, voice mail, SMS, or faxes; (3) Creating a false Caller ID identity (“ID spoofing”) or forged email/SMS address or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services; (4) Negligently, recklessly or intentionally transmitting any material that contains viruses, trojan horses, worms, malware, spyware, or any other programs that may be harmful. If You transmit or are otherwise connected with any transmission of voice, fax, email, or other unsolicited marketing messages using the Services, You agree to pay Undock its actual damages if those damages can be reasonably calculated.
EQUIPMENT RETURN POLICY
Customer is responsible for all return shipping charges for any hardware returned to Undock for any reason. If You cancel Your Undock Service within thirty (30) days from the date of purchase of the equipment, You may (a) keep the equipment and pay the list price minus the actual price paid for the equipment or (b) return Your hardware and receive a full refund. No returns are accepted after thirty (30) days from the date of purchase of the equipment. All equipment must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the hardware. At our discretion, we may decline Your return or charge You an additional fee for each damaged or missing item.
NUMBER PORTING AND AVAILABILITY
Undock will use reasonable efforts to port number as expediently as possible, provided that Customer complies with the specific procedures for porting. Number porting depends on the cooperation of third parties. You agree that Undock will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number. Number porting is defined and regulated by the Federal Communications Commission (FCC). Visit http://www.fcc.gov/cgb/NumberP… to learn more about number porting.
Undock cannot guarantee that Your existing provider will port numbers, or that circumstances beyond Undock’s control will not prevent or delay a successful port.
Undock is not obligated to store communications logs, voicemails, emails, or other messages. You agree that Undock has no liability or responsibility for the deletion or failure to store any information maintained or transmitted by Undock. You acknowledge and agree that Undock may establish limits as to the total size of communications that Undock transmits or stores and the duration for which Undock stores any communications.
Customer must provide all first-tier support to Customer’s End Users. Onsite and implementation services are not included in the Undock Support services. Undock will make second-tier remote support available to Customer via Undock Support center, which will be available 8×5 (with 24/7 support available for enterprise plans), to attempt to resolve technical issues. Undock may provide technical support via telephone, chat, and email. The types of support provided by Undock is dependent on the products that You purchased and the number of seats using Undock in Your organization. The types of support provided by Undock is determined entirely by Undock in its sole discretion and may change from time to time.
Undock does not make any representations or guarantees that Undock will be able to fully resolve any issues. Except as provided in this section, Undock has no obligation to provide additional customer support, technical support, or to provide solutions (e.g., bug fixes to software) to any issues that may arise in Your particular use of the Services. Undock assumes no obligation to provide support services for any third party products or services, or for problems with our service caused by third party products or services.
Customer may open a case with Undock Support at https://support.undock.com. Any individual contacting Customer Care on behalf of Customer must be authorized to do so on behalf of the Account, and will be required to follow Undock’s authentication protocol.
Undock is required by the FCC to advise you of the circumstances under which 911 may not be available or may be in some way limited. Such circumstances include: Internet Connection Failure. If the connection to the wired broadband Internet over which Your Undock Service is provided is interrupted, You would not have access to 911 service during that interruption.
Because your address does not necessarily correspond with your telephone number, You must provide Undock with the accurate street address where You will be using Undock voice services when You sign up for Undock voice services. If You relocate any equipment (IP phone or PC with softphone) you must update your address. If You do not update your address, any 911 calls You make using the VoIP Service will be routed based on Your reported address.
Loss of Electrical Power. Unless You have a backup system to power Your wired broadband Internet connection and any equipment (PC with softphone, IP phone, ATA with traditional phone) that You use to access Your VoIP Service, You will not have phone service or 911 service during any power outage. Registration of Physical Locations Required. As discussed above, You must register the Registered Location where You will be using VoIP service for each VoIP phone line You use from Undock (e.g., if You purchase Undock with three VoIP lines, You must provide a Registered Location for each of the three VoIP lines). Undock will obtain Your Registered Location as part of the service initiation process and will not provide VoIP Service until you have provided Your initial Registered Location. However, You must update Your Registered Location when You use Your VoIP Service from a new location. Regardless of what address You register, in some circumstances, such as unavailability of direct routing to PSAPs or the use of portable devices to access the VoIP Service, emergency calls will be routed to the National Emergency Call Center.
You agree to provide true, accurate, current, and complete Registered Location information to Undock as part of the service initiation process and to update as soon as possible Your Registered Location with true, accurate, current, and complete information whenever You use Your VoIP Service from a new location. If You provide Registered Location information that is, or that Undock suspects to be, false, inaccurate, not current, or incomplete, Undock has the right to suspend or terminate the Services and refuse any and all current or future use of all Services, or any portion thereof. Undock will not, however, disable Your ability to make a 911 call during any service suspension.
You may update Your Registered Location by logging on to Your Account settings page or contacting Undock customer support at support@Undock.com. For purposes of 911 Dialing, You may only register one Registered Location for each VoIP line.
Notify All Users of 911 Limitations. You should inform all business colleagues, household residents, guests, and other persons who may be present at the physical location where You utilize the VoIP Service that 911 may not be available or may be in some way limited in comparison to traditional 911 service. Undock will provide subscribers to VoIP services for which E911 service is provided, stickers warning that “E911 Service May Be Limited or Not Available” for use with any VoIP equipment purchased. It is Your responsibility to place these stickers on the equipment You use to access VoIP Service. If You have not received a sticker, or You require additional 911 stickers, please contact customer support at support@Undock.com.
Disclaimer of 911 Liability. Undock disclaims all responsibility for the conduct of PSAPs, the National Emergency Call Center, and all other third parties involved in the provision of emergency response services. Undock does not have any control over PSAPs, the National Emergency Call Center, or other third parties and is therefore not responsible for whether they answer 911 calls made using the VoIP service, how they answer these calls, or how they handle or respond to these calls. Undock relies on third parties to assist it in the provision of 911 service and disclaims any and all liability for acts or omissions by third parties in the provision of Undock’s 911 service.
EMERGENCY SERVICES – 911 DIALING
911 Disclosure During Subscribe
Undock 911 service is different from traditional wire line 911 and cellular/wireless 911, but it is a safe and reliable means of emergency dialing that may differ depending on where you are located, and the device used, when using your Undock service.
Undock customers have access to Enhances 911 (E911), basic 911 or our national emergency call center. When you dial 911 your Undock phone number and registered address is sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary. With basic 911, when you dial 911, local emergency operators answering the call may not see your Undock telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your Undock telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Once local emergency centers are capable of receiving our customers’ information, we automatically upgrade customers with basic 911 to E911 service.
If you do not have access to either basic 911 or E911 for any reason, your 911 call will be sent to the Undock national emergency call center, where a trained agent will ask for your name, telephone number, and location, and then transfer you to the local emergency center nearest to your location.
We require you to provide the physical address where you will be using our service for 911 purposes. For E911 and basic 911, this address is used to route 911 calls to your local emergency center. When you initially provide your physical address, it can take up to 120 minutes to verify your address and activate 911 services at this address. You will receive an email letting you know when 911 services are activated.
If you move this device to another location, you must update your address. You may register only one location at time. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. When you update your location, it can take several hours to activate 911 services at the updated address. You will receive an email letting you know when 911 services are activated at the updated address.
911 Dialing from Mobile Applications
Undock mobile applications are not a replacement for your cellular service and you cannot make emergency (e.g., 911) calls using the software. If you attempt to make a 911 call from the mobile application the mobile application will close and the call will be placed over your cellular carrier’s network. However, this does not prevent you from using your mobile phone for making emergency calls via your cellular provider as normal. If you dial internationally recognized emergency service numbers while using a mobile application, the mobile application will close, the native dialer will be launched, and the call will be placed over your carrier’s cellular network. Neither your phone number nor your location will be reported to an emergency operator when dialing an internationally recognized emergency service number.
OPERATOR ASSISTED CALLING, 311, 511, AND OTHER X11 CALLING
The VoIP Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). The VoIP Service may not support 311, 411, 511, and/or other X11 calling (other than 911 and 711 as specified in this Agreement) in one or more service areas.
You agree that Undock 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 Undock’s website; or any other third-party website where Undock or its designated agents may promote the Services. You hereby grant Undock and its agents an irrevocable, perpetual, worldwide, non-exclusive, 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.
Non-disparagement. You agree not to directly or indirectly through a third party engage in any conduct or make any communication (public or private) that disparages Undock or the Applications or Services in any way. Such communications include, but are not limited to, publishing, posting, printing, disseminating, or otherwise making such disparaging statements on or through the Internet, in any blog, or through any other form of social media. You further agree not to solicit or encourage, directly or indirectly, any such statements, comments, or communications by any third-party. In accordance with the termination provisions below, Undock may terminate Your access to the Applications or Services if You breach the requirements of this section. Copyright Infringement Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent, or received using the Applications or Services for purposes of determining copyright infringement. However, Undock reserves the right to terminate access to its Applications or Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Applications or Services if Undock determines that a user is a repeat infringer.
Dispute Resolution and Optional Arbitration. In the event of any dispute, claim, question, or disagreement between You and Undock (“Dispute”), You and Undock shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of Undock’s legal department (or other representative of Undock designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor Undock shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
DISPUTE RESOLUTION AND BINDING ARBITRATION
PLEASE READ THIS CAREFULLY, IT AFFECTS YOUR RIGHTS.
It is important that you read this entire section carefully. This section provides for mandatory resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Any arbitration under this agreement will take place on an individual basis; class arbitrations and class action lawsuits are not permitted.
Undock and you agree to arbitrate any and all disputes and claims between you and Undock. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to:
Disputes and claims arising out of or relating to any aspect of the relationship between you and Undock, whether based in agreement, tort, statute, fraud, misrepresentation or any other legal theory;
Disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
Disputes and claims that may arise after the termination of this agreement;
Disputes and claims that are currently the subject of individual litigation;
Disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
Disputes and claims concerning the scope of this arbitration provision.
References to “Undock,” “us” and “you” include our respective agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the service under these Terms of Service or any prior agreements between you and Undock.
Informal Resolution of Disputes
Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the Undock Customer Care Department by telephone at 888-995-1353 or by email at http://www.Undock.com/contact. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved through mandatory arbitration.
The Services are dependent upon Customer’s maintenance of sufficient Internet access, networks and power. Undock will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet Undock’s Technical Sufficiency Criteria.
Termination for Cause
Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or iii) upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 10(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW
The limitations of liability contained in this Section 10 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
Disclaimer of Liability for Damages
Our aggregate liability under this agreement will in no event exceed the service charges with respect to the affected time period.
IN NO EVENT will Undock, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services or devices to you in connection with our service be liable for any damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use a device or the service, including inability to get or receive dial tone, access emergency service personnel through the 911 dialing service, or delays in the delivery of emergency services accessed through the 911 dialing service, or to obtain emergency help. Undock further disclaims any and all liability arising out of any resale, reuse, or refurbishment of the device without Undock’s prior authorization. These limitations apply to claims founded in breach of agreement, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not we were informed of the likelihood of any particular type of damages.
Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you however, with respect to 911 dialing and other aspects of Undock’s service, there may be federal or state laws that exclude such damages and provide other protections to Undock which Undock does not waive or limit in any manner whatsoever.
Disclaimer of 911 Liability
We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We do not have any control over any local emergency response center. Therefore, we are not responsible for whether they answer calls using our 911 dialing service, how they answer these calls, or how they handle them. We rely on third parties to assist us in routing 911 dialing calls to local emergency response centers and to a national emergency calling center. We are neither liable nor responsible if the data used by a third party to route calls is incorrect or produces an erroneous result or results in the delay of the delivery of emergency services. Neither Undock nor its officers or employees may be held liable for any claim, damage, or loss, fine, penalty, cost, and expense (including, without limitation, attorneys’ fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, 911 Dialing, or your device.
Limit on Total Liability
Our total liability under this agreement will not exceed the service charges for the affected time period. Undock will not be responsible for third party fees or charges, including but not limited to, banking fees, overdraft fees, wireless or cellular fees, or other wireline, broadband or internet service charges, technician charges, or other similar charges.
Customer agrees to indemnify and defend Undock and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Undock, or iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless Undock against all damages, costs, and legal fees finally awarded against Undock by a court of competent jurisdiction in connection with such third-party claim, or agreed to in a written settlement agreement approved in writing by the Customer.
Defense and Indemnification Procedures
Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
Undock will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Undock shall pass through to Customer any and all warranties Undock receives in connection with equipment provided to Customer
Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.
Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND Undock MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT Undock CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
In the event that the Parties are unable to resolve a Dispute, any related action, lawsuit, or proceeding must be brought in and adjudicated exclusively by state or federal courts located in the city and county of San Francisco, California, United States of America. Each Party hereby consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions or lawsuits and irrevocably waives any right that it might have to assert that either forum is not convenient or that any such courts lack jurisdiction.
Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party 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, in additional to any other relief to which such Party may be entitled under applicable Law.
Except for actions for nonpayment or liability arising from Section 10 (Indemnification), no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit or proceeding as a class or collective action, private attorney general action or in any other capacity acting in a representative capacity.
A high speed internet connection is required in order to use Undock’s home or business phone service; Wi-Fi or 3G/4G may be required for our mobile applications. Our service may not be compatible with home security systems, TTY, and other systems. See Section 5(G).
Unlimited calling and other services are subject to normal use. See Section 5(D) and the Reasonable Use Policy found on our website at www.Undock.com.
All information linked to these Terms of Service is part of it. However, from time to time, Undock offers special or different terms and conditions for Undock services sponsored or co-branded by Undock business partners. By subscribing to Undock service under these special offers, the terms of service for such special offers shall apply and supersede these Terms of Service. Notwithstanding anything to the contrary set forth herein, if your Undock account is governed by a different terms of service in connection with a Undock co-branded service offer, then any additional lines or features you add to your Undock account will be governed by that co-branded TOS. To the extent the co-branded TOS does not address the additional features to which you subscribe under that plan, the then-current Undock World® TOS will apply solely with respect to that additional feature(s). If you terminate your service under the co-branded offer and move to a different rate plan for your Undock service, the co-branded TOS will no longer govern the provision of your Undock service. The terms of service for the new rate plan will apply to all your Undock service.
Revisions to these Terms of Service
Early Termination Fees
If a promotional or plan benefit (such as an equipment upgrade, free month or discounted pricing of service, free installation, rebate, or other incentive) is provided to you at no charge or at a specified discount based on your keeping Undock service for a specific length of time, then, unless otherwise specified in the offer you received, the specified period begins on the Order Date.
If you terminate your service before that period of time expires, then you will be subject to an Early Termination Fee. The applicable Early Termination Fee is assessed based upon the rate plan you select. The ETF is pro-rated based upon the number of months in the term of the agreement for your selected rate plan. Proration may not necessarily coincide with your bill cycle, and may include a balloon payment at the end of the proration schedule.
You are responsible for all usage charges that are outside of the promotional or plan benefit. Undock rate plans will not require you to sign an agreement or commitment for a specific Term. Such rate plans will not carry an Early Termination Fee. Promotional rate plans may require an agreement or commitment for a specific Term and such rate plans will carry an Early Termination Fee.
PROHIBITED USES; UNLAWFUL USES AND INAPPROPRIATE CONDUCT
Lawful Purposes Only
You may use our service and your device only for lawful, proper and appropriate purposes. You may not use our service or your device in any way that is illegal, fraudulent, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, fraudulent, improper or inappropriate uses of our service and/or devices.
Threatening; Abusive; Harassing; Defamatory; Libelous; Deceptive; Fraudulent; and/or Invasive of another’s privacy, or any similar behavior. In addition, you shall not use our service or your device for: Auto-dialing; Continuous or excessive call forwarding or conferencing; Inbound/outbound centralized or distributed call center activity; Telemarketing (including charitable or political solicitation or polling); Fax or voicemail blasting; For continuous or excessive chat line access, or Use of an open telephone line as a monitor, intercom or transcription service.
You shall not use our service or our device to: Impersonate another person; Send bulk unsolicited messages; Use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from our service or use any automated means to manipulate our service; Violate any law, rule or regulation; Violate any third party’s intellectual property or personal rights, or Exceed your permitted access to our service.
We may monitor the use of our service for violations of these Terms of Service. We may remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our service, or Undock, its parent, affiliates, directors, officers, agents, and employees from harm
Providing Information to Authorities and Third Parties
If we believe that you have used our service or your device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, you hereby agree that we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:
In response to law enforcement or other governmental agency requests;
As required by law, regulation, rule, subpoena, search warrant, or court order;
As necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both;
To protect Undock’s rights and property; or
In emergency situations where disclosure of such information is necessary to protect Undock customers or third parties from imminent harm.
Use of Service and Device by Customers Outside the United States
We encourage you to use our service to call foreign countries from the United States and to use our service as you travel. Technical and customer care support is offered only in the United States. Our service is designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is not within a Undock service area, or your ISP or broadband provider places restrictions on using VoIP services, we do not claim that they will allow you to use our service. You will be solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service because of your use of our service. If you ship a device outside the United States for use in another country, you are solely responsible for determining and adhering to compliance with all applicable customs, import/export, regulatory, tax (including VAT) and other laws and costs\expenses and penalties regarding the transport, distribution and use of such device and the service.
No Transfer of Service
You are the sole account holder for the service for all purposes and are solely responsible for all charges incurred on the account, regardless of changes to the account, including billing information. You are also responsible for all usage and charges on all devices and features including Extensions ® phone(s) registered with Undock, as well as charges for aggregated domestic and international usage made by you and others you have authorized to use your service. You may not resell or transfer your service or account or provide a telephone service to anyone else by using your Undock service or features of your Undock service without first getting our written consent. In no event may your account be assigned to a non-U.S. resident.
IF YOU ACQUIRE A DEVICE FROM SOMEONE OTHER THAN Undock OR A Undock AUTHORIZED RESELLER, OR THAT PREVIOUSLY WAS ASSIGNED TO ANOTHER’S ACCOUNT, Undock DISCLAIMS ALL WARRANTIES, DAMAGES AND LIABILITIES YOU MAY INCUR BY VIRTUE OF YOUR USE OF SUCH DEVICE, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Attempted assignments of service and accounts through changes in account and billing information does not relieve you of liability and responsibility for use of the service and features, or for charges on the account unless we have not consented to the assignment in writing or unless we actively facilitate the assignment as evidenced in our Customer Care records. You may elect to authorize others to access your account by calling us at 888-995-1353.
No Alterations or Tampering
If you copy or alter or have someone else copy or alter the firmware or software of the device or any mobile application in any way that facilitates a compromise of our service, you are responsible for any charges that result and damages incurred by Undock as a result. You may not attempt to hack or otherwise alter or disrupt our service or make any use of our service that is inconsistent with its intended purpose.
Theft of Service
You may not use, obtain or facilitate use of our service, directly or indirectly through others, in any manner that avoids Undock policies and procedures, including an illegal or improper manner You will notify us immediately at 888-995-1353 or http://www.Undock.com/contact if your device is stolen or if you believe that your service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of service. If you fail to notify us in a timely manner, we may disconnect your service and levy additional charges on you as permitted under these Terms of Service. Until you notify us, you will be liable for all use of our service using a device stolen from you and any stolen, fraudulent, or unauthorized use of our service whether or not it involves a stolen device.
Unauthorized Usage of Device; Firmware or Software
Unless your plan specifically provides you with a license to use our firmware or software, you have not been granted any license to use the firmware or software we use to provide our service or that we provide to you in providing our service, or that is embedded in your device, or accessible via mobile application other than a nontransferable, revocable license to use the firmware or software in object code form (without making any modification to it) strictly according the terms and conditions of these Terms of Service. You also agree that you will use your device exclusively for our service. We will not provide any passwords, codes, or other information or assistance that would enable you to use your device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You warrant that you possess all required rights, including software or firmware licenses, or both, to use any interface device that we have not provided to you. You may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software. You shall not use the mobile application software to develop any software or other technology having the same primary function, including but not limited to using the software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the software.
Vanity Number Porting
You may not obtain vanity numbers from Undock and then attempt to sell, resell, or actually sell or resell such vanity numbers.
LIMITATION ON WARRANTIES, REMEDIES AND LIABILTY
AS IS Services
You agree that our services are provided “as is,” except to the extent provided below.
No Warranties on Service or Software
We make no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service or device for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance. In addition, we do not warrant that the service, software or device will be without failure, delay, interruption, error, omission, degradation of voice quality, or loss of content, data, or information. Neither Undock nor its officers, directors, employees, affiliates or agents, or any other service provider or vendor who furnishes services, devices, or products to the customer for our service will be liable for unauthorized access to our or your transmission facilities or premises or equipment or for unauthorized access to, or alteration, theft, or destruction of, customer’s data files, programs, procedures, or information through accident, fraudulent means, devices, or any other method, regardless of whether such damage occurs as a result of Undock’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning our service or device, if any, by Undock or Undock’s agents or installers are informational and are not given as a warranty of any kind.
With regard to mobile applications downloaded from and purchased through a third party provider (e.g., the iTunes® store or Android Market), in the event of any failure of the mobile application to conform to any applicable warranty, you should notify the third party provider, and the third party provider may refund the purchase price for the mobile application to you; and that, to the maximum extent permitted by applicable law, the third party provider will have no other warranty obligation whatsoever with respect to the mobile application, nor any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
No Credit Allowances for Interruption of Undock Service
We will not give you credit for any interruption of Undock service, including international calling services.
CHANGES TO THIS AGREEMENT
We may change the terms and conditions of this agreement from time to time. By subscribing to our service, you agree that we may provide to you by use of electronic communications required notices, agreements, and other information concerning Undock, including changes to this agreement. We may give you notice of a change by posting the change on the home page of Undock.com, on your account web page or monthly bill, in a newsletter, by e-mail, on the relevant web page of the applicable service, or by other permitted communication. Such notices will be considered given and effective on the date posted. These changes will become binding on you on the date they are posted and we are not required to give you further notice in order for you to continue using our service. By continuing to use the service after revisions are in effect, you accept and agree to all revisions. If you do not agree to the changes, you must terminate your service immediately. When posted, this agreement supersedes all previously agreed to oral written or electronic and written terms of service, including, without limitation, any terms included with the packaging of your device. It also supersedes any written terms provided to retail customers with retail distribution, including, without limitation, any written terms in the packaging of your device. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of Undock services. If you continue to use our service, we will consider this your acceptance of any changes.