The present general terms and conditions (hereinafter referred to as “Terms and Conditions”) constitute the indispensable part of the agreement (hereinafter referred to as “Agreement”) concluded between Flagman Telecom, Inc. (hereinafter referred to as “Flagman Telecom”) and the end-user(hereinafter referred to as “Customer”, Flagman Telecom and Customer may also jointly be referred to as “Parties”) for Flagman Telecom services and products (collectively hereinafter referred to as the “Services”. The detailed description of those is presented below under the Section 3. DEFINITIONS). The rendering of all the scope of Flagman Telecom Services to Customer by Flagman Telecom is regulated by Terms and Conditions as set hereunder. The fact of Services purchase by the Customer implies that the latter HAS READ THE TERMS AND CONDITIONS OF FLAGMAN TELECOM INC AND AGREES TO ADHERE TO THOSE. Terms and Conditions regulate the legal relations between Customer and Flagman Telecom, including, but not limited to: LIMITATION OF LIABILITY OF FLAGMAN TELECOM; EARLY DISCONNECTION FEE; DISPUTES RESOLUTION VIA MANDATORY ARBITARTION, etc.
2. DISPUTES RESOLUTION: MANDATORY ARBITARTION
2.1. Procedure of Arbitration. All and any disputes arising out of the Agreement and/or in any way connected with/related to the latter, Agreement breaches and failure to comply with the terms contained herein, and/or Services provision to the Customer, including, but not limited to billing disputes (hereinafter collectively or solely “Claim/s”) shall be arbitrated by the Customer and Flagman Telecom as per the conditions prescribed below. Claims shall be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each party hereby consents to any such disputes being so resolved. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction.
Customer shall also arbitrate any claims against third parties in connection with the Services, if by any means in the course of the same proceedings any claim against Flagman Telecom is raised. Customer and Flagman Telecom shall bear their own fees, costs, and expenses, including, but not limited to those for attorneys, experts, and witnesses. The Parties agree, that the place of arbitration is Santa Clara County, California U.S.A; English shall be the language of the arbitration.
2.2. PRELIMINARY NOTICE OF CLAIM. Prior to any Claim or Suit initiation the Customer shall send a written justified description of the letters to Flagman Telecom (exclusively the address/email address below) with the purpose of resolving the dispute at hand. If in the period of 30 days upon receipt of such notice by Flagman Telecom the dispute is not resolved, the Customer gains the right to institute the Claim or Suit as set by the Section 2.1. heretofore. All claim notices must mandatorily be sent to: Director of Customer Service Flagman Telecom, Inc., 1200, Valley View Rd #203, Glendale, CA 91202 -or- [email protected]
ANY CLAIM OR SUIT SHALL NOT BE INITIATED BY THE CUSTOMER IF THE REQUIRED PROCEDURE OF PRELIMINARY NOTICE PRESCRIBED ABOVE BY THE PRESENT SECTON IS NOT ADHERED TO. Section 2.2. can be served as full bar against any claim, suit, any action whatsoever bought in breach of the requirement set herein.
2.3. TIME LIMITATION FOR CLAIMS/SUITS. The Customer hereby agrees, that any claim/suit connected with or arising out of the Agreement and/or Services provision can be brought exclusively in one-year period after the termination of the Services to Customer or when such claim/action occurred (whichever comes earlier). As per the agreement of the Parties the stipulation contained in the present Section is valid regardless of any provision to the contrary in any statute and or other legal act whatsoever.
2.4. PERSONAL JURISDICTION. For the purposes of the enforcement of Arbitrary Award granted as per the Section 2 herein, The Parties come to mutual agreement, that the state and federal courts within Santa Clara County, California shall have personal and exclusive jurisdiction.
For the purposes of interpretation of the present Terms and Conditions the following terms shall have the meanings prescribed as follows.
3.1. “Agent”: an employee or contractor of Customer who may use the Services personally. The total number of Agents is the maximum number of personnel who may use the Services simultaneously at any one time.
3.2. “Customer Data” : any data whatsoever provided in the process of usage or implementation of the Services to Flagman Telecom by Customer.
3.3. “Documentation” : Services related user manuals and/or other documentation made available to Customer by Flagman Telecom, in the form of recorded documentation on optical or magnetic media and/or accessible via the Internet and/or in the form of printed files/materials.
3.4. “Implementation Services”: As per the Service Order, the Customer selected services provided by Flagman Telecom in connection with set up and implementation of the Services itself. Implementation Services also include limited training for the Services set up and activation during the hours from 9:00am to 6:00pm PT Monday-Friday.
3.5. “Initial Payment” : the initial payment envisaged by the Service Order which contains the fees for Implementation Services and the first month Service Fees.
3.6. “Login”: a separate, individual login account for each Agent within a Customer account.
3.7. “Professional Services” : work that Flagman Telecom will execute in favor of Customer as per the technical specification(s) individual for each case to be agreed and carried out by the Parties in accordance with the terms and conditions prescribed by the Agreement.
3.8. “Service Fee” or “Service Fees”: the monthly and/or annual fees envisaged by the Service Order to be paid by Customer to Flagman Telecom against the Services rendered to the Customer by Flagman Telecom.
3.9. “Service Order” : the document concluded between the Customer and Flagman Telecom, which mandatorily specifies (a) Services price, the quantity of the letters in the frames of the Agreement, including Implementation Services and associated telecommunication fees; (b) the scope of the Services, which are to be provided; (c) other options provided on the Service Order as Customer may select and Flagman Telecom shall agree to apply to the Services.
3.10. “Service Plan”: the monthly or annual (one or more years) subscription plan a Customer accepts in the Service Order.
3.11. “Service Order Addendum”: a Service Order agreed between the Customer and Flagman Telecom subsequent to the initial Service Order, deemed an integral part of the latter.
3.12. “Services”: the products and/or services that are provided to Customer as per the description given in the Service Order, including all and any additional Services (The detailed specification is presented below under the Section 4.2ADDITIONAL SERVICES) envisaged by the Service Order Addendum agreed between the Parties.
3.13. “Software” : any proprietary software (including, but not limited to any documentation related to software’s such owned by, licensed by, and/or which Flagman Telecom has a right to sublicense under the present Agreement, which software is provided to Customer in the frames of the present Agreement and/or is used in and/or used to render the Services.
4. FLAGMAN TELECOM PRODUCTS AND SERVICES.
Flagman Telecom will provide the Services envisaged by the respective Service Order, including telephone and other (hereinafter collectively referred to as “Equipment”) in the course of the Initial Term (More detailed is presented below under the Section 5.1 INITIAL TERM) or Renewal Term (More detailed is presented below under the Section 5.2 RENEWAL TERM) in accordance with the stipulations of the present Terms and Conditions. As envisaged by the respective Service Order, The Customer hereby is given the access to Services with the number of Agents and Logins specified by the said Service Order for internal business purposes usage. The Customer is also granted the rights to use Documentation related to the Services the Customer uses by the respective Service Order.
4.1. SERVICE CONDITIONS.
It is fully acknowledged and accepted by the Customer, that Flagman Telecom has the obligation to render the Services provided that (a) The payment of fees by the Customer (the fees for Professional Services and all Service Fees) is conducted in full and when due, and (b) The Customer is satisfied with the technical requirements for the Services envisaged by the Documentation, which is made available to Customer as set heretofore. Flagman Telecom may revise and update such in the periodical manner. time.
4.2. ADDITIONAL SERVICES. In the period of the Initial Term or Renewal Term at Customer’s discretion, the number of Services provided can be increased (such increase hereinafter is referred to as, “Additional Services”) by signing Service Order Addendum by the Customer, which Flagman Telecom accepts. The Service Order Addendum envisages the scope of the specific Additional Services.
Service Order Addendums are deemed agreed between the Parties if Flagman Telecom accepts respective Service Order Addendum. The referred acceptance shall be implied if Flagman Telecom undertakes the provision of the Services prescribed by the respective Service Order Addendum. The Accepted Service Order Addendum shall be deemed an amendment to the Agreement, subject to all of the terms and conditions of the latter. The price and payment procedure stipulated by the respective Service order is applicable towards Service Order Addendum. The term of the Additional Services provision is coterminous with the Initial Term or Renewal Term of the present Agreement.
4.3. PROVISION OFIMPLEMENTATION SERVICES. Diligent and commercially reasonable efforts shall be exercised by Flagman Telecom to provide the Implementation Services covered by the Initial Payment.
4.4. PROVISION OFADDITIONAL PROFESSIONAL SERVICES.
In case of request of Professional Services, training, consulting by not envisaged under the present Agreement by the Customer, Flagman Telecom has the right to (not an obligation in any way whatsoever) provide the said Professional Services and/or refer the Customer to the third-party consultants.
If such additional Professional Services are provided by Flagman Telecom, fees for such Professional Services (a) may be fixed fee or (b)Flagman Telecom ‘s standard time and material rates can be applied. Professional Services will be provided by Flagman Telecom as per appropriate addendum as well as the other terms and conditions of the present Agreement, and may be envisaged by statement of work, agreed between the Parties.
5.1. INITIAL TERM. The initial term of the present Agreement (hereinafter referred to as “Initial Term”) commences on the date that Customer enters into the Agreement and shall be in force and effect for the duration of the service period as defined by the respective Service Order.
5.2. TERMRENEWAL. Except for the cases prescribed by the Section 5.3 hereunder, at the end of the Initial Term, the Agreement is renewed for an additional one year term in an automatic manner (hereinafter referred to as “Renewal Term”), and shall be renewed at the end of each Renewal Term for an additional one-year Renewal Term, unless a notification on service cancellation is served by the Customer to Flagman Telecom at least thirty (30) days in prior to the end of the Initial Term or applicable Renewal Term.
5.3. MONTH-TO-MONTH TERM RENEWAL. Upon expiration of the Initial Term or any Renewal Term a Customer shall also have the right to renew the Agreement on a month-to-month basis at the then-current rates offered for the Services. Customer will be converted to a month-to-month basis if notification of intention to convert to month-to-month service is served by the Customer to Flagman Telecom at least thirty (30) days in prior to the end of the Initial Term or applicable Renewal Term.
6.1. TERMINATION FOR CONVENIENCE PURPOSES. Each of the parties has the right to terminate the Agreement upon thirty (30) days notice of termination. Disconnection fees shall be applied as set by Section 10.7. If Customer transfers or ports their phone number to a service provider other than Flagman Telecom, Customer must contact Flagman Telecom to cancel the Services provided to Customer by Flagman Telecom.
6.2. IMMEDIATE TERMINATION. Flagman Telecom holds the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including but not limited to, misuse of the Services , Customer’s failure or unreasonable delay to pay any sum due hereunder, suspected/alleged fraud, Customer’s any other breach of the Agreement whatsoever, or any other activity/action by Customer that adversely affects the Services, Flagman Telecom, Flagman Telecom’s business reputation, Flagman Telecom’s network or other Customer’s use of the Services. Flagman Telecom, at its sole discretion, shall be entitled to reasonably determine what constitutes misuse of the Services, and Customer agrees that Flagman Telecom’s determination is final and binding on Customer. Flagman Telecom may require, and Customer shall pay, a reasonable activation fee as a condition to changing or resuming a terminated or suspended account.
6.3 EFFECT OF TERMINATION ON FEES. Upon termination of Agreement, in case it has mandatory annual term, for any reason, Customer shall be responsible for the full monthly Service Fee for the month in which termination occurs. Customer is fully and wholly responsibility for paying all unpaid, accrued charges regardless of the expiration or termination of the Agreement.
7. 911 & SERVICE LIMITATIONS.
The Federal Communications Commission (“FCC”) requires that Flagman Telecom provides E911 Service to all Customers who use Flagman Telecom Services within the United States. Sections 7.1-7.7 apply to all Customers who use Flagman Telecom Services within the United States. Section 7.8 applies to all Customers.
7.1. 911 ACKNOWLEDGEMENT AND PROVISION OF WARNING LABELS.
CUSTOMER IS INFORMED IN DUE MANNER AND ACKNOWLEDGES THAT FLAGMAN TELECOM’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE WAY SAME AS TRADITIONAL WIRELINE 911 SERVICES OPERATE. THE DIFFERENCES AS SUCH ARE LISTED AND DETAILED IN THE PRESENT SECTION 7. THE CUSTOMER UNDERTAKES TO NOTIFY ANY POTENTIAL CUSTOMERS OF THE CUSTOMER OR AGENTSOF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS HEREIN.
THE WARNING LABELS REGARDING THE LIMITATIONS AND/OR UNAVAILABILITY OF 911 EMERGENCY DIALING SHALL BE PROVIDED BY FLAGMAN TELECOM TO CUSTOMER. CUSTOMER UNDERTAKES TO PLACE A LABEL REFERRED ABOVE ON AND/OR NEAR EACH TELEPHONE DEVICE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. CUSTOMER MAY REQUEST FROM FLAGMAN TELECOMADDITIONAL LABELS, IF NECESSARY.
FLAGMAN TELECOM WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND WILL REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER AFFIRMATIVELY ACKNOWLEDGES THAT FLAGMAN TELECOM HAS INFORMED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH FLAGMAN TELECOM E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING.
FLAGMAN TELECOM STRONGLY RECOMMENDS TO CUSTOMER TO KEEP AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
7.2. ELECTRICAL POWER NECESSITY. IF NO ELECTRICAL POWER IS AVAILABLE THE SERVICES WILL NOT FUNCTION, WHICH FACT THECUSTOMER IS AWARE OF AND ACKNOWLEDGES.
7.3. INTERNET ACCESS NECESSITY. IF AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE OCCURS, THE SERVICES WILL NOT FUNCTION, WHICH FACT THECUSTOMER IS AWARE OF AND ACKNOWLEDGES.
7.4. NON-VOICE SYSTEMS. CUSTOMER IS FULLY AWARE OF AND ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING BUT NOT LIMITED TO HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. FLAGMAN TELECOM WILL NOT BE LIABLE IN ANY WAY WHATSOEVER FOR INTERRUPTION AND/OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
7.5. E911 SERVICE DETAILED DESCRIPTION. E911 SERVICE OF FLAGMAN TELECOM IS AN INTEGRAL COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. VIRTUAL NUMBERS, TOLL-FREE NUMBERS, EFAX/VIRTUAL FAX OR SIMILAR SERVICE ACCESSORIES OR ADD-ON SERVICE PLANS DO NOT SUPPORTE911 SERVICE.
E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. IN CASE OF SUBSCRIPTION TO FLAGMAN TELECOM E911 SERVICE, CUSTOMER IS OBLIGED TO REGISTER THE PHYSICAL LOCATION OF RESPECTIVE EQUIPMENT (PHONE, DIGITIAL TELEPHONE ADAPTER OR VIDEOPHONE, SOFTPHONE) BY CALLING CUSTOMER SERVICE OR ON THE FOLLOWING WEBSITE:WWW.FLAGMANTELECOM.COM. IF AND WHENEVER THE SAID LOCATION OF SERVCES IS CHANGED, THE CUSTOMER IS OBLIGED TO REVISE/UPDATE IT VIA SAME MEANS. IN CASE OF SEPARATE SUBSCRIPTION TO MOBIL APPLICATIONS, THE CUSTOMER IS FULLY AWARE AND ACKNOWLEDGES THAT THE PHYSICAL LOCATION OF THE MOBILE APPLICATIONS WILL BE THE SAME AS LOCATION REGISTERED FOR CUSTOMER’S RESPECTIVE EQUIPMENT> IF CUSTOMER SUBSCRIBES TO, WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF CUSTOMER’S EQUIPMENT (PHONE, SOFTPHONE, DIGITIAL TELEPHONE ADAPTER (“DTA”) OR VIDEOPHONE) WITH FLAGMAN TELECOM, EITHER ON THE WEBSITE OR BY CALLING CUSTOMER SERVICE, AND WILL UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. IF CUSTOMER SUBSCRIBES TO FLAGMAN TELECOM MOBILE APPLICATIONS, CUSTOMER ACKNOWLEDGES THE PHYSICAL LOCATION REGISTERED FOR CUSTOMER’S EQUIPMENT (PHONE, SOFTPHONE, DTA OR VIDEOPHONE) WILL BE THE PHYSICAL LOCATION REGISTERED FOR THE MOBILE APPLICATION ASSOCIATED TO THE EQUIPMENT. FLAGMAN TELECOM’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT, MOREOVER, ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY FLAGMAN TELECOM WILL BE EXCUSIVELY BASED UPON THE PHYSICAL LOCATION ONLY PROVIDED TO FLAGMAN TELECOM BY CUSTOMER, AND SUCH FACTS ARE FULLY ACKNOWLEDGED BY THE CUSTOMER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, FLAGMAN TELECOM MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO ADDRESSE ASSOCIATED WITH THE CUSTOMER’S ACCOUNT OR INITIAL ORDER BY PROVIDING IT TO THE LOCAL EMERGENCY SERVICE OPERATOR. IN CASE FLAGMAN TELECOM IS CHARGED ANY ADDITIONAL FEES IN CONNECTION WITH OR STEMMING FROM THE FAILURE OF THE CUSTOMER TO PROVIDE THE ADDRESS INFORMATION AS PER ABOVE, CUSTOMER SHALL FULLY REIMBURSE TO FLAGMAN TELECOM ANY SUCH FEES.
7.6. SERVICE CHARGE FOR E911. A MONTHLY E911 SERVICE CHARGE IS APPLICABLE TO CUSTOMERS SUBSCRIBING TOFLAGMAN TELECOM E911 SERVICE. THE MONTHLY E911 SERVICE FEE SHALL BE ADDED TO THE APPLICABLE SERVICE FEES FOR THE INITIAL SERVICES PER PHONE NUMBER. THE MONTHLY E911 SERVICE CHARGE IS SET ON A “PER-LINE” BASIS (THAT IS, PER PHONE NUMBER BASIS). A MONTHLY E911 SERVICE CHARGE WILL BE SET IN THE AMOUNT THAT REIMBURSES FLAGMAN TELECOM FOR THE DIRECT COSTS IT INCURS IN PROVIDING FLAGMAN TELECOM E911 SERVICE, INCLUDING EXPENSES FLAGMAN TELECOM INCURS(DIRECTLY OR INDIRECTLY) IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES (DIRECTLY OR INDIRECTLY)IMPLIED WITH THE PROVISION OF SERVICES. IN CONNECTION WITH INCREASES OR DECREASES OF THE BORN COSTSFLAGMAN TELECOM SHALL HAVE THE RIGHT TO CHANGE THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES. (SECTION 20 FOR CHANGES TO THE AGREEMENT, SERVICES, SERVICE PLAN IS REFERRED).
7.7. DESCRUPTION OFE911 CHARACTERISTICS. CERTAIN CHARACTERISTICS OF FLAGMAN TELECOM E911 SERVICE MAKE IT DIFFERENT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE, WHICH FACT IS ACKNOWLEDGED BY THE CUSTOMER. DUE TO THESE CHARACTERISTICS SOME CUSTOMERS MAY FIND FLAGMAN TELECOM E911 SERVICES UNAVAILABLE. CUSTOMER UNDERTAKES TO CAREFULLY ASSESS CUSTOMER’S OWN CIRCUMSTANCES WHEN EXCLUSIVELY RELYING ON FLAGMAN TELECOM E911 SERVICE.CUSTOMER IS FULLY AWARE AND ACKNOWLEDGES THE WHOLE RESPONSIBILITY OF DECIDING UPON THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST FOR EMERGENCY CALLING, AS WELL AS PROVIDECONTINOUS ACCESS TO EMERGENCY CALLS (CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS).
BELOW CHARACTERISTICS DISTINGUISH FLAGMAN TELECOM E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUITSWITCHED 911 SERVICE:
** FLAGMAN TELECOM E911 SERVICE WILL NOT OPERATE IN CASE OF FAILURE OF CUSTOMER’S DTA, PHONE OR VIDEOPHONE OR INCORRECTCONFIGURATION OF THE LATTERS, OR IF SERVICE PROVIDED BY FLAGMAN TELECOM FAILS TO FUNCTION FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGES, BROADBAND SERVICE OUTAGES, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING AND/OR OTHER ISSUES AS SUCH. IN THE EVENT OF POWER OUTAGE, RESET OR RECONFIGURATION OF THE EQUIPMENT MAY BE REQUIRED PRIOR TOUSAGE THE FLAGMAN TELECOM SERVICE, INCLUDING FLAGMAN TELECOM E911 SERVICE.
** UPONINITIAL ACTIVATION OF THE E911 SERVICE, AS WELL AS ANY CHANGE OF CUSTOMER’S PHYSICAL LOCATION, THE PASSAGE OF INFORMATION ON AUTOMATIC NUMBER AND LOCATION TO THE LOCAL EMERGENCY OPERATOR MAY TAKE CERTAIN PERIODS OF TIME WHICH MAY CAUSE SOME DELAYS. BEFORE THE ACTIVATION OF THE SERVICE THE ABVE REFERRED IS POPULATED INTO FLAGMAN TELECOM’S NOMADIC E911 DATABASES, HOWEVER NO GUARANTEE CAN BE MADE AS SUCH THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THE SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR MAY POSSIBLY LUCK A SYSTEM CONFIGURED FOR E911 SERVICES OR DUE TO CERTAIN REASONS CANNOT BE ABLE TO CAPTURE AND/OR RETAIN DATA ON AUTOMATIC NUMBER OR LOCATION. CONSEQUENTLY, THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON MAKING THE FLAGMAN TELECOM E911 CALL CAN BE UNKNOWN TO EMERGENCY OPERATOR.
** THERE IS A HIGH POSSIBILITY OF A FLAGMAN TELECOM 911 CALL PRODUCING A BUSY SIGNAL OR EXPERIENCING UNFORESEEN ANSWERING WAIT TIMES AND/OR TAKING LONGER TO ANSWER THAN 911 CALLS MADE VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS. THE ABOVE DESCRIBED AMONG OTHER UNFOREEEN REASONS MAY OCCURR DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE FLAGMAN TELECOM NETWORK.
** FLAGMANTELECOM E911 CALLS MAY NOT BE DIRECTED TO THE CORRECT RESPECTIVE LOCAL EMERGENCY OPERATOR IN THE EVENT OF INCORRECT IDENTIFICATION OF THE LOCATION OF THE FLAGMAN TELECOM EQUIPMENT BY THE CUSTOMER.
7.8. E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER FULLY ACKNOWLEDGES AND WHOLLY AGREES THAT FLAGMAN TELECOMIN ANY CASE WILL NOT BE HELD LIABLE FOR (a) ANY SERVICE OUTAGE (b) AND/OR INABILITY TO DIAL 911 OR ANY OTHER TELEPHONE NUMBER USING EMERGENCY(c) OR FAILURE/INABILITYTO ACCESS AN EMERGENCY SERVICE OPERATOR FOR THE REASON OF THE 911 DIALING AND OTHER CHARACTERISTICS AND/OR LIMITATIONS PRESCRIBED IN THE PRESENT AGREEMENT.
CUSTOMER AGREES AND UNDERTAKES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS FLAGMAN TELECOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER, FROM ANY CLAIMS, LOSSES, PENALTIES, FINES, DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY( OR ON BEHALF OF) CUSTOMER OR ANY THIRD PARTY OR CUSTOMER OF CUSTOMER OR AGENT OF THE SERVICE, IN RELATION TO THE FAILURE AND/OR OUTAGE OF THE SERVICE, INCLUDING,BUT NOT LIMITES TO THOSE RELATED TO 911 DIALING.
For the purposes of Services rendering, Equipment may be provided to Customer by Flagman Telecom, which is conducted at the premises of Flagman Telecom. Flagman Telecom’s shall not be held liable for proper execution of delivery, and title (if applicable) together with all risk of loss or damage shall be transferred to Customer from the moment of acceptance by the Customer or the carrier authorized by the latter. A twelve (12) month manufacturer’s warranty is provided to the Customer. The warranty term commences from the date of purchase of Equipment. The Equipment replacement can be done by Flagman Telecom provided that (A) the Equipment is deemed to be defective by Flagman Telecom and (B) it is covered under the warranty terms.
Flagman Telecom will not in any case whatsoever cover replacement for lost, stolen or modified equipment Flagman Telecom shall refuse any equipment, which is returned by the Customer and is not covered by the warranty. If such situation occurs, the Customer will bear return charges, including but not limited to shipping charges, if any.
9. CUSTOMER DATA.
Flagman Telecom is hereby granted a non-transferable, non-exclusive, (except in relation to an assignment of the present Agreement) license to copy, store, record, transmit, display, view, print, and use Customer Data, solely to such extent, which is necessary for proper and diligent rendering of the Services to Customer. No right, title, interest, license in the Customer Data is given to Flagman Telecom by the Customer, and Customer hereby reserves all rights in and to all Customer Data, unless otherwise is expressly envisaged by the present Section.
10. BILLING, CHARGES AND PAYMENT EXECUTION.
10.1. SERVICE FEES PAYMENT. Customer undertakes to pay in full the Service Fee for Services ordered by the latter, as well as all other amounts/payments due under the Agreement, as per the provisions of the Section 10 hereunder.
10.2. BILLING. A monthly on-line billing statement for the Services rendered each calendar month shall be handed to the Customer, as well as all charges invoiced to Customer’s account will be billed by Flagman Telecom. The said charges shall include activation fees, monthly service Fees, disconnection fees, shipping and related charges, equipment charges, toll charges, taxes and any other reasonably applicable charges. All the charges are billed and paid in advance. All the billed fees and charges shall be paid within fifteen (15) calendar days upon receipt of the corresponding bill. Monthly Service Fees Billing starts upon ordering of the Services, however the first month’s Monthly Service Fee shall be prorated to consider any partial calendar month that can possibly occur depending on the date Monthly Service Fees are initiated. In case regardless of cause Flagman Telecom has charged less than due, Flagman Telecom may at any time conduct recalculation and charge the unpaid remainder.
10.3. DELAY/NON-PAYMENT. Flagman Telecom is authorized to suspend or terminate the Services if any charges for the Services are due but unpaid in timely and proper manner for any reason whatsoever. In the event of the occurrence of the situation above all accrued charges shall be immediately due, also a late fee of the greater of twenty-five dollars ($25.00) and 1.5% per month may be applied. For the purposes of activation of a suspended account a separate fee is applicable and will also be charged. Any suspension and/or termination of the Services or of the present Agreement shall not relieve Customer from paying the amounts due hereunder.
10.4. TAXES. Prices for the Services hereunder are exclusive of any customs duties, sales, use, value added, excise, federal and/or state, local, public utility, universal service or other taxes. All such taxes shall be added and paid by Customer unless Customer submits to Flagman Telecom an appropriate valid exemption certificate., Applicable taxes may not be refundable regardless of any paid amounts of Services being refunded by Flagman Telecom.
10.5. REGULATORY RECOVERY FEE PAYMENT. A regulatory recovery fee shall be charged monthly in advance to offset costs incurred by Flagman Telecom in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. The fee at hand is not a tax or charge whatsoever required or assessed by any government. The regulatory recovery fee is applicable to every phone number assigned, including toll free and virtual numbers.
10.6. DISCONNECTION AND OVERAGE FEES. If Service Plan associated to a physical telephone or DTA is terminated by the Customer within twelve (12) months period upon the initial purchase of the Services, Flagman Telecom shall charge a service disconnection fee of fifty-nine dollars and ninety-nine cents ($59.99) for each unit of physical telephone or DTA. If a Service Plan is terminated by the Customer within twenty-four (24) months upon the initial purchase of the Services, Flagman Telecom shall charge a disconnection fee of two hundred dollars ($200.00) for each unit. If a Flagman Telecom VoIP QoS Management Service or video services are terminated by the Customer service within twelve (12) months of the initial purchase of the Services, Flagman Telecom shall charge a disconnection fee of ninety-nine dollars and ninety-nine cents ($99.99). Upon notification to Flagman Telecom on the Services cancellation, disconnection fees shall be invoiced to Customer. In the event of termination by the Customer of the Agreement, or some of the Services provided under the Agreement prior to the expiry of the Initial Term or any Renewal Term (hereinafter referred to as the “Terminated Term”),in addition to the applicable Disconnection fees, Flagman Telecom shall charge and Customer shall pay the early termination charge in the amount of 100% of the Monthly Service Fee for the scope of the terminated Service(s) multiplied by the number of months remaining in the Terminated Term as of the date of termination.. The early termination charge is in addition to the full Monthly Service Fee subject to payment as per the Section 6.3 for the month of the said termination. If the Initial Term is Terminated Term, Flagman Telecom will also charge the Customer, and the Customer will pay, any unpaid non-recurring charges waived at the beginning of the Initial Term. Flagman Telecom reserves the right to charge overage fees when the Customer exceeds the reasonable usage limits on applicable services which includes, but is not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not consented to be included in such a process and/or any other activity that would be inconsistent with reasonable business usage as such, or any other high volume usages, which Flagman Telecom was not in prior informed of in proper manner. All the fees, including but not limited to Service Fees, subject to payment in accordance with corresponding Service Plan at hand shall be deemed non-refundable and non-creditable.
10.7. CHANGES OF THE RATES. Flagman Telecom reserves the right to change the prices for the Services and toll charges from time to time without any limitation of any kind. The prices, Service Plans, taxes, fees change may be applied without any advance notice to Customer. For one, two, three or five-year Service Plans using Customers, in the course of the Initial Term rates will not be increased, except for the tax or fee changes and international toll calling rates. If a change in prices or toll charges occurs (not international), such changed rates will be published and made available at the website currently located at http://www.flagmantelecom.com. International toll calling rates/their changes are made available at the website currently located at http://www.flagmantelecom.com as well. The Service Fees effective from the moment of any renewal of the Agreement shall be deemed as then-current Service Fees of Flagman Telecom for the corresponding Services.
10.8. SERVICES AVAILABILITY. Customer fully acknowledges and wholly agrees that the Services may not be available 100% of the time. NO Credit allowances or reimbursements for Services interruption due to any reason whatsoever shall be claimed and/or provided.
10.9. DISCOUNTS. Flagman Telecom reserves the right to offer promotions and/or discounts of activation or other fees of any kind in its sole discretion and in time periods solely decided by Flagman Telecom. Any promotion or discount codes must be submitted by the Customer to Flagman Telecom upon purchase of the Services. Customer shall not be entitled to a subsequent credit stemming from such promotions and/or discounts, if such credit is not requested at the moment of creation of the account or service change. Promotions and/or discounts shall not be used cumulatively or for the services retroactively.
10.10. BILLING DISPUTES. Any charges for the Services can be disputed by the Customer within thirty (30) calendar days from the date of the charge by Flagman Telecom by submitting the written justified statement to Flagman Telecom. If Customer fails to provide the aforesaid statement in the above referred term, any objection and further recourse with regard to such charges shall be fully waived by the Customer. Written statements are considered valid if sent to the following address and/or email address: Billing Department, Flagman Telecom, Inc. 1200 Valley View Rd #203, Glendale, CA 91202 -or- 229 North Central Ave #201, Glendale, CA 91203 -or- [email protected]
11. TOLL CHARGES.
Each and every call to or from Equipment via usage of the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including but not limited to other VoIP networks, is subject to the applicable at the moment toll charges associated with the respective Service Plan at hand, which will be included in bills by Flagman Telecom and will be paid by the Customer. Calls to a non-Flagman Telecom telephone number to a phone number located outside the territory of the United States and Canada will be charged at the then current rates in force which are published and made available on the Flagman Telecom website. The duration of each call shall be calculated in one-minute increments and rounded up to the nearest higher oneminute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest higher whole cent, and if the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When dialing an international PSTN phone number, regardless of the fact whether the call is answered by the party on the other line, charges may be calculated and applied. Calls which are made to an international mobile (rather than landline, premium rate telephone number) may result in calculation and application of higher toll charges.
12. TELEPHONE NUMBER.
Any telephone number with which (hereinafter referred to as “Number”, “DID”) the Customer is provided with by the Flagman Telecom is deemed to be not sold but leased. Customer shall refrain from using the Number with any other device different than the Equipment, unless the express permission of Flagman Telecom in writing is acquired. Flagman Telecom at its sole and free discretions authorized to cancel, change, adjust or move the Number.
13. SERVICES USEMONITORING EXECUTION.
Customer GIVES CONSENT to monitoring by Flagman Telecom Customer’s use of Service. The said Monitoring is executed at Flagman Telecom’s expense and by its own means.
14. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT.
Unless the express permission of Flagman Telecom in writing is acquired, Customer is not entitled to modify the Equipment in any way whatsoever when using with the Services provided by Flagman Telecom. The Equipment cannot be used by the Customer in any other possible way except with the Services. Unless any provision to the contrary is contained hereunder, Customer bears full responsibility for all lost, stolen, broken Equipment that has been acquired for the purposes of the Services provision and shall be required to purchase a replacement to continue receiving Services. Replacement charges will be based on the fair reasonable retail price of the equipment, as well as the applicable shipping costs and taxes are calculated added. Flagman Telecom shall immediately be notified by the Customer of any stolen, lost Equipment and shall make reasonable efforts to cooperate with Flagman Telecom for eliminating the actual and/or potential nonauthorized Equipment usage. Upon Flagman Telecom’s sole discretion, if the Customer fails to report lost or stolen equipment in a due timely manner, the Customer shall be held responsible for all Service Fees accrued up till the moment that Flagman Telecom is informed of the said loss or theft. Flagman Telecom is also authorized to unilaterally terminate the Services and Agreement in the event of the breach of the present Section by the Customer.
15. PROHIBITED USAGE.
Any kind of use of the Services or any other action, causing the network integrity breakdown, or directly or indirectly threatening and/or compromising Flagman Telecom and its security, its vendors, and/or the Services in general, is under prohibition and authorizes the unilateral termination of the Services and the Agreement by Flagman Telecom without serving any prior notice whatsoever. Customer fully accepts and acknowledges that Flagman Telecom and its vendors are not in any extend responsible for the transmissions content o transferred through the Services and/or the Internet. Customer refrains from using the Services in such ways that violate applicable laws in force, breach the rights of third parties, or unlawfully interfere with the users, Agents, services, or equipment of the network. Customer warrants that the Services and/or the Equipment are provided for solely its personal internal use, and shall not resell, transfer or charge for the Services and/ or the Equipment unless expressly communicated permission of Flagman Telecom in writing is provided. Unlimited minutes of calls or unlimited faxing offered by Flagman Telecom’s Service Plans are for reasonable business use of Customer only. Such unlimited use excludes certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not consented to be included in such a process and/or any other activity that would be inconsistent with reasonable business usage as such. Customer refrains from using the Services to send unsolicited commercial e-mails to such recipients which are outside Customer’s company. Customer refrains from transmit ting through the Services any unlawful, harassing, defamatory, abusive, threatening, or otherwise objectionable content. Customers further agrees and undertakes refrain from transmitting any content directly/indirectly encouraging any action which allegedly could imply criminal offense, violation of the IPR, gives rise to civil liability or violates any applicable local, state, national, international statute, regulation, or other law in any other way. Any use incompliant with the stipulation above or misusage of the unlimited call service or fax service plans by the Customer authorizes Flagman Telecom to modify the Services of any Customer using Service Plans with the immediate effect.
16. USE, STORAGE AND OTHER LIMITATIONS.
Establishment and adjustment of general practices and limits concerning use of the Services and Software are exclusive right of Flagman Telecom., The letters include without limitation, the maximum period (number of days) in the course of which content the Service will retain content, the maximum disk space and/or bandwidth capacity allotted on servers owned and/or operated by Flagman Telecom on Customer’s behalf, if any of such exist. Flagman Telecom may also serve prior notice to Customer informing of such new/modified practices notwithstanding any provision to the contrary above that Flagman Telecom reserves the absolute right of executing such new/modified practices without any kind of prior notice whatsoever and without express or implied liability of any kind.
17. ELECTRONIC RECORDING.
Federal and state statutes governing the electronic recording of telephone conversations are applicable and Flagman Telecom cannot be held liable for any unlawful use of the service, which is fully acknowledged by the Customer. Circumstances should be carefully considered by the Customer when deciding upon the usage of the recording features of the service. The Customer bears responsibility of determination of the legality of the electronic recordings under applicable federal and state laws. Flagman Telecom is not responsible for any wrong interpretation, lack of understanding or knowledge related to the use of electronic recordings by the Customer, and Customer will indemnify and hold Flagman Telecom harmless for any claims, damages, fines, or penalties stemming from Customer’s failure to comply with applicable electronic recording regulating laws. Electronic recording policy of Flagman Telecom is made available at http://flagmantelecom.com/legal/ The letter provides additional necessary information on electronic recording and is incorporated by the present reference in the Agreement.
18. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS.
Customer is solely held liable for preserving the confidentiality of Customer’s Login, and undertakes not to transfer Login or password, or otherwise transfer use of or access to the Flagman Telecom Services, to any third party whosoever. Customer bears full sole responsibility for any and all the scope of activities undertaken and occurring under Customer’s account. Customer undertakes to adhere to applicable foreign, federal, state, and local legislation in the course of its use of the Services, including but not limited to online behavior, acceptable content, and equipment transfer regulating laws, as well as comply with applicable export and import laws. Use of the Services is considered void if and where prohibited. Customer undertakes to immediately notify Flagman Telecom of any possible unauthorized use of Customer’s account or any other security breach of the Customer’s account or the Services.
Customer will ensure that the latter conducts a “log off”/exit from Customer’s account (if applicable) at each session end. Any loss or damage stemming from Customer failure to comply with any of the present obligations cannot be attributed to Flagman Telecom.
Customer also undertakes to: (a) provide certain current, complete, and accurate data when supposed to do so by the Services, and (b) maintain and such information. Customer warrants that any piece of such information will be accurate and compete. Customer acknowledges that Customer is solely liable for the content of all communications of any kind (hereinafter referred to as “Content”) sent, displayed or uploaded by Customer in the course of using the Services. Although Flagman Telecom is not responsible for any such communications, Flagman Telecom reserves the right to delete at any time without notice to Customer any communication, which is in breach of the applicable law in force, violates third party rights and/or Services or can directly/indirectly harm Flagman Telecom, of which Flagman Telecom becomes aware. The copyright and any other related rights of the Customer towards the content that Customer submits, posts or displays on or through, the Services is fully retained. Customer understands and agrees that by displaying, exchanging or uploading Content to a Flagman Telecom web portal, transmitting Content using the Services or otherwise providing Content to Flagman Telecom, Customer automatically grant (and warrant and represent Customer has a right to grant) to Flagman Telecom a world-wide, royalty-free, sub-licensable (so Flagman Telecom affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including associates websites and or web portals (hereinafter referred to as “Sites”). Notwithstanding any provision to the contrary above, Customer is the sole responsible person for web portal use personal instruments (login, username, passwords) provision to the third parties, and shall solely bear all the consequences.
19. RESPONSIBILITY FOR CONTENT OF OTHERS.
Customer fully accepts and acknowledges that Agents or other users of the Services (hereinafter referred to as “Users”) may act in violation of the prohibitions stipulated above by the Section 18, however Flagman Telecom bears no responsibility and/or liability for any and all of the violations. In the event of becoming aware of misuse of the Services, the Customer, shall immediately contact Flagman Telecom Customer Support at 1-844-800-8008. Flagman Telecom may investigate any complaints and violations communicated and may take any action deemed appropriate, including, but not limited to warnings, content removal or accounts termination and/or User or Agent profiles and/or Login termination.
Notwithstanding any provision to the contrary set above, Flagman Telecom reserves the right to refrain from any action whatsoever.
Under no circumstances possible will Flagman Telecom held be liable for any data or other content published on a Site, viewed or actions taken in the course of using the Services, including, but not limited to, any errors or omissions in any such data, content or activity, or any loss or damage incurred as a result of the use of, access to, or denial of access to any data whatsoever, content or activities occurred from the actions taken on a Site. Flagman Telecom does not control what Users post, submit to or do on a Site.
Customer fully acknowledges that Flagman Telecom has no means to guarantee the accuracy of any information submitted by any User, nor any identity data related to any User. Flagman Telecom is authorized, in its sole discretion, to reject posting of any data, as well as to restrict, suspend, or terminate any User’s access to all or any part of Services or any Site at any time period, for any or no reason at all, with or without serving prior notice, and without any express or implied liability. Flagman Telecom reserves the right of investigating and taking corresponding action against anyone who, in Flagman Telecom’s full sole discretion, is allegedly suspected of violating the present Agreement, including but not limited to, reporting Customer or any User to law enforcement authorities.
20. CHANGES TO THE PRESENT AGREEMENT, SERVICES AND/OR SERVICE PLAN.
Flagman Telecom has exclusive right to make changes in the terms and conditions of the present Terms and Conditions and/or the Services (hereinafter referred to as “Change of Service”). In case of a Change of Service, Flagman Telecom will update the website currently located at http://www.flagmantelecom.com/legal/. Customer is entitled to request a Service Plan change at any time. The Service Plan change will commence in the first month following the Service Plan change., An equipment charge is applied if the Service Plan is changed to a plan that requires a purchase of the Equipment.
Notice will be deemed properly served and received by Customer and such changes will become mandatory and binding to Customer, on the date the changes are published at http://www.flagmantelecom.com/legal or any other websites owned and/or managed by Flagman Telecom (hereinafter referred to as “Change Date”).NO additional notice shall be required. If Customer does not serve Flagman Telecom with notification on the Agreement termination as per the Section 6. Above, or continues using the Services after the Change Date, Customer is considered to have accepted and consented to the change of terms and conditions of the Service. If Customer does not accept and consent to the change of service and terminates the present Agreement, Customer will be held responsible for any sums due hereunder in addition and regardless of any applicable Disconnection Fee.
23. RETURNS AND ADJUSTMENTS.
Any Equipment returned to Flagman Telecom without prior proper authorization for its return or proper packaging shall may be refused to be accepted. All costs related to shipping to Flagman Telecom of any Equipment being returned are born by the Customer. For obtaining an appropriate refund, Customer must immediately upon cancellation obtain a return material authorization number from Flagman Telecom, return to Flagman Telecom any Equipment provided herein undamaged and in good appropriate working condition, in its original packaging and with its original content or otherwise the Customer will be immediately responsible for paying to Flagman Telecom an amount equal to the fair reasonable retail price of the equipment deducting any payments Customer had previously paid specifically for such Equipment. Notwithstanding any provision to the contrary herein, Flagman Telecom shall charge restocking fees from Customer at its sole discretion.
24. TECHNICAL SUPPORT PROVISION.
Technical support for the Services and the Equipment is provided by Flagman Telecom to Customers via telephone and/or e-mail. Support for other applications and uses is not provided or implied, Flagman Telecom has no obligation whatsoever to provide additional technical support.
If Customer fails to comply with the terms of the Agreement, including, but not limited to, failure to pay any sum due hereunder in proper manner, Customer, notwithstanding any provision to the contrary set under the Section2, shall fully reimburse Flagman Telecom for all attorneys’ fees and court, collection and other costs incurred by Flagman Telecom in the course of enforcement of Flagman Telecom’s rights hereunder and Flagman Telecom shall be entitled to keep any deposits or other payments made by Customer.
Customer undertakes to defend, indemnify and hold Flagman Telecom, and its affiliates, directors, officers, employees, attorneys, agents, and vendors harmless from any claims or damages relating to or arising out of the present Agreement.
Flagman Telecom hereby warrants that the Services will generally comply with the Documentation during the term of the present Agreement. Flagman Telecom will use commercially reasonable efforts and act in good faith to pass through to Customer equipment warranties of the manufacturers.
28. DISCLAIMER OF WARRANTY.
EXCEPT AS EXPRESSLY ENVISAGED BY SECTION 27 OF THE AGREEMENT, THE PRODUCTS AND OTHER SERVICES N ARE RENDERED/PROVIDED “AS IS” AND FLAGMAN TELECOMDOES NOT MAKE ANYWARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FLAGMAN TELECOMAND ITS VENDORS WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TRANSMISSION FACILITIES OR EQUIPMENT OF FLAGMAN TELECOM OR CUSTOMER OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER OR MEANS, IRRESPECTIVE OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF FLAGMAN TELECOM’S OR ITS VENDORS’ NEGLIGENCE.
FLAGMAN TELECOMAND ITS VENDORS WILL NOT BE LIABLE FOR MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN FLAGMAN TELECOM. FLAGMAN TELECOMANDITS VENDORS WILLNOT BE LIABLE FOR DELAYS OR INTERUPTIONS IN ACCESS TO OR USE OF THE SERVICES RESULTING FROM CUSTOMER’S EQUIPMENT, THE INTERNET USAGE, OR TELECOMMUNICATIONS SYSTEMS OUT OFFLAGMAN TELECOM’S CONTROL, AND FLAGMAN TELECOM SHALL BEAR NO RESPONSIBILITY FOR ANY SUCH DELAYS OR INTERRUPTIONS.
29. EXCLUSIVE REMEDY.
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WHICH FLAGMAN TELECOMMAY BEENTITLED TO CHOOSE IS REPAIR, REPLACEMENTOR, REFUND.
30. LIMITATIONS OF LIABILITY.
IN NO CIRCUMSTANCES SHALL FLAGMAN TELECOMAND/OR ITS VENDORS BE HELD LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREIN WHETHER DUE TO A VIOLATION AND/OR BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF FLAGMAN TELECOMAND/OR ITS VENDORS OR OTHERWISE. IN NO CIRCUMSTANCESSHALL FLAGMAN TELECOM’S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO FLAGMAN TELECOM IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM COMMENCING.
31. EXPORT COMPLIANCE.
Customer FULLY agrees to adhere to U.S. export laws, and applicable export and import laws that may apply in location(s) of Customer), concerning the transmission of technical data and other regulated materials via the Services.
32. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE.
From the moment of expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue usage of any Numbers, voice mail access numbers, Logins and/or web portals of Sites delegated to Customer by Flagman Telecom and/or its vendors.
33. SOFTWARE COPYRIGHT.
The Software is legally protected by the provisions of copyright law and stipulations of international treaty provisions. The Software is subject to the terms and conditions in licenses of third parties, and Flagman Telecom will use commercially reasonable efforts to pass through licenses for Software sublicensed to Customer in providing Flagman Telecom’s Services. Customer has no right and undertakes not to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create any Software, except to such extent that Customer is expressly permitted to decompile the Software under applicable law and Customer immediately notifies Flagman Telecom in writing of Customer’s intention to decompile the Software and Customer’s grounds to do so.
The provisions of sections 2, 6.3, 7, 10, 22, 23, 25, 26, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, and 42 shall survive any expiration or termination of the present Agreement.
Flagman Telecom organizes the communication with Customers primarily via email. Notices to Customer shall be sent to the email address specified by Customer at the time moment of ordering the Services or as clarified later (hereinafter referred to as “Email Address”). Customer bears responsibility for notifying Flagman Telecom of any Email Address changes.
Customer agrees that sending a message to the Email Address is the mutually agreed upon and acceptable means of providing notification. Email is used also to communicate important information about the Services, billing, changes to the Services and other information necessary. The information is of time-sensitive nature. The Customer is required to read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provision. All notices and communications to be sent to Flagman Telecom under the present Agreement shall be in written form or electronic (which is also shall be considered by the Parties as in written) and sent correspondingly to the address or email address below: Director of Customer Service, Flagman Telecom, Inc. 1200 Valley View Rd #203, Glendale, CA 91202 -or- [email protected]
36. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL).
Flagman Telecom and the Customer should not bear responsibility for failure to fulfill this Agreement in part or full, if that failure is a consequence of natural disaster, fire and etc. If any of these circumstances has directly influenced the failure of the accomplishment of the obligations within the time period the period of the Agreement is prolonged with the duration of those circumstances.
The Party on accomplishment of the obligations of which that circumstance influenced undertakes to immediately notify the counter party in writing.
The Party reserves the right to resale from the present contract if in consequence of force majeure the delay of the time periods makes more than 3 (three) months.
37. ENTIRE AGREEMENT.
The terms and conditions of the Agreement, together with the rates posted to the website currently located at http://www.flagmantelecom.com/legal or otherwise agreed to as part of the Agreement (if applicable), constitute the entire agreement with regard to this sale and expressly supersede and replace any prior agreements, written or oral communications exchanged between the parties, relating to the Services. The terms and conditions of the Agreement are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY TOTALLY OBJECTED TO BY FLAGMAN TELECOM, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREIN AND SHALL NOT BE BINDING IN ANY WAY ON FLAGMAN TELECOM. Except as set forth in Section 20, no waiver or amendment to this Agreement or these terms and conditions shall be binding on Flagman Telecom unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of Flagman Telecom.
38. GOVERNING LAW.
The Agreement and the relationship between Customer and Flagman Telecom shall be governed by the State of California laws without regard to its conflict of law provisions referring to another state law. The UN Convention on Contracts for the International Sale of Goods is not applicable to the Agreement.
39. NO WAIVER.
The failure by Flagman Telecom to exercise or enforce any right or provision stipulated under the present Agreement shall not constitute and/or imply a waiver of such right or provision.
40. SEVERABILITY CLAUSE.
In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
41. ASSIGNMENT; BINDING EFFECT.
This Agreement shall not be assigned by the Customer, as well as Customer’s duties contained herein cannot in any way be delegated without Flagman Telecom’s expressly given prior consenting writing. The present agreement shall retain its binding force upon the heirs, successors, representatives, and permitted assigns of both Flagman Telecom and Customer.
The headings in the Agreement are incorporated for the reference convenience purposes only and shall not be granted any consideration in the construction or interpretation of the present Agreement.