Legal

Updated February 24, 2021


1. Acceptance of Terms

Dialwave, Inc., its officers, directors, agents, employees, and other designees provides Services subject to the following Terms of Service, along with all other agreements found at https://dialwave.com/legal (including, but not limited to, "Acceptable Use Policy," "Privacy Policy," etc.), which by this reference are incorporated herein ("Agreement"). This Agreement constitutes a legally binding agreement between Dialwave, Inc., a Delaware corporation with its primary office at 31 West 34th Street, 8th Floor, New York, NY 10001 ("Dialwave"), and any legal entity ("Customer") subscribing to, or otherwise using, the Services. Dialwave and Customer may be individually referred to as a "Party" or collectively as the "Parties."

This Agreement, including its terms and conditions, appendices, supporting documents, and other regulatory policies are subject to revision at any time, with or without notice. It is the responsibility of the Customer to understand, be aware of, and in compliance with, this Agreement at all times. Dialwave may, at its sole discretion, announce significant changes to this Agreement.

By subscribing to, or otherwise using, any of the Services, Customer warrants and represents that they: (i) are at least eighteen (18) years of age or the applicable statutory age of majority to enter into a legally binding agreement; (ii) acknowledge, read, understood, agreed to, and will comply with this Agreement; (iii) have the right, power, and authority to enter into this Agreement on behalf of the corporation, governmental organization, or other legal entity; (iv) have the right, power, and authority to bind the corporation, governmental organization, or other legal entity to this Agreement; (v) understand that using, or continuing to use the Services is an acceptance of this Agreement; and (vi) understand that this Agreement is legally binding.

IF CUSTOMER DOES NOT AGREE TO ANY PART OF THIS AGREEMENT, CUSTOMER MUST NOT USE THE SERVICES.

2. Definitions

"Account" means the unique account established by Dialwave and associated with Customer and the Services provided to Customer under this Agreement.

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

"Confidential Information" means any information disclosed by or on behalf of the Disclosing Party) to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.

"Customer" means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity on behalf of which such individual is accepting this Agreement, as well as Affiliates of such company or entity (for as long as they remain Affiliates) which have made Purchases.

"Customer Data" means the content of calls, facsimiles, messages, voicemails, voice recordings, shared files, conferences, call meta-data, configuration data, or other communications transmitted or stored through the Services.

"Disclosing Party" means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party's agents, including but not limited to, its Affiliates, officers, directors, employees, attorneys, and other representatives.

"Effective Date" means the date on which Customer first subscribes to any of the Services.

"End User" means an individual user to whom Customer makes the Services available, and may be a natural person, and may include, but is not limited to, Customer's employees, consultants, clients, external users, invitees, contractors, and agents.

"Fees" means collectively, Fixed Fees, Usage Fees, and any and all other applicable charges and fees.

"Internal Calling" means calls made between End Users of the same Account and not terminating outside of the Dialwave Network.

"Law" means any law, statute, regulation, rule, ordinance, administrative guidance, treaty, convention, and/or court, administrative order, and/or ruling of any governing Federal, State, local, or non-U.S. governmental body with jurisdiction over the Services, the Customer, and/or the Customer's use of the Services.

"Payment Card" means a valid credit or debit card issued by a financial institution.

"Purchase" means an order for Dialwave's Services, which is placed through the Dialwave Dashboard, the Site, or e-mail.

"Receiving Party" means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees, attorneys, and other representatives receiving Confidential Information.

"Services" means any of the services (including any improvements, modifications, enhancements, fixes, updates, upgrades, and versions) made available to Customer by Dialwave, including Dialwave Talk (enterprise-class voice, fax, Short Messaging Service (SMS), Multimedia Messaging Service (MMS), call handling, audio conferencing, extension-to-extension calling, the ability to make/receive calls to and from the Public Switched Telephone Network (PSTN), mobile apps, and bring your own device (BYOD) capability that integrates with a growing list of applications) and Dialwave Wireless (enterprise-class Internet of Things (IoT) and Machine to Machine (M2M) connectivity over 2G, 3G, 4G LTE, and LTE-M networks).

"Taxes" means any and all federal, state, local, municipal, foreign, and other taxes and fees charged or collected from Customers.

"Dialwave Network" means the network, and supporting facilities, between and among the Dialwave points of presence ("PoP(s)"), up to and including the interconnection point between the Dialwave's network and facilities, and the public Internet, private IP networks, and the PSTN. The Dialwave Network does not include the public Internet, a Customer's own private network, or the PSTN.

"Dialwave Dashboard" or "Dashboard" means the online dashboard through which Customer controls Account settings and monitors usage of Account(s).

"Site" means the dialwave.com website.

3. Term and Termination

3.1 Term

This Agreement will remain in effect until terminated by either Party in accordance with this Section.

3.2 Termination

Customer may terminate this Agreement at any time, for any reason, with or without notice. Dialwave may terminate this Agreement with fifteen (15) days notice when: (i) Customer breaches any material term of this Agreement and fails to resolve such breach within fifteen (15) days after receipt of such notice; (ii) any other situation where Dialwave, at its sole discretion, is required to terminate this Agreement to protect the integrity of its Services. Dialwave will, at its sole discretion, act immediately, and without notice, to suspend Services and terminate this Agreement if Customer's, or its End Users', use of the Services violates the terms of Dialwave's Acceptable Use Policy.

3.3 Effects of Termination

Customer will immediately cease to have access to, and will no longer be able to use, the Services. All telephone numbers associated with Customer's Account will be released if such numbers have not been ported to another provider prior to such cancelation or termination. Customer is solely responsible for coordinating with its new provider to port out any telephone numbers prior to termination of this Agreement. All Subscriber Identification Module (SIM) cards associated with Customer's Account will be released and the associated Integrated Circuit Card Identifier (ICCID) will be invalidated. Customer will be reimbursed any unused billing credits to the same payment source used to deposit the funds at the termination of this Agreement, less a processing fee.

4. Pricing, Billing, and Payment

4.1 General

All prices are shown, quoted, invoiced, and billed in US Dollars. Customer is responsible for fees imposed by Customer's financial institution for remitting payment, including, but not limited to, international credit card fees, currency conversion fees, and overdraft fees. Customer is liable for all charges resulting from use of the Services on its Account, including unauthorized use of Customer's Account. Dialwave may modify pricing for the Services upon seven (7) days written notice to Customer.

4.2 Dialwave Talk Pricing
Item DescriptionCostHow Billed
Phone Number - United States or Canada$5.00 USDPer Month
Toll-free Phone Number - United States or Canada$5.00 USDPer Month
Phone Number - InternationalVaries1Per Month
Caller ID Name (CNAM) Update$3.00 USDPer Occurrence
Caller ID Number (CID) / CNAM DisplayIncludedN/A
Enhanced 911 Service (E911)IncludedN/A
Internal CallingIncluded2N/A
Inbound Toll-free Call or Fax$0.060 USDPer Minute3
Inbound Toll-free Call with Call Forwarding to the Lower 48 United States or Canada2Inbound:
$0.060 USD
Forwarding:
$0.050 USD
Per Minute3
Inbound Toll-free Call with Call Forwarding to Alaska, Hawaii, or International Destinations2Inbound:
$0.060 USD
Forwarding:
Varies4
Per Minute3
Other Inbound Call or Fax$0.050 USDPer Minute3
Outbound Call or Fax to Alaska, Hawaii, or International DestinationsVaries4Per Minute3
Other Outbound Call or Fax$0.050 USDPer Minute3
Short Message Service (SMS) - United States or Canada$0.01 USDPer Message5
Multimedia Messaging Service (MMS) - United States or Canada$0.02 USDPer Message5
Number Port-In Fee$8.00 USDPer Number
Number Port-Out FeeIncludedN/A
Chargeback Fee$50.00 USDPer Occurrence
Collection Fee$100.00 USDPer Occurrence
Number Slam Fee$200.00 USDPer Occurrence

1 International phone number costs vary and are based on locality. The cost of each international phone number is displayed in the Dialwave Dashboard prior to purchase.

2 Calls forwarded to a phone numbers outside of Customer's Account will be deemed outbound calls.

3 Calls will be rounded up to the next full minute increment at the end of each call for billing.

4 International call rates vary and are based on the calling destination. A complete list of call rates can be found at https://dialwave.com/pricing/rates.

5 Long message content will be split into multiple billable segments based on received data encoding.

4.3 Dialwave Wireless Pricing
Item DescriptionCostHow Billed
New SIM Card Fee$1.50 USDPer Occurrence
SIM Card ActivationIncludedN/A
Data Usage - United States (Single Carrier - ATT Only)250MB:
$7.00 USD
500 - 1000MB:
$5.50 USD
1001 - 4000MB:
$3.75 USD
4001 - 8000MB:
$2.75 USD
>8000MB:
$2.50 USD
Per 250MB
Data Usage - United States (Multiple Carriers - ATT and T-Mobile)250MB:
$13.00 USD
500 - 1000MB:
$10.50 USD
1001 - 4000MB:
$7.50 USD
4001 - 8000MB:
$5.25 USD
>8001MB:
$4.00 USD
Per 250MB
Data Usage - Global (Multiple Carriers)250MB:
$45.00 USD
500 - 1000MB:
$40.50 USD
>1000MB:
$26.25 USD
Per 250MB
4.4 Free Trial

Dialwave, at its sole discretion, will determine whether Customer is eligible for a free trial to its Services. The free trial period is limited to fourteen (14) days from the Effective Date. Customer will be permitted to make inbound and outbound calls for a total of up to three hundred (300) minutes. Outbound calls are limited to destinations within the Lower 48 United States. Emergency Services are not enabled or available during the free trial period. To prevent uninterrupted service, at the end of the free trial period, Customer's account will automatically convert to a paid account with an initial account balance of one hundred US Dollars ($100.00 USD) charged to Customer's Payment Card.

4.5 Payment Card Authorization

By providing a valid Payment Card, Customer is expressly authorizing all Service charges, equipment charges, and fees to be charged to such Payment Card, including recurring payments. Payment Card payments are subject to the approval of the card issuer, and Dialwave will not be liable in any way if a card issuer refuses a charge for any reason. Customer is responsible for chargeback, collection, or any similar fees Dialwave is entitled to charge under this Agreement.

4.6 Taxes

All rates, 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 by competent authority.

4.7 Billing Dispute

If Customer reasonably, and in good faith, disputes any portion of Dialwave's charges, Customer must provide written notice to Dialwave within thirty (30) days of the charge, identifying the reason for the dispute and the amount being disputed. Customer's dispute will not excuse Customer's obligation to timely pay the undisputed portion of the invoice. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges.

4.8 Chargebacks

If Customer initiates a chargeback, Dialwave will: (i) immediately suspend Services; (ii) send Customer a notice using the contact information associated with Customer's Account; (iii) assess a chargeback fee of fifty US Dollars ($50.00 USD); (iv) immediately re-invoice and charge Customer's Payment Card the amount of the chargeback, including assessed fee; (v) terminate this Agreement for non-payment of any fees or charges which have not paid-in-full within seven (7) days.

Customer will remain liable for any amount due and Dialwave retains all rights to collect any amount due. Dialwave will assess a collection fee of one hundred US Dollars ($100.00 USD) for any amount remaining due after thirty (30) days.

4.9 Refunds

Dialwave does not provide refunds for phone numbers, account usage (voice and data), unused data, porting fees, or SIM cards. If Customer cancels a phone number after purchase, Dialwave cannot issue a refund on the purchase and cannot guarantee that Customer will be able to retrieve the same phone number at any point in the future.

5. Provision of Services

The Services are pre-paid and Services will not be provisioned until sufficient pre-payment is made to cover Customer's anticipated usage of Services. Customer must maintain a positive account balance at all times in order to continue using the Services. Dialwave will use reasonable efforts to send low balance notifications and make attempts to automatically charge Customer's Payment Card, as directed by Customer's account notification and top-up settings. Customer is solely responsible for maintaining a positive account balance with sufficient pre-payment to cover Customer's anticipated usage of Services.

Dialwave reserves the right to refuse to provide the Services to any Customer.

6. Use of the Services

6.1 Dialwave Talk

The Services require a a properly-configured, high performance, enterprise-grade broadband IP network and connection. Use of the Services with any network, services, or connection not compatible with the Services may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection. Likewise, 2G, 3G, LTE, or 5G networks are not recommended for use with the Services. Customer must provide and maintain, at its own cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection.

To minimize unauthorized use, Customer should: (i) disable international calling for which such calling activity is not needed or not authorized; (ii) restrict international calling destinations to those that are needed and authorized; (iii) block inbound calls from any caller and area codes from which Customer does not wish to receive calls and block inbound calls with no caller identification if appropriate; (iv) disable attachment of facsimile image and voicemail audio files to message notification e-mails for which such functionality is not required and to the extent that such files may include sensitive or confidential content.

6.2 Dialwave Wireless

Customer must provide and maintain, at its own cost, a device compatiable with the Dialwave-provided SIM card. Use of a device not compatible with the Dialwave-provided SIM may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection.

To minimize unauthorized use, Customer should restrict the use of each Dialwave-provided SIM card to the International Mobile Equipment Identity (IMEI) of the Customer-provided device.

7. Emergency Services

7.1 Introduction

Customer acknowledges and understands that Dialwave Wireless is not a traditional wireless service, is not designed for voice, and does not provide 911 service. Customer also acknowledges and understands that Dialwave Talk is not a traditional telephone service. Dialwave Talk telephone service connects to the Internet, which is different from a traditional telephone line.

THERE ARE IMPORTANT DIFFERENCES AND LIMITATIONS BETWEEN TRADITIONAL TELEPHONE SERVICES AND DIALWAVE'S SERVICES, AS SET OUT IN THIS AGREEMENT. CUSTOMER AND END USERS MUST BECOME FAMILIAR WITH THE LIMITATIONS OF DIALWAVE'S SERVICES AND FURTHER DIALWAVE'S 911 SERVICE.

7.2 Limitations

Dialwave's 911 service has certain limitations compared with traditional 911 service, which are as follows: (i) Dialwave's 911 service will not function in the event of a power outage; (ii) Dialwave's 911 service will not function if Customer's Internet service and/or connectivity is degraded, suspended, terminated, or otherwise unavailable or inaccessible; (iii) Dialwave's 911 service will not function if Customer's Service is suspended, terminated, or otherwise not unavailable or inaccessible; (iv) Dialwave's 911 service is only available from IP Desk Phones and softphones registered with Dialwave Talk; (v) dialing 911 will automatically route the call to a specialized call center that handles emergency calls and the call center may require additional information such as the caller's name and caller's physical address as that information may not always be available to the emergency operator answering the emergency call.

CUSTOMER AND END USERS THAT DO NOT UNDERSTAND ALL OF THESE LIMITATIONS OR ARE UNCOMFORTABLE WITH ANY OF THESE LIMITATIONS MUST NOT USE Dialwave'S 911 SERVICE AND MUST USE AN ALTERNATE MEANS OF REACHING 911.

7.3 Registering Your Location

Customer must, at Customer's own cost, purchase, or port in, a unique phone number to be used as the emergency calling ID for every physical address requiring emergency calling capabilities. Customer must associate a physical address with the unique phone number that will be used as the emergency calling ID. Customer must ensure that devices are configured with an appropriate emergency calling ID.

Once a device has been configured with an emergency calling ID, Customer must only use that device at the physical address associated with the emergency calling ID. If Customer moves the device to a new physical address, Customer must update the physical address associated with the emergency calling ID, or purchase a new unique phone number, as appropriate. It may take up to several hours for updates to take effect.

FAILURE TO UPDATE OR APPROPRIATELY MAINTAIN A DEVICE'S EMERGENCY CALLING ID WILL IMPACT 911 CALLS MADE FROM THE DEVICE AND THE EMERGENCY RESPONSE CENTER WILL NOT TRANSMIT ACCURATE PHYSICAL ADDRESS INFORMATION TO EMERGENCY RESPONDERS RESULTING IN DELAYED EMERGENCY ASSISTANCE.

Customer can, at any time, contact Dialwave for assistance in maintaining Customer physical address records and device physical address records. Customer is solely responsible for ensuring accurate and up-to-date physical address records and device emergency calling ID records are maintained.

7.4 Notification

Customer must notify employees, contractors, guests, and/or persons who may place calls using the Services or may be present at the physical location where the Services may be used, of the limitations of Dialwave's 911 Service.

7.5 Disclaimer of Liability

Customer's use (including employees, contractors, guests, third parties, and/or persons who may place calls using the Services), of Dialwave's 911 Services are subject to the limitations described herein. The availability of certain features, such as transmission of a physical address or your Dialwave telephone number, depends on whether local emergency response centers support those features, and other factors outside of Dialwave's control. Dialwave relies on qualified third parties to route emergency calls. Dialwave disclaims all responsibility for the conduct of all third parties involved in the provision of emergency call routing and emergency response services. To the extent permitted by applicable Law, you hereby release, discharge, and hold harmless Dialwave from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of, or response to, any emergency or 911 call.

Customer indemnifies and holds harmless Dialwave, and any third-party provider(s) from any and all third-party claims, losses, damages, fines, or penalties arising out of: (i) Customer or its End User's provision to Dialwave of incorrect information, including physical addresses, or failure to add or update a physical address; (ii) Customer's failure to properly notify any person who may place calls using the Services of the limitations contained within this Agreement; (iii) the absence, failure, or outage of emergency service dialing using the Services for any reason; or (iv) the inability of any End User to be able to dial 911 or access emergency service personnel for any reason.

8. Confidentiality

Confidential Information will be kept confidential by the Receiving Party and will not be disclosed to any other person, provided that each Party may disclose Confidential Information to its Affiliates, and its and their employees, agents and subcontractors who have a need to access and/or use the Confidential Information in order to perform or exercise such Party's rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. The Receiving Party must use the same care and discretion, but in no event less than a reasonable degree of care and discretion, to avoid disclosure as it uses with its own similar information that it does not wish to disclose, to safeguard the Confidential Information from unauthorized disclosure.

The term Confidential Information does not include any information that: (i) is, or becomes, generally available to the public other than as a result of a disclosure by the Receiving Party in violation of the terms hereof; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a source that is not known to the Receiving Party to be prohibited by a contractual, legal, or fiduciary obligation to the Disclosing Party from disclosing such information to the Receiving Party; (iii) is independently developed, conceived, or discovered by the Receiving Party; or (iv) is already known to the Receiving Party prior to disclosure of the same to the Receiving Party by the Disclosing Party.

9. Data Protection

Dialwave respects Customer's privacy and will only use the information provided by Customer to Dialwave or collected in the provision of the Services. Dialwave uses technical and operational safeguards designed to protect the Customer Data from unauthorized use or disclosure. Customer must protect all devices permitting access to the Services using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify Dialwave immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify Dialwave may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Dialwave will not be liable for any charges resulting from unauthorized use of Customer's Account.

10. Dispute Resolution

10.1 Good Faith Attempt to Resolve Disputes

In the event of any dispute or claim arising out of or relating to the Agreement (a "Dispute"), each Party must appoint a duly authorized representative which must confer with the other Party to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.

10.2 Arbitration

In the event a Dispute cannot be resolved after thirty (30) days, Parties agree to resolve the Dispute only by arbitration. Parties agree that:

THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY SERVICES CUSTOMER RECEIVES FROM DIALWAVE WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA").

IF PARTY INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE MUST BE PROVIDED IN WRITING TO DIALWAVE BY REGISTERED MAIL WITH RECEIPT ACKNOWLEDGEMENT ADDRESSED TO DIALWAVE, INC., LEGAL DEPT., 31 WEST 34TH STREET, 8TH FLOOR, NEW YORK, NY 10001.

ARBITRATION WILL TAKE PLACE IN NEW YORK, NEW YORK.

THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.

AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CANNOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.

IF, FOR ANY REASON, THE PROHIBITION ON CLASS ARBITRATIONS CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.

10.3 Venue

IF, FOR ANY REASON, A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, PARTIES AGREE THAT THERE WILL NOT BE A JURY TRIAL. PARTIES UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF, OR RELATING TO, THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. 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 NEW YORK, NEW YORK, 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.

11. Limitation of Liability

11.1 Damages

IN NO EVENT WILL THE CUMULATIVE LIABILITY OF DIALWAVE FOR ALL ACTIONS EXCEED THE AVERAGE MONTHLY SERVICE CHARGE PAID BY CUSTOMER, EXCLUDING EQUIPMENT CHARGE(S) AND/OR EQUIPMENT PURCHASE(S), DURING THE PRECEDING THREE (3) MONTHS OR ONE US DOLLAR ($1.00 USD) IF FOR A FREE TRIAL PERIOD. IN NO EVENT WILL DIALWAVE BE LIABLE FOR: (I) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, REPUTATIONAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND; (II) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (III) LOSS OR CORRUPTION OF DATA, LOSS OF PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, HARM TO THE IMAGE OR REPUTATION, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY EVEN IF DIALWAVE OR ITS AFFILIATES HAVE BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW. ANY CLAIM OR CAUSE OF ACTION RESULTING FROM CUSTOMER'S USE OF DIALWAVE'S SERVICES MUST BE PROVIDED IN WRITING TO DIALWAVE BY REGISTERED MAIL WITH RECEIPT ACKNOWLEDGEMENT ADDRESSED TO DIALWAVE, INC., LEGAL DEPT., 31 WEST 34TH STREET, 8TH FLOOR, NEW YORK, NY 10001 WITHIN SIX (6) MONTHS AFTER THE CLAIM OR CAUSE OF ACTION HAS ARISEN OR IT WILL BE DEEMED WAIVED BY CUSTOMER.

NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED, OR EXCLUDED PURSUANT TO APPLICABLE LAW.

11.2 Survival

The limitations of liability contained in this Agreement 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.

12. Indemnification

Customer agrees to indemnify, defend, and hold harmless Dialwave for, from, and against any and all losses, liabilities, damages, claims (including any and all attorneys' fees, costs, or expenses) as incurred, arising out of or in connection with: (i) any breach or alleged breach of this Agreement by Customer; (ii) Customer's violation of any Law and/or the rights of a third-party; and (iii) claims relating to the Customer Data. Further, Customer must indemnify and hold harmless Dialwave against all damages, costs, and legal fees awarded against Dialwave by a court of competent jurisdiction in connection with such claims, or agreed to in a written settlement agreement approved in writing by Dialwave.

13. Warranties

13.1 Dialwave Warranty

Dialwave 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, Dialwave will pass through to Customer any and all warranties Dialwave receives in connection with equipment provided to Customer.

13.2 Customer Warranty

Customer's and its End Users' use of the Services must at all times comply with all applicable Laws and this Agreement.

13.3 Disclaimer of Warranties

TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT THE SERVICES ARE BEING PROVIDED "AS IS" AND "AS AVAILABLE," AND EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, DIALWAVE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, 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. IN THE EVENT DIALWAVE MAY NOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

DIALWAVE FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SITE, ITS SERVICES, OR ANY PORTION OF ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, CONTINUOUS, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES DIALWAVE WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICES. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT DIALWAVE CANNOT GUARANTEE THAT IP-BASED COMMUNICATIONS ARE COMPLETELY SECURE, ERROR, OR VIRUS-FREE.

14. Miscellaneous

14.1 Governing Law

The Agreement is governed by the Laws of the State of New York, excluding its choice of Law rules.

14.2 Notices

Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email, confirmed facsimile, or five days after deposit with an reputable overnight courier service, and addressed as follows: Dialwave, Inc., Legal Dept., 31 West 34th Street, 8th Floor, New York, NY 10001 with a copy to legal@dialwave.com, and to Customer at either the physical address or e-mail address associated with the Customer's Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.

14.3 Force Majeure

Excluding either Party's payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party's reasonable control, including without limitation any act of God; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.

14.4 Relationship of the Parties

Dialwave and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Dialwave and Customer.

14.5 Severability and Waiver

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.

14.6 Headings, Interpretation

The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).

14.7 Survival

The following will survive any expiration or termination of this Agreement: definitions, payment obligations, dispute resolution, warranty disclaimers, indemnities, limitations of liability, and miscellaneous.

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