TERMS AND CONDITIONS
UPDATED: NOVEMBER 15, 2022
Before using the Services, please read these Gabbit, LLC Terms & Conditions (the “Terms”). These Terms are incorporated by reference into the Order Form executed by the company identified as the “Customer” in the Order Form (“Customer” or “You”). Pursuant to these Terms, you have the right to use the Services and Equipment. These Terms, the Order Form, and any other lease, activation, or commitment that you entered into in connection with obtaining the Services or the Equipment together form a binding and executed written agreement (the “Agreement”) between you and Gabbit, LLC, its affiliates, and subsidiaries (“Gabbit,” “Us” or “We”) effective as of the date of execution of the Order Form.
THIS AGREEMENT CONTAINS AN OPTIONAL BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. SEE SECTION 17 FOR MORE INFORMATION.
This Agreement contains your consent for Us to contact You via telephone or SMS message (including text messaging) using the phone numbers and email addresses you provide to us, including via automated dialing or texting systems.
Pursuant to FCC requirements, Gabbit is required to advise its customers of any limitations that E911 service may have in comparison to traditional 911 service, which are set forth in Section 8 below. If you are uncomfortable with the limitations of the Gabbit E911 service, you should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the Services. It is strongly recommended that you have an alternative means for placing emergency calls available at all times.
Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies set forth herein. Customer may not use or permit the use of the Services to interfere with the use of the Services by others, or with the operation of the Gabbit Network. Customer must ensure that its End Users comply with the Use Policies. A violation of any Use Policy will be deemed a material breach of this Agreement.
By entering into this Agreement, Customer: (a) accepts this Agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that Customer’s representative: (i) is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this Agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the Services or Equipment.
Capitalized terms used in this Agreement but otherwise not defined have the following meaning:
“Account” means the numbered account established with Gabbit and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services, Digital Lines, or End Users may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by Gabbit.
“Account Administrator” means the person(s) who have been granted authority by Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Administrative Portal. Account Administrators may have varying levels of Account rights, skills, or permissions.
“Account Data” means: any business contact information provided with the Account; Gabbit-generated logs of calling or other metadata developed or collected in the provision of the Services; configuration data; and records of Digital Lines and any Services purchased under this Agreement.
“Administrative Fees” means any administrative recovery fees, 911 cost recovery fees and the like charged by Gabbit to Customer and included .
“Administrative Portal” or “Admin Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.
“Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of greater than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.
“Application”, “App” or “Mobile Application” means the Gabbit Mobile Application that is made available to Customers or End Users.
“Basic Subscriber Information” means a report which shows basic subscriber information including, to the extent Gabbit’s customer completed the fields upon registration: (a) Customer’s name (and company name, if applicable); (b) contact telephone number; (c) physical or mailing address; (d) email address(es); and (e) date of account activation, deactivation date and billing cycle dates.
“Billing History Information” means a report which gives very basic information in the form of line item transactions related to customer payments.
“Billing Start Date” means the later of: (a) the Service Start Date; or (b) fourteen (14) days following acceptance of the Customer’s order.
“Call/Fax Log Records” means a document in substantially the same format as traditional call detail records, although there are slight differences because Gabbit’s systems are cloud-based. Gabbit delivers Call and Fax Log Records in the form of a comma-separated value (CSV) file.
“Collection Risk” means any Customer that is delinquent pursuant to Section 3 (b) (iii), below, for two (2) or more consecutive months or if Customer has been delinquent three (3) times in any six (6) month period.
“Comment Log” means a report that lists activities that are associated with an account and are logged by Gabbit employees. Each logged activity has a date/time stamp and a brief description of the activity performed. Note that there is substantial variation in the quality and content of comment logs.
“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.
“Content of Communications” means depending on the scope of the request, Gabbit may be able to provide the following various communications content: (a) faxes; (b) incoming voice messages; (c) content of SMS messages; and (d) call recordings.
“Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.
“Digital Line” means a phone number assigned to an End User or a specifically designated location (e.g., conference room) and the associated voice service for inbound and outbound calling that permits an End User generally to make and receive calls to and from the public switched telephone network as well as to and from other extensions within the same Account.
“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 and attorneys.
“Dispute” has the meaning set forth in Section 13(A) (Good Faith Attempt to Settle Disputes).
“Effective Date” means the date of execution of the initial Order.
“Electronic Signature” means an electronic sound, symbol, or process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
“End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
“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.
“Force Majeure Event” means any event or circumstance that are beyond that Party’s control, which are considered without limitation as force majeure: 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; Sub-processor failure; 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.
“Gabbit Customer Care” means Gabbit’s Customer support operations, available at 855-542-2248 or via email at firstname.lastname@example.org.
“Gabbit Network” means the network and supporting facilities between and among the Gabbit points of presence (“PoP(s)”), up to and including the interconnection point between the Gabbit’s network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The Gabbit Network does not include the public Internet, a Customer’s own private network, or the PSTN.
“Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 15.
“Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
“Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non-U.S. governmental body with jurisdiction over the Services.
“Order(s)” or “Order Form(s)” means a request or order for Services describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 2(a). The Order may be presented and executed on the Gabbit website or via the Administrative Portal.
“Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.
“Service(s)” means all services provided under this Agreement and set forth in one or more Order(s).
“Service Addendum” means documents appended to the Agreement or your Service Contract (if applicable) containing additional terms for Equipment and Services.
“Service Contract” means a Master Services Agreement, Service Addendum or any other similar agreement or understanding between You and Gabbit that may be executed and delivered under certain circumstances.
“SMS Log Records” means a report that includes substantially the same information as Call/Fax Log Reports. Gabbit delivers SMS Message Logs in the form of a CSV file.
“Service Start Date” means the date so identified in the relevant Order (whether an initial Order or subsequent Order) or Service Contract or such other date as the Services go live for a Customer.
“Taxes” means any and all federal, state, local, municipal, foreign and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.
“Term” has the meaning set forth in Section 2(a).
“Use Policy” or “Use Policies” refers to one, or all, of the policies identified in Section 6, below.
2. ORDERING AND TERM OF SERVICE
(a) Ordering Services
Customer may order Services by submitting an Order electronically in the format provided by Gabbit on the Gabbit website or, for subsequent orders, via the Administrative Portal. The Order will identify the Services requested by Customer together with: (i) the price for each Service; (ii) scheduled Service Start Date; (iii) and Equipment leased, licensed, or sold to Customer, if any. An Order will become binding when it is executed by the Customer and accepted by Gabbit. Gabbit may accept an Order by commencing performance of the requested Services. The Services will begin on the Service Start Date and will (subject to Section 2(d), below) continue for the term set forth in the Order or the Service Contract (as applicable) (the “Term“). Customer may purchase additional Services and equipment through Orders placed via the Administrative Portal.
(b) Service Descriptions
Any Service Addendum applicable to Customer’s Services are incorporated into and forms a part of this Agreement.
(i) Purchase of Equipment. To use the Service, You may need to purchase phones, headsets, or other equipment (collectively, “Equipment”). All Equipment shipments are F.O.B. Gabbit’s shipping distributor facility. Gabbit’s liability for delivery shall cease, and title to such Equipment (if applicable) and all risk of loss or damage shall pass to You upon delivery to the shipping carrier. All equipment obtained from Gabbit in connection with the Service is subject to the Equipment Return Policy, below. You understand and acknowledge that if You cancel the Services prior to the end of Your Term, cancellation or termination fees, or phone, hardware, and other equipment fees may apply in accordance with the terms and conditions of Your Order or Service Contract. You hereby authorize Gabbit to charge Your credit card, and You hereby agree to be liable for any and all such fees, costs, and charges.
(ii) Return of Equipment. You are responsible for all return shipping charges for any hardware returned to Gabbit for any reason, including situations in which hardware is covered under warranty. If You have purchased any hardware from us or we have otherwise provided You with any hardware and Your Account is terminated for any reason prior to the end of Your Term, You hereby authorize us to immediately bill your credit card the appropriate equipment return fees. If You cancel Your Service within ninety (90) days from the Service Start Date, You may: (i) keep the hardware and pay the list price less the actual price paid for the hardware, excluding taxes; or (ii) return Your hardware and receive a full refund. No returns are accepted after ninety (90) days from the Service Start Date. In addition, the following terms and charges apply to hardware returns:
- You agree to pay all shipping and handling charges related to any hardware returns.
- All hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the hardware. At our discretion, we may decline Your return or charge You an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.
- Before returning any hardware that has data in its memory, please transfer all files You wish to retain to another file source. Once the hardware is returned, Your files cannot be recovered and You release us of any liability for any lost, damaged, or destroyed files, data, or other information.
(d) Month-to Month Service
Unless Customer has entered into a Service Contract or if the Order states otherwise, the Term will begin on the Service Start Date and shall continue on a month-to-month basis until Customer shall give notice of non-renewal at least five (5) business day prior to the end of the current billing period or unless terminated by Gabbit as provided herein. The term of any recurring Services added to the Account after the initial Order is submitted will start on the Service Start Date of the subsequent Order, will run coterminously with the then-current monthly term of any pre-existing Services, and will be billed on the same billing cycles as the pre-existing Services. In no event shall Customer be entitled to any refund, adjustment or credit for any partial month upon any termination or modification of the Services hereunder.
3. INVOICING AND PAYMENT
(a) Prices and Charges
All prices are identified in US dollars on the website or Administrative Portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account. Upon termination of the Services as provided herein, Customer shall remain responsible for all accrued and unpaid charges as set forth in Section 3(b)(iii), below.
Recurring charges for the Services begin on the Billing Start Date, and will continue until the provision of Services hereunder has been terminated. Gabbit will provide notice of any proposed increase in such charges at least thirty (30) days prior to the effective date of such increase. Administrative Fees that Gabbit is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice.
(b) Billing and Payment
(i) Method of Payment. Unless otherwise agreed to by Gabbit, all Services and equipment must be purchased via valid credit or debit card supplied at the time of purchase. By providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis. In addition, Customer’s supplied credit card shall be used for any in-month purchases of additional services and products. Recurring charges are billed in advance on a monthly basis. One-time charges (if any) are billed monthly in arrears.
(ii) Credit Card Policy. Credit and debit card payments are subject to the approval of the card issuer, and Gabbit will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. Customer is responsible for any credit card chargeback or similar fees for refused or rejected payments that Gabbit is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, Gabbit will send Customer a notice using the contact information associated with Customer’s Account. Gabbit may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Gabbit under this Agreement, at law or in equity. Notwithstanding the foregoing, Gabbit reserves the right to disconnect Your Service and terminate Your Account if the credit card on file is declined or fails for any reason. Customer shall notify Gabbit of any changes to the credit card on file, such as credit card account number or expiration date changes.
(iii) Payment Terms.
(A) Time is of the essence for payment. Invoices shall be sent to the e-mail address specified in Customer’s Account and shall be deemed received on the date sent. Unless otherwise stated at the time of purchase or on the invoice, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the invoice (the “Invoice Due Date”). If full payment is not received within fifteen (15) days following the Invoice Due Date, Gabbit shall send a late payment notice to Customer (the “First Notice”) stating that payment is past due, and that service will be disconnected in ten (10) days (the “Disconnection Date”) unless payment is made in full. If payment in full is not received within five (5) days following receipt of the First Notice, Gabbit shall send a second notice to Customer (the “Second Notice”) stating that service shall be terminated unless payment in full is made prior to the Disconnection Date. If payment in full is not made on or before the Disconnection Date, Customer’s Service shall be immediately terminated in accordance with Section 10(d), below.
(B) Any payment not made when due shall be subject to a late fee equal to the greater of: (a) 2.5% (or the maximum rate permitted by law) of the outstanding unpaid balance per month from the date such payment is due until the date paid in full; or (b) $15.00 per month (the “Late Fee”). Gabbit’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Gabbit’s rights to collect any amount due. Gabbit has the right to terminate the Services and this Agreement if any fees or charges are not paid as set forth in (A), above or if Customer has otherwise been deemed by Gabbit to be a Collection Risk. If Gabbit terminates the Services, Customer shall remain liable to Gabbit for all charges due and unpaid hereunder. Gabbit may refer the delinquent account to a collection agency or attorney in order to pursue collection of the past due amount and/or any Equipment which Customer fails to return in accordance with the Agreement. Any account which has been disconnected for non-payment as provided above shall be subject to a reconnect fee of $50.00. Services will be restored only after all outstanding amounts (including any Late Fees and costs and expenses of collection, including attorneys’ fees) and the reconnect fee are paid in full. If Gabbit is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Equipment, Customer agrees to pay all reasonable costs and expenses of collection or other action (including but not limited to attorneys’ fees). The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Gabbit under this Agreement or at law or in equity. Billing cycle end dates may change from time to time.
(iv) Credit Inquiry; Deposit. Notwithstanding anything herein to the contrary, initial and ongoing delivery of Services may be subject to credit approval. Customer authorizes Gabbit to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Gabbit, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Subject to applicable regulations, Gabbit may require Customer to make a deposit as a condition to Gabbit’s provision of the Services, or as a condition to Gabbit’s continuation of the Services if Customer has been deemed to be a Collection Risk. The deposit will not, unless explicitly required by law, bear interest and shall be held by Gabbit as security for payment of Customer’s charges. Gabbit may apply the deposit to any delinquent Customer charges upon written notice to Customer.
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. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Gabbit so that the amount received by Gabbit after the withholding tax is deducted is the full amount Gabbit would have received if no withholding or deduction had been made.
(d) Billing Disputes
If a Customer reasonably and in good faith disputes any portion of Gabbit’s charges, it must provide written notice to Gabbit within thirty (30) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. 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. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
4. PROVISION OF THE SERVICE
(a) General Terms
Gabbit will provide the Services as described in the relevant Service Order. Gabbit may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent.
(b) Customer Care
Gabbit provides customer and technical support to Customer via telephone and e-mail. Gabbit will use reasonable efforts to troubleshoot and resolve issues reported by Customer but does not make any representations or guarantees that we will be able to fully resolve any such issues. Except as provided in this section, Gabbit has no obligation to provide additional customer support, technical support, or to provide solutions (e.g., bug fixes to software) to any issues that may arise in Your particular use of the Services. Calls to the Gabbit customer service center will incur a charge for issues requiring more than ten (10) minutes of a technician’s time. Calls to reprogram Your phone system to repair a function where You or one of Your employees, agents or representatives caused the issue will be immediately billable. All calls where it is determined that the issue originated from the Gabbit data center or centralized equipment will not incur a charge. From time to time, Gabbit may send You surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. You hereby grant Gabbit, its licensors, and suppliers a perpetual, unlimited, worldwide fully-paid up, royalty free license to use all feedback, answers, ideas, comments, or other information You provide to Gabbit as provided herein.
(c) Call Recoding
Certain of the Services provide a function that allows You to record individual telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, You are required to obtain consent from all parties to record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. Gabbit expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Gabbit and its employees, agents, and representatives from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. You agree that Gabbit may, in its sole discretion, record any call between Gabbit and You for quality control purposes.
5. NETWORK REQUIREMENTS
Use of the Services is dependent upon Customer’s maintenance of sufficient Internet access, networks and power as set forth below. Gabbit will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet Gabbit’s requirements.
The Services require 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, or LTE networks are not recommended for use with the Services. Customer will 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 all Digital Lines, extensions or Accounts 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; and (iv) disable attachment of facsimile image and voicemail audio files to message notification emails associated with Customer’s Account(s) and/or individual Digital Lines or extensions for which such functionality is not required and to the extent that such files may include sensitive or confidential content.
6. USE POLICY
Use of the Services is subject to and conditioned upon full compliance with the following policies and guidelines for acceptable, prohibited and unauthorized use. The Services (including any device, system, network, or account used in connection with the Services, or the Gabbit Network) may not be used in the following manner or for any of the following purposes:
- Illegal activity. Violate any applicable law, including U.S. Federal, state, or local laws or regulations, or any applicable law or regulation of any foreign jurisdiction, including applicable laws regarding the recording of communications.
- Infringing activity. Infringe, misappropriate, or otherwise violate Gabbit’s (or anyone’s) rights (including intellectual property, privacy, personality, publicity, or otherwise); or display or use Gabbit’s marks without consent or in violation of Gabbit’s policies.
- Auto-dialing; trunking; traffic pumping. Perform auto-dialing or “predictive dialing” in an abusive manner; trunk or forward your Gabbit phone or fax number to other numbers that handle multiple simultaneous calls or to a private branch exchange (PBX) or a key system; traffic pumping or access stimulation of calls through the Services or the Gabbit Network.
- Minors. Exploit or harm minors (e.g., expose them to inappropriate content; ask for personally identifiable information without parental consent).
- Interference; transmit viruses. Interfere, inhibit, compromise, or otherwise harm the Services or the Gabbit Network (regardless of intent or knowledge); transmit any material that contains viruses, time or logic bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
- Objectionable activity. Act in an indecent, offensive, obscene, threatening, harassing, defamatory, libelous, fraudulent, malicious, disruptive, tortious, or other objectionable manner or in any manner that is invasive of another’s privacy; or create a false caller ID identity (i.e., ID spoofing), forge addresses or headers, or otherwise mislead others about a sender’s identity or origin.
- Driving; safety. Use while driving or otherwise in an unsafe manner.
- Harvest information; spam; bulk messages. Harvest or collect information (including email addresses) about third parties or End Users without consent; send bulk communications or other content (including messages or advertisements) without the recipient’s consent.
- Excessive or unauthorized use. Use any device, system, network, account, plan, or the Services in an unauthorized manner or in excess of reasonable business use including without limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess of what would be expected of a single user.
- Circumvent compliance or security. Take advantage of, bypass, exploit, defeat, disable, or otherwise circumvent limitations of the Services, security mechanisms, or compliance with this Use Policy or any Law. Customer shall not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means.
- Interference. Use the Services in any way that interferes with other customers’ and third parties’ use of the Services or use the Services in any manner which disrupts, prevents or restricts any other customer from using the Services.
- Interception. Intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data for any purpose.
High Risk Use Prohibited. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. CUSTOMER SHALL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT. GABBIT SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES OR SERVICES.
The list above is not exhaustive or exclusive.
Notwithstanding anything to the contrary in this Agreement, Gabbit may act immediately and without notice to suspend or limit the Services if Gabbit reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Use Policy, or use of the Services that could interfere with the functioning of the Gabbit Network, provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. Gabbit will promptly remove the suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact Gabbit Support in advance to avoid any Service disruption.
7. FRAUDULENT ACTIVITY OR ERRONEOUS CHARGES
If You suspect fraudulent activity or erroneous charges on Your Gabbit Account, please contact customer support at 855-542-2248 or via email at email@example.com. When You contact customer support, please have the following information available: (a) Your name, contact information, Account telephone number in question, and security verification information; (b) the date that the Account in question was created; (c) the credit card account number used to open the Account; and (d) the total amount fraudulently or erroneously charged to the Account. If You do not contact Gabbit within thirty (30) days after the suspected fraudulent activity or erroneous charges appear on Your Account, You waive Your rights to object to or challenge such activity or charges. Furthermore, if You request that Your bank or credit card company perform a chargeback without first contacting Gabbit and Gabbit subsequently determines that the charges at issue are not erroneous, Gabbit reserves the right to terminate Your Account immediately and take any available legal action. Notwithstanding the above, You are solely liable for any transactions or activities by You or anyone else that occur on Your Account, and in no event shall Gabbit be liable or financially responsible in any way for any unauthorized use of Your Account.
8. EMERGENCY SERVICES
Gabbit provides access to emergency calling services, allowing most Gabbit users to access either basic 911 or Enhanced 911 (E911) service. Gabbit users with a Digital Line can dial 911 directly from their IP Desk Phones. VIRTUAL EXTENSIONS, MOBILE USERS WITHOUT A DIGITAL LINE OR SOFTPHONE USERS ON PC’S CANNOT COMPLETE 911 CALLS.
Emergency calling using Gabbit 911 services work differently than you may have experienced using traditional wireline or wireless telephones. Your access may differ depending on your location or the device you are using.
(a) Registering Your Location
Customer must register with Gabbit the address of the physical location where Customer will use each Digital Line immediately upon activation of your End Point. This is your Registered Address. You or your Account Administrator must accurately register each individual line through the Administrative Portal. You must use Gabbit voice services only at the Registered Address provided for the applicable Digital Line. If you move a registered device, you must immediately update the Registered Address with the new physical location of the device with Gabbit through the Administrative Portal or in your account settings. If you do not update the Registered Address, any 911 calls made from the device may be sent to the wrong emergency response center and will not transmit your current location information to emergency responders, delaying emergency assistance to you. It may take up to several hours for the address update to take effect. Customers with more than one Digital Line are solely responsible for ensuring that an accurate and up-to-date Registered Address is maintained for each Digital Line, and that their End Users are aware of how the Registered Address can be changed.
(b) Service Limitations
Gabbit 911 service will not function: (i) in the event of an Internet or power outage; (ii) if your broadband, ISP, or Gabbit Service is terminated; and (iii) with respect to only the Gabbit Mobile Application, if you do not have mobile service, as the Gabbit Mobile Application cannot send emergency calls over Wi-Fi access. It is possible that network congestion may delay or prevent completion of any 911 call. You will not be able to complete a 911 call if you move to a physical location outside the country in which your Digital Line is provided, or if you are dialing from a Gabbit number that is not a Canadian or United States number.
Users uncomfortable with any of these limitations should use an alternate means of reaching 911.
(c) How it Works
When you dial 911 using voice services from Gabbit, the Gabbit phone number and the Registered Address you have provided is sent to the local emergency center serving your location. In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to see your Gabbit telephone number or your Registered Address. You should always be prepared to provide the emergency operator with your Gabbit telephone number and Registered Address in case the call is dropped or disconnected. If you are unable to speak, the emergency operator may not be able to send help to your location and/or call you back should the call be disconnected. Gabbit does not control whether or not the emergency operator receives your telephone number and Registered Address.
In some cases, 911 calls dialed from your Gabbit device cannot be directed to the local emergency response center and are instead directed to a National Emergency Call Center (the “NECC”). That might happen if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network. 911 calls that are directed to the NECC may not include your Gabbit telephone number or your Registered Address. Trained operators at the NECC will request your name, location, and telephone number and attempt to reach emergency responders in your local area. Until you give the operator your phone number, and location, he/she may not be able to call you back or dispatch help to your location if the call is dropped or disconnected.
(d) Mobile Applications
Calls to 911 placed through the Gabbit Mobile Application on a smartphone are automatically routed to the native dialer on the smartphone, and the call will be handled by your wireless service provider if wireless service is available. If your wireless service is unavailable, the 911 call cannot be placed. The Gabbit Mobile Application cannot place emergency calls over Wi-Fi access. Emergency dialing is not available through the Gabbit Mobile Application on tablets or other mobile devices without a native phone dialer and a wireless service plan.
In some areas, emergency operators are able to receive text messages sent to 911. Texts to 911 by Gabbit users relying on the Gabbit Mobile Application are automatically directed to the native dialer on the mobile phone, allowing you to send the text through your wireless service provider, if available. If wireless service is unavailable, the text cannot be sent. Text-to-911 is not available on tablets or other mobile devices without a native phone dialer and a wireless service subscription.
(e) Notification of Employees, Guests, or Other Users
Customers must notify any employees, contractors, guests, 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 Gabbit 911 Service or that it may be in some way limited in comparison to traditional 911 service. Customer must affix a Gabbit-provided sticker warning that 911 services may be limited or unavailable in a readily visible place on each piece of equipment that might be used to access or use the Services, as required by 47 C.F.R. § 9.5.
(f) Disclaimer of Liability for Emergency Call Response; Indemnification
Your use, and use by your employees, guests and other third parties, of Gabbit’s 911 Services are subject to the limitations described herein. The availability of certain features, such as transmission of a Registered Address or your Gabbit telephone number, depends on whether local emergency response centers support those features, and other factors outside of Gabbit’s control. Gabbit relies on qualified third parties to assist us in routing 911 calls and text messages to local emergency response centers and to the NECC. Gabbit does not have control over local emergency response centers, the NECC, emergency responders, or other third parties. Gabbit disclaims all responsibility for the conduct of local emergency response centers, the NECC, third parties engaged by Customer to facilitate address updates, and all other third parties involved in the provision of emergency response services. To the extent permitted by applicable Law, you hereby release, discharge, and hold harmless Gabbit 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 does hereby indemnify Gabbit against and hold Gabbit (and any third-party provider(s)) harmless from any and all third-party claims, losses, damages, fines, or penalties arising out of: (i) Customer or its End User’s provision to Gabbit of incorrect information, including physical addresses, or failure to update a Registered Address; (ii) Customer’s failure to properly notify any person who may place calls using the Services of the 911 limitations; (iii) the absence, failure, or outage of emergency service dialing using the Services for any reason; and (iv) the inability of any End User to be able to dial 911 or access emergency service personnel for any reason.
(g) Other Calling Policies
(i) Operator Assisted Calling, 311, 711 and other X11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). The Service may not support 311, 411, and/or other X11 calling (other than 911) in one or more service areas.
9. NUMBERING AND PORTING POLICY
Customer may obtain new numbers from Gabbit for use with the Services, or may port existing numbers, subject to the terms and conditions below.
(a) Number Availability
Gabbit makes available phone numbers for use with voice and facsimile services, which Customer may select for assignment to the Customer’s Account. Gabbit’s listing of a number as available may be erroneous and does not constitute a representation or guarantee that such number is actually available for such assignment. In the event a chosen number is not actually available, Gabbit may remove such number from an Account.
(b) Number Porting
(i) Number Port-In Procedures. Customer must keep its existing service active in order to port a phone number to Gabbit. In order to request the porting of a telephone or facsimile number into an Account, the Account Administrator for the Account into which you wish the telephone or facsimile number to be ported must send the request to Gabbit at firstname.lastname@example.org or call customer service at 855-542-2248 and complete all steps and provide all information requested or required by Gabbit as part of the number port-in process (which may in some cases include providing an executed Letter of Authorization). Porting requests are processed between the hours of 9am – 5pm CST, Monday-Friday. After-hours porting requests will be processed the following business day, in accordance with standard industry practice.
(ii) Port-In Authorization. Upon acceptance hereof, you hereby appoint Gabbit as your authorized agent for ordering changes from your local carrier. Gabbit may deal directly with your carrier, or with any vendor, in all matters pertaining to your Account or the Services. You understand that only one local company may be designated for the telephone numbers that you provide to Gabbit. By your acceptance hereof, you represent that the Account Administrator has the authority to order changes in local service(s) on Your behalf. Gabbit reserves the right to perform a customer credit profile and may deny service baed on the results thereof.
(iii) Number Port Out Procedures. In order to request the porting out to another service provider of a telephone or facsimile number currently assigned to an Account, you must follow the instructions specified by that service provider and must provide all information and cooperation requested by the relevant other services providers, Gabbit, or any other relevant third party. The porting of phone numbers into or out of an Account requires that the Customer provide specific and detailed information to Gabbit and/or other service providers, and procedures imposed by other service providers or Gabbit in order to comply with law and industry standards. Therefore, the completion of any number port request may depend on factors outside of Gabbit’s control, including delays caused by Customer and/or other service providers. You further understand that porting Your number out of Your Account does not automatically terminate Your Gabbit Account.
(iv) Unauthorized Port Outs. Gabbit is required by law to comply with any valid porting request. Phone numbers may be ported out from an Account due to acts or omissions of third parties, and it may be difficult or impossible for Gabbit to: (A) prevent such port-outs: (B) retrieve numbers ported out of an Account; or (C) port such numbers back into an Account. Gabbit has no responsibility or liability due to such port-outs.
(v) Accurate Porting Information. Customer represents and warrants that all information provided in connection with any request to port in or port out numbers to or from the Gabbit Services (including without limitation any information or representations in any Letter of Agency) by Customer or any party acting on its behalf or direction will be true, accurate, and up-to-date.
(vi) Customer Compliance with Porting Laws. The porting of numbers is subject to telecommunications and other Laws and may be subject to third-party terms and conditions. Customer, and/or any party acting on Customer’s behalf, shall not: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct in its porting-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephony service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.
(vii) Release of Numbers. In the event of Account termination or cancellation, all telephone numbers associated with the Account which have not previously been ported to another provider may be released. The cancellation of individual Digital Lines may result in the release of the associated numbers if those numbers have not previously been ported to another provider. Customer is solely responsible for working with its new third-party provider to port out any numbers prior to termination or cancellation of Customer’s Account or Services, or any individual line.
(c) Number Publication by Customer
All new number assignments are provisional until verified by Gabbit and confirmed by Customer. Gabbit cannot guarantee that requested telephone numbers will be available, that Your existing provider will port Your number, or that circumstances beyond Gabbit’s control will not prevent or delay a successful port of Your number for the Services. Customer should not order any printed material, such as business cards or stationery, showing a telephone number, or issue any press releases or otherwise publicize any telephone number until Customer has confirmed that such number(s) is(are) active and functioning as desired. Acceptable methods of confirmation include test calling such number(s) from a non-Gabbit service plan and verifying that the fees and charges that will be incurred in connection with use of such number(s) are acceptable to Customer. Gabbit shall not be liable for reimbursement for press releases, business cards, and/or stationery under any conditions.
(d) Change of Numbers.
Gabbit may from time to time need to change the telephone or facsimile number assigned to You (due to an area code split or for any other reason beyond Gabbit’s control). Gabbit shall not be liable for any damages (including consequential, special damages or other damages) to You in the event that it needs to assign You a new telephone or facsimile number.
(a) Monthly Plan Customers. Monthly plan Customers may cancel or terminate the Services with or without cause at any time by calling customer service at 855-542-2248, subject to the restrictions and fees provided in this Agreement and any additional agreements governing the Services.
(b) Other Customers. If Customer is party to a Service Contract with Gabbit, any terms and conditions set forth in such agreement regarding termination of Services by the Customer shall govern.
(c) Termination by Gabbit. Gabbit may without additional notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Services if:
(i) You materially breach this Agreement;
(ii) You create or cause to be created multiple free accounts;
(iii) You use a fraudulent credit card to pay for Service charges on Your Account;
(iv) You verbally or in writing insult, abuse, or harass any Gabbit employee, contractor, agent, or other representative;
(v) You fail to respond to Gabbit’s calls or email attempts to contact You about Your Account;
(vi) You do not (or will not) reasonably comply or cooperate with any applicable Law;
(vii) Gabbit is ordered by law enforcement or other government agencies to suspend or terminate Service to Your Account;
(viii) You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against Gabbit or participate in any class action lawsuit against Gabbit;
(ix) You make any disparaging statement (whether written, oral, electronic, or otherwise) against Gabbit, its Services, or its employees, contractors, agents, investors, affiliates, or other representatives;
(x) To the extent permitted by law, upon the commencement by or against You of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors; or
(xi) Gabbit determines that such action is necessary to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; or to protect Gabbit, its customers, or other third parties affiliated with Gabbit.
(d) Effect of Termination
(i) If this Agreement or any Services are terminated for any reason other than as set forth in Section (c) (vii) the Customer shall, to the extent permitted by applicable Law and without limiting any other right or remedy of Gabbit, immediately pay all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees (including, but not limited to, the Late Fee and any early termination fees). Customer shall not be entitled to any refund of any pre-paid amounts, calling credits, or other amounts paid to Gabbit prior to the termination or suspension date.
(ii) Upon any termination or suspension of Your Account, Gabbit may immediately deactivate or delete Your Account and all related information and files in Your Account and/or restrict any further access to such files, information, or the Services.
(iii) Gabbit shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Services.
11. END USER LICENSE AND RESTRICTIONS; INTELLECTUAL PROPERTY
(a) Grant of Limited License. Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Gabbit grants to Customer and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable and non-resalable license to use any software provided or made available by Gabbit to the Customer as part of the Services (the “Software”) to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to the Customer being current on its payment obligations. All rights not expressly granted under this Agreement are retained by Gabbit.
(b) License Restrictions. Customer will not, and will not allow its End Users, to:
(i) Sublicense, resell, distribute or assign its right under the license granted under this Agreement to any other person or entity;
(ii) modify, adapt or create derivative works of the Software or any associated documentation;
(iii) reverse engineer, decompile, decrypt, disassemble, hack or otherwise attempt to derive the source code for the Software or any parts thereof;
(iv) use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use;
(v) create any competing Software or Services; or
(vi) remove any copyright or other proprietary or confidential notices on any Software or Services.
(c) Intellectual Property Rights.
(i) Gabbit IP Rights. Except as expressly provided in this Agreement, the limited license granted to Customer under Section 11 (a), above does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Gabbit and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of Gabbit Services may violate third-party IP Rights. Customer will not take any action to jeopardize, limit, or interfere with the IP Rights. Any unauthorized use of the IP Rights is a violation of this Agreement, as well as a violation of applicable intellectual property laws. All title and rights in and to any third party content that may be accessed through the Applications or Services is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
(ii) No Grant of Rights; No Resale. Customer shall not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Applications or Services or any part thereof without Gabbit’s prior written consent. If You are interested in reselling products or services offered by Gabbit, You are encouraged to join the Gabbit affiliate network.
(iii) Customer Rights. As between Gabbit and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Gabbit a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.
(iv) Copyright Infringement. Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent, or received using the App or Services for purposes of determining copyright infringement. However, Gabbit reserves the right to terminate access to the Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Services if Gabbit determines that a user is a repeat infringer.
(d) Use of Marks. Neither Party may use or display the other Party’s trademarks, service mark or logos in any manner without such Party’s prior written consent.
(e) Resale. Customer may not sell, resell, transfer, convey, white label, wholesale or in any way distribute the Services to or for the benefit of any third party without express prior written consent of Gabbit (which consent may be withheld in Gabbit’s sole discretion).
(f) Modification of Software by Gabbit. Gabbit may from time to time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent Gabbit from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by Gabbit. Gabbit will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes. Gabbit also, in its sole discretion, reserves the right to add, remove, or modify existing features or functions to the Services and App. However, Gabbit has no obligation to make available to You any subsequent versions of the Services and App. You may have to enter into a renewed version of this Agreement if you want to download, install, or use a new version of the Software.
The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.
Each Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to it 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. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.
These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of this Agreement by the Receiving Party; which at the time of disclosure was already known to the Receiving Party, without restriction as evidenced by documentation in such Party’s possession; or which the Disclosing Party confirms in writing is free of such restrictions.
Upon termination of this Agreement, the Receiving Party will promptly delete, destroy or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain Confidential Information, and upon request will provide the Disclosing Party with certification of compliance with this subsection.
13. DATA PROTECTION
(b) Data Security. Gabbit will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification. Customer must protect all End Points 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 Gabbit 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 Gabbit may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Gabbit will not be liable for any charges resulting from unauthorized use of Customer’s Account.
14. LIMITATION OF LIABILITY
(a) Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL GABBIT OR ITS AFFILIATES BE LIABLE FOR: (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (II) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (III) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (IV) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
(b) Direct Damages
GABBIT’S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED AND CAPPED IN THEIR ENTIRETY TO THE MONTHLY FEES GABBIT CHARGED YOU DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE THAT THE EVENTS GIVING RISE TO THE ACTION OR CLAIM FIRST OCCURRED. THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES EXCEPT THE LIMITATIONS UNDER THIS SECTION 14 (B) WILL NOT APPLY TO: (I) CUSTOMER PAYMENT OBLIGATIONS; (II) LIABILITY FOR INFRINGEMENT OF GABBIT’S IP RIGHTS; (III) LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR (IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
The limitations of liability contained in this Section 14 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.
(a) Indemnification Obligations. Customer agrees to indemnify and defend Gabbit and its Affiliates at Customer’s expense, from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from, related to or in connection with: (i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; (ii) use of the Services in a manner not authorized by this Agreement; (iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Gabbit; (iv) claims relating to Customer Content; or (v) any reckless or negligent acts or omissions or other willful misconduct by Customer or any third party acting with Customer’s permission, knowledge, authority or direction. Further, Customer will indemnify and hold harmless Gabbit against all damages, costs, and legal fees finally awarded against Gabbit by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Customer.
(b) Defense and Indemnification Procedures. Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (i) prompt written notice of the third-party claim; (ii) sole control over the defense and settlement of the third-party claim; and (iii) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
(a) Gabbit General Warranty. Gabbit 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, Gabbit shall pass through to Customer any and all warranties Gabbit receives in connection with equipment provided to Customer.
(b) Disclaimer of Certain Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND GABBIT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT GABBIT CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
GABBIT MAKES NO WARRANTY ON UP-TIME, RESPONSE TIMES, LATENCY, MEAN-TIME BETWEEN FAILURES, QUALITY OF SERVICE, AND/OR QUALITY OF VOICE OR FAX COMMUNICATIONS. GABBIT EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES ARE APPROPRIATE FOR HIGH-RISK OR OTHER ACTIVITIES WHERE FAILURE OF THE SERVICE COULD RESULT IN SERIOUS HARM TO PERSONS OR PROPERTY.
GABBIT MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. GABBIT IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL. GABBIT IS NOT RESPONSIBLE FOR THE CONTENT OR FUNCTIONALITY OF ANY THIRD-PARTY NETWORK USED IN CONNECTION WITH THE SERVICES.
17. DISPUTE RESOLUTION
(a) Good Faith Attempt to Settle Disputes. In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings any further action hereunder, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
(b) Mediation. If the Parties are unable to resolve the Dispute in accordance with Section 17 (a) within thirty (30) days, the Parties shall submit the Dispute to third-party non-binding mediation with a mediator (or mediation service) mutually agreed to by the Parties. The Parties covenant that they will participate in the mediation, and that they will share equally in its costs (other than each Party’s individual attorneys’ fees and costs related to the Party’s participation in the mediation, which fees and costs will be borne by such Party). All offers, promises, conduct and statements, whether oral or written, made in connection with or during the mediation by either of the Parties, their agents, representatives, employees, experts and attorneys, and by the mediator or any of the ediator’s agents, representatives and employees, will not be subject to discovery and will be confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding between or involving the Parties, or either of them; provided, however, that evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
(c) Arbitration. If the Parties are unable to resolve the dispute through mediation, the Parties agree that for any Dispute involving Ten Thousand Dollars ($10,000) or more, Gabbit may choose to resolve such Dispute through binding arbitration. Such arbitration shall be conducted through an established alternative dispute resolution provider selected by Gabbit, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
(d) Venue. To the extent court action becomes necessary to enforce an arbitration award or for any other reason consistent with Section 17, any such such action, lawsuit, or proceeding must be brought in and adjudicated exclusively by state or Federal courts located in the city and county of St. Louis, Missouri, 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.
(e) Equitable Relief. Nothing in this Section 17 shall be deemed as preventing a Party from seeking injunctive or other equitable relief from the courts as necessary to protect any of its IP Rights. Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in additional to any other relief to which such Party may be entitled under applicable Law.
(a) Relationship of the Parties. Gabbit and Customer are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between Gabbit and Customer.
(b) Assignment. Gabbit may assign this Agreement and any of its rights and obligations hereunder at any time. Customer may not transfer or assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Gabbit. Any purported transfer or assignment in violation of this section is null and void ab initio. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
(c) Notices. Except where otherwise expressly stated in the Agreement, all notices or other communications are deemed to have been fully given when: (i) made in writing and delivered in person; (ii) upon delivery via email; or (iii) two (2) business days after deposit with a reputable overnight courier service, and addressed as follows:
If to Gabbit:
9415 Dielman Rock Island Industrial Dr.
St. Louis, MO 63132
Attn: Legal Department
with a copy to email@example.com, and to Customer at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.
The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section 18 (c) or by Customer in the Administrative Portal.
(d) Force Majeure. Excluding a 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 a Force Majeure Event. The suspension of obligations under this Section 18 (d) may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
(e) Third-Party Beneficiaries. Gabbit and Customer agree that there will be no third-party beneficiaries to this Agreement.
(f) Internal Customer Activities. Gabbit does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third party with respect to ownership or control of the Account or Account Data. All information within Gabbit’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, Gabbit may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.
Gabbit may access your Account and related data as required to provide the Services. However, Gabbit has no obligation to access your Account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting or other professional services.
(g) 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).
(h) Governing Law. The Agreement is governed by the Laws of the State of Missouri, excluding its choice of Law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Customer’s use of the products or Services.
(i) Anti-Bribery. Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.
(j) Export Control. Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
(k) Regulatory and Legal Changes. In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with Gabbit’s ability to provide Services under this Agreement, Gabbit may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
(l) Entire Agreement. The Agreement, together with any exhibits, Orders, and Service Addenda, each of which is expressly incorporated by reference into this Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
(m) Order of Precedence. In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) a Service Contract (if one has been entered into); (ii) the applicable Order Form; (iii) any Service Addendum; (iv) the main body of this Agreement; (v) Privacy Notice; and (vi) any other document expressly referred to in this Agreement which governs the Services.
(n) Future Changes to this Agreement. We may change the terms of this Agreement from time to time upon delivery of electronic or written notices to You. Gabbit generally provides written notice of changes to Your account, including this Agreement and any other legal agreements, via email, electronic notice on the Website or Your Account page, or on Your billing statements. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement regarding any such notices of changes to Your Account. The modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement. Changes to these Terms shall be effective upon posting, and You understand and agree that if You use the Services after the date on which the Terms have changed, Gabbit will treat Your use of the Services as acceptance of the updated Terms, with prospective effect. You agree that you are solely responsible for: (i) making sure that Your registered email account is current and functional; (ii) checking Your registered email account on a routine basis; (iii) checking the Website and Your Account page on a routine basis; and (iv) making sure that communications from Gabbit are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason.
(o) Severability and Waiver. In the event 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.
(p) Publicity. Notwithstanding anything to the contrary in this Agreement, Gabbit may identify Customer as a customer of Gabbit (including placement of any Customer logo or trademark on the Gabbit website and promotional materials) and may refer to this Agreement in connection with its business deals, press releases, and marketing and/or promotional materials.
(q) Non-disparagement. You agree not to directly or indirectly through a third party engage in any conduct or make any communication (public or private) that disparages Gabbit, the Services or the App in any way. Such communications include, but are not limited to, publishing, posting, printing, disseminating, or otherwise making such disparaging statements on or through the Internet, in any blog, or through any other form of social media. You further agree not to solicit or encourage, directly or indirectly, any such statements, comments, or communications by any third-party. In accordance with the termination provisions below, Gabbit may terminate Your access to the Services if You breach the provisions of this section.
(r) Execution. Each Party represents and warrants that: (i) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (ii) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (iii) the Agreement will be a binding obligation of that Party.
(s) Electronic Signature and Counterparts. This Agreement may be executed electronically and in separate counterparts, each of which when taken together shall constitute one and the same instrument. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
(t) Survival. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order will survive expiration or termination of this Agreement. For avoidance of doubt, the provisions of this Agreement relating to intellectual property ownership, customer representations, confidentiality, use policies and restrictions, equipment, number porting and availability, storage of user information, customer feedback, publicity rights, non-disparagement, additional software licenses, indemnification, force majeure, warranty disclaimers, limitations of liability, notices, assignment, future changes, interpretation, dispute resolution and arbitration, and choice of law shall survive termination or expiration of this Agreement for the maximum term allowable by law.
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