440 N Barranca Ave #2250, Covina, California 91278, USA
Nemerald LCC - Terms-and-conditions
This Agreement governs your use of NEMERALD services (“Service(s)”), such as NEMERALD Office, NEMERALD Fax and the NEMERALD Website, and NEMERALD software applications (“Applications”), such as the NEMERALD Mobile Softphone etc. This Agreement is between NEMERALD LLC And its affiliates (“NEMERALD”) and the legal entity you represent by signing up for any Service, using the Service, or downloading, installing, or using any Application (“You”). If You are an individual entering this Agreement on behalf Your company, You represent and warrant that You have the authority and are competent to do so.
By using any NEMERALD services, you agree to abide by and comply with this agreement, and you affirm that you either are over the age of majority in your jurisdiction of residence, are an emancipated minor, or possess legal parental or guardian consent, and that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this agreement.
1. TERMS AND CONDITIONS. These terms and conditions (“Terms and Conditions”) are an integral part of the agreement (“Agreement”) between NEMERALD LLC (“NEMERALD”) and the customer (“Customer”) of the NEMERALD services. Any NEMERALD services or products (collectively, the “Services”) provided by NEMERALD to Customer shall be governed by the terms and conditions herein. By ordering, purchasing or using the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and NEMERALD by, among other things, (1) requiring MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY TERMINATION CHARGE and DISCONNECTION FEE; and (3) LIMITING NEMERALD’s LIABILITY UNDER THE AGREEMENT.
NEMERALD grants You a limited, personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license and right to use the NEMERALD Services and Applications in strict accordance with this Agreement. All rights not expressly granted under this Agreement are retained by NEMERALD.
2. No Grant of Intellectual Property Rights. You acknowledge and agree that any and all patents, copyrights, trademarks, service marks, trade secrets, and all other intellectual property rights (collectively, “IP Rights”) in the Applications and Services are and shall remain the sole and exclusive property of NEMERALD and its licensors. Nothing in this Agreement intends to or shall grant, transfer, or assign any IP Rights to, or vest any IP Rights in, You. You are only entitled to the limited use of the rights expressly granted to You in this Agreement. You will not take any action to jeopardize, limit, or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement, as well as a violation of applicable intellectual property laws. You acknowledge and understand that 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.
3. No Grant of Rights to Third Parties and No Resale. You agree not to 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 NEMERALD’s prior written consent. If You are interested in reselling products or services offered by NEMERALD, You are encouraged to join NEMERALD’s affiliate network by contacting NEMERALD at (310) 929-2680.
You agree not to undertake, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Applications, Services, Equipment, or any parts thereof. You agree not to intercept, capture, emulate, decrypt, or redirect the communications protocols used by NEMERALD for any purpose, including without limitation causing the Applications to connect to any computer server or other device not authorized by NEMERALD or in a manner not authorized by NEMERALD.
4. Service Registration Procedures. Upon signing up for the Service and at subsequent times as requested by NEMERALD, You agree to provide to NEMERALD Your true, accurate, current, and complete personal name and/or business name, administrator name, billing address, shipping address, the addresses where the Services will primarily be used, 911 registered address for each applicable device, email address, contact phone number, credit card information, and other data which may be necessary to administer Your NEMERALD account (“Account”) (collectively, “Registration Data”). You represent and warrant that the information You provide is accurate, current, and complete, and agree to promptly update any of the information if it changes. If You provide Registration Data that is, or that NEMERALD suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, NEMERALD has the right, in its sole discretion, to suspend or terminate the Service and refuse any and all current or future use of all Services by You, Your business(es), affiliates and all users of Your Account. At all times, You shall maintain and promptly update Registration Data.
Upon completion of all Registration Data and acceptance of this Agreement, NEMERALD may provide You with, as applicable, a password(s), user ID(s), PIN(s), telephone number(s), and other account information. You will be required to provide a security question and answer that will be used to verify ownership or affiliation with the Account. You are solely responsible for maintaining the confidentiality of all passwords, pins, and security questions and answers associated with the Account, and, at all times, You will be solely responsible for all transactions and activities that occur as a result of the disclosure (whether authorized or unauthorized) of any password(s), PIN(s), and/or security questions(s) and answer(s) associated with the Account, even if such transactions and/or activities were not authorized by You. You are solely liable for any transactions or activities by You or anyone else that occur on Your Account. You shall immediately notify NEMERALD of any unauthorized use of Your Account or if any other breach of security has occurred. In no event shall NEMERALD be liable for any unauthorized use of Your Account.
5. Customer Representations. You represent and warrant that You possess the legal right, capacity, and ability to enter into this Agreement. You represent and warrant that You have made and will maintain at all times wireless or traditional wireline telephone service that will enable You to call 911 and any other applicable emergency service number. You represent and warrant that You will not use the Applications or Services in environments requiring fail-safe performance or in which the failure of the Applications or Services could lead directly to death, personal injury, or severe physical or environment damage. You represent and warrant that the Registration Data, user name, contact information, Registered Location(s), and all other information provided in connection with Your NEMERALD Account are true and correct at all times. You represent and warrant that You will not use the Applications or Services in violation of the Terms And Conditions herein.
You agree to be financially responsible for Your use of the Applications or Services, including the authorized or unauthorized use of Your Account. In order to use the Applications or Services, You must have properly configured and working Internet service and/or Public Switched Telephone Network (“PSTN”) service (i.e., mobile and/or landline phone service) and hereby agree, at Your sole expense: to (1) obtain access to Your own Internet and/or PSTN service with a third party provider other than NEMERALD; (2) be responsible for payment of Internet and/or PSTN connection or service fees and all equipment necessary to establish a connection to such Internet and/or PSTN service, as may be required to use the Applications or Services; (3) supply and pay third-party providers for all additional phone service and features required for Your use of the Applications or Services; and (4) pay NEMERALD for the Applications or Services
6. Product Pricing and Availability. With respect to its advertising, offering, or sale of Applications, Services, or any other products (collectively, “Products”), NEMERALD attempts to describe its products as accurately as possible. Nevertheless, NEMERALD does not warrant that any descriptions, pricing, availability, or other information relating to the advertising, offering, or sale of Products (collectively, “Product Information”) from its Website, marketing materials, promotional flyers, advertisements, or other printed or electronic materials (collectively, “Product Materials”) is accurate, complete, reliable, current, or error-free. Despite our efforts, it is possible that Product Information may be mispriced, described inaccurately, or that the Product may be unavailable. In the event NEMERALD determines that a Product is mispriced, described inaccurately, or unavailable, NEMERALD reserves the right to take any action it deems reasonable and necessary to rectify the error, including without limitation, canceling Your Account or subscription to the Services. You agree to notify NEMERALD immediately if You become aware of any pricing or descriptive errors or inconsistencies with any Products You order through the Product Materials and comply with any corrective action taken by NEMERALD.
You acknowledge and agree that the Services may not be available 100% of the time. Credit allowances for interruption of the Services may only be provided on a case-by-case basis at the sole discretion of NEMERALD and shall be Your sole remedy for any Service interruptions or other issues with the Services.
7.Products And Services. During the Initial Term or Renewal Term of this Agreement, NEMERALD will provide the Services, set forth in the Service Order, including telephone and other equipment (collectively, “Equipment”) subject to the terms and conditions herein. NEMERALD hereby grants Customer access to the Services for use by the number of Agents and Logins set forth in the Service Order, for Customer’s own internal business purposes, which shall be deemed to include activities Customer may perform on behalf of its own customers. Subject to the terms and conditions herein, NEMERALD grants Customer the right to use the Documentation in connection with its use of the Services.
Your license to the Applications and Services is provided for a term specified in Your Services contract (the “Term”). The initial Term begins on the date that you sign up for the Services (the “Date of Purchase”).
The Term for all Service plans will renew automatically for successive Terms of the same length without further action by or notice to You unless You notify NEMERALD customer service of non-renewal at least thirty (30) days before the end of the then current Term, unless otherwise provided in Your Services contract.
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.
8.1 Month-to-month renewal. Customer shall have the option, upon expiration of the Initial Term or any Renewal Term, to renew the Agreement on a month-to-month basis at the list price offered for the Services. Customer will be converted to a month-to-month basis if Customer provides to NEMERALD, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to convert to month-to-month service.
8.2 Additional services. At Customer’s option, the number of Services may be increased at any time during the Initial Term or Renewal Term (any such increase, “Additional Services”) by Customer entering into an addendum to its Service Order that sets forth the specific Additional Services desired. Each addendum to a Service Order shall be subject to NEMERALD’s acceptance, which shall be deemed given if NEMERALD thereafter provides the Additional Services. Upon acceptance by NEMERALD, such Service Order addendum shall be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees shall be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order. Additional Services shall be provided for a term that is coterminous with the Initial Term or Renewal Term of the Agreement.
If Customer requests Professional Services, such as support services not provided under this Agreement, training, or other consulting services, NEMERALD may (but has no obligation to) provide such Professional Services or recommend appropriate outside consultants. If NEMERALD agrees to provide such additional Professional Services at Customer’s request, fees for such Professional Services may be provided pursuant to a fixed fee or NEMERALD’s standard time and material rates as provided in an agreed upon Service Order or addendum to the same.
9.Monitoring services use. Customer agrees that NEMERALD is entitled to monitor Customer’s use of Service, at NEMERALD’s expense. Customer may also be subject to a preliminary fraud review and approval process for select NEMERALD services.
10. Technical support.NEMERALD provides technical support to Customers via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied and except as stated in this Section, NEMERALD has no obligation to provide additional technical support.
11. Reimbursement in connection with breach.In the event of Customer’s breach of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse NEMERALD for all attorneys’ fees and court, collection and other costs incurred by NEMERALD in the enforcement of NEMERALD’s rights hereunder and NEMERALD may keep any deposits or other payments made by Customer.
12.Import and export compliance.Customer agrees to comply with U.S. export laws, and applicable import and export laws that may apply in Customer’s location(s), concerning the transmission of technical data and other regulated materials via the Services, including, without limitation, laws governing the import and export of encryption software.
13. Marketing Materials and Promotional Services. From time and time, NEMERALD may send You marketing materials and offer additional promotional services to You at no cost or at an additional fee (“Promotional Services”). You hereby agree that NEMERALD may send You (including registered administrators and end users of Your Account) such marketing and promotional materials via electronic transmission, e-mail, mail, or otherwise, provided, that You may unsubscribe to such materials at any time by notifying NEMERALD Customer Support. You understand and agree that NEMERALD may modify the scope of the Promotional Services it offers at any time without additional notice to You. You further understand and agree that NEMERALD may offer Promotional Services only to new customers and that You may not be eligible for some or all of the Promotional Service offerings. If You are offered promotional or special pricing by NEMERALD on any of the Services, You agree to keep the pricing information strictly confidential and shall not disclose such information to any third party without the express written consent of NEMERALD.
14. Use Policies
You shall not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with NEMERALD’s ability to provide high quality Services to other customers, prevents or restricts other customers from using the Services, or damages any NEMERALD’s or other customers’ property. If NEMERALD finds that You are using the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, NEMERALD may at its sole discretion terminate Your Service and charge You any applicable fees for the Services used plus damages caused by Your improper use. Prohibited uses include, but are not limited to:
- Behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy.
- Sending unsolicited messages or advertisements, including email, voicemail, SMS, or faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk and/or junk email, voice mail, SMS, or faxes.
- Harvesting or otherwise collecting information about others, including email addresses, without their consent.
- Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
- Creating a false Caller ID identity (“ID spoofing”) or forged email/SMS address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services.
- Transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties.
- Violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services.
- Utilizing the Services in excess of what, in NEMERALD’s sole discretion, would be expected of normal 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.
- Using the Services in any way that interferes with other customers’ and third parties’ use and enjoyment of the Services or use the Services in any manner which disrupts, prevents or restricts any other customer from using the Services.
- Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid this Use Policy.
- Using the Applications or Services to store PHI on a non-temporary basis.
- (If You are a HIPAA-Covered Entity) using the Applications or Services to transmit, receive, or store PHI.
You further understand and agree that:
- You shall be solely liable for any transmissions sent and data stored through the Services under Your Account, including the content of any transmission sent and data stored through the Services under Your Account.
- You will abide by all applicable NEMERALD policies, procedures, and agreements related to the Services.
- You 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.
- Your use of the Services is subject to all applicable local, state, national, and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws, and false advertising).
In addition, some of NEMERALD’s plans and other Services are offered on an “unlimited” basis. All unlimited plans:
- May only be used for normal business use.
- Are provided only for dialog between two individuals at one time per line.
- Exclude international calling, which is available for an additional fee.
- Are issued on a “one (1) user per line basis”, meaning that only one registered user may be assigned to use the Services for any one line.
Unlimited plans also may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services):
- Trunking or forwarding Your NEMERALD number to (an)other phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
- Spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously).
- Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.).
- Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls).
In addition, unusually high usage of the Services may impair NEMERALD’s ability to provide high quality Services to others and/or indicate unauthorized use of the Services, in which case NEMERALD may suspend or terminate Your Account or, upon prior notice, convert Your Account to a metered calling plan that charges significantly higher usage rates.
NEMERALD reserves the right to add to, modify or amend this Use Policy at any time for any reason at its sole discretion.
15. Unsolicited Advertisements
The transmission of unsolicited calls, using the Services for broadcasting, and/or transmitting unsolicited fax advertisements is illegal under federal law, including the Federal Telephone Consumer Protection Act of 1991 (http://www.fcc.gov/document/telephone-consumer-protection-act-1991), and under a number of similar state laws. Distribution of unsolicited voicemail, broadcast, and fax advertisements through the Services is prohibited. You shall not use the Services to send or transmit any unsolicited communications or advertisements and understand that, if You do, NEMERALD may immediately terminate Your right to use the Services without liability of any kind.
At NEMERALD’s sole option and without further notice, NEMERALD may use technologies and procedures, such as filters, that may terminate such unsolicited advertisements without delivering them. You hereby release and agree to fully, finally, and forever release, hold harmless, and fully indemnify NEMERALD from and against any damages or liabilities of any kind related to any voicemail, broadcast, and/or fax spam or solicitations that You may send and/or receive using the Services.
If You transmit or are otherwise connected with any transmission of voice, fax, e-mail, or other unsolicited marketing messages using the Services, You agree to pay NEMERALD its actual damages if those damages can be reasonably calculated. If actual damages cannot be reasonably calculated, You agree to pay NEMERALD liquidated damages of ten dollars ($10.00) for each unsolicited marketing message transmitted through the Services. You acknowledge that if actual damages cannot be reasonably calculated, these liquidated damages are a reasonable estimation of such damages and are not a penalty.
16. Plan Credits, Taxes, Charges, Fees and Chargebacks
Please note that all prices, taxes, surcharges, and fees are subject to change at any time. You are responsible for paying all charges for Your Account, including but not limited to toll -free, local, long distance, international, additional feature charges, 411 and operator assisted charges, and directory assistance charges, and for all taxes, surcharges, and fees imposed on you or us as a result of your use of the Service. Customers with a past due balance on previous or multiple accounts will be charged the full balance upon opening a new account or updating their credit card information on file. NEMERALD also reserves the right to charge termination and transfer fees consistent with each plan’s terms and conditions and as provided in this Agreement.
17. Taxes, Charges, and Fees
All fees for Services advertised or otherwise listed on the Website are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes or fees and administrative or recovery fees or charges (collectively “Taxes and Fees”). You agree to pay all Taxes and Fees and/or similar liabilities, however denominated, that may now or hereafter be levied on the Services which are chargeable to or recoverable from customers by any federal, state, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Services by NEMERALD, whether or not mandated by law or regulation. Should NEMERALD pay or be required to pay such liabilities (including any Taxes and Fees that were due but not charged or previously collected), You agree that NEMERALD may charge Your credit card on file for such payments upon receipt of an invoice and showing of indebtedness to NEMERALD.
18. Plan Credits and Minutes.
NEMERALD offers several different plans for its products and Services. Some of the plans provide for a fixed number of monthly credits (“Monthly Credits”). If You exceed Your Monthly Credits during the course of a Service month, You may purchase additional credits (“Additional Credits” and collectively with the Monthly Credits, “Plan Credits”) as needed. NEMERALD may also provide You certain bonus credit minutes and/or other promotional incentives (e.g., “tell-a-friend” credits) upon fulfillment of the applicable promotion requirements. All of the Plan Credits are quoted in terms of domestic minute usage, and may be referred to on the Website or by a NEMERALD Customer service representative as “minutes”. As explained below, International Calling may be charged at a different rate than domestic calling, and a Plan Credit “minute” therefore will not entitle You to a minute of international calling.
19. Toll charges.Every call using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Service Plan, which NEMERALD will include in bills and Customer will pay. Calls to a non-NEMERALD telephone phone number outside the United States and Canada will be charged at the current rates published on the NEMERALD website. The duration of each call is to be calculated in one-minute increments and rounded up to the nearest one-minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent When Customer dials an international PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile, rather than landline, or premium rate telephone number, may result in higher toll charges. Charges to Customer for inbound toll free numbers are subject to the geographic restrictions and location of the person calling into the toll free number.
20. Metered Calling Plans.NEMERALD offers several monthly metered plans for some of its products and Services. Each metered calling plan provides You with a toll-free or local telephone number and a fixed number of Plan Credits each month for a monthly fee, excluding taxes, surcharges, and fees. When You exhaust Your initial paid allotment of Plan Credits for Your metered plan, unless You advise us otherwise in writing, we will automatically purchase the minimum package for additional minutes for Your plan on Your behalf (and Your Account will be charged accordingly). Additional minute usage will be debited at the applicable per minute rate(s) for Your metered plan. However, in some limited instances, calls placed under a metered plan may not be counted against Your monthly allotment (e.g., calls made via a local phone number to leave or check voicemail or configure a system and calls answered on the NEMERALD softphone). Please check the details of Your metered plan to determine which calls (if any) are not counted against Your monthly minute allotment. For international calling, international rates will apply.
21. Unlimited Plan
NEMERALD offers unlimited monthly plans for some of its products and Services. An unlimited plan provides You with a local or toll-free telephone number and is subject to the terms and restrictions of the Terms and Conditions set forth above and other restrictions described in this Agreement. If, for any reason, NEMERALD believes that You are using the unlimited plan for a prohibited purpose and/or Your call usage violates the Use Policy, then NEMERALD may, in its sole discretion with or without notice, either terminate Your unlimited plan or immediately convert Your unlimited plan to a metered plan, as set forth above.
22. International Calling.Because Plan Credits are quoted for domestic minute usage, You may be charged additional Plan Credits and/or additional rates may apply if You use Your Plan Credits for international calling. NEMERALD’s current international rates are available at www.nemerald.com. To make international calls using the Services, You must purchase the minimum package of international calling credits. If You dial an international number and do not have any credits to make such call, You will automatically purchase the minimum package in order to complete such call. In addition, You may be charged any applicable Taxes and Fees associated with international calls. You are advised to refer to Your specific plan details regarding all domestic and international charges and all other terms and conditions of Your plan.
23.Charges and Plan Credits. NEMERALD offers several different plan options for VoIP Service. You may change Your VoIP Service plan at any time; however, a one-time processing fee of ten dollars ($10) may apply when “downgrading” an existing plan to a plan with lower monthly fees (e.g., a plan with fewer minutes and/or features). In addition, certain plans may entitle You to receive discounts on equipment used in connection with NEMERALD Service. If You receive any equipment discounts associated with a VoIP Service plan and subsequently change that plan to one that does not offer those equipment discounts, You agree to reimburse NEMERALD, and hereby authorize NEMERALD to charge Your credit card on file, for such equipment discounts.
24. Value, Ownership, and Expiration of Plan Credits.
Plan Credits, Additional Credits, Promotional Credits, and international calling credits have no monetary value and cannot be exchanged for the cash value at any time after such credits are purchased by You. Plan Credits may only be redeemed and used by the holder or users of the Account to which the Plan Credits have been credited, and may not be sold, transferred, assigned, or used by another user or with another user’s account. Any unused Monthly Credits expire at the end of the relevant Service month and do not “roll over” to the next month. Additional Credits and Promotional Credits expire according to the terms of their purchase.
25. Fraudulent Activity or Erroneous Charges.In the event of suspected fraudulent activity or erroneous charges on Your Account, You agree to contact NEMERALD as soon as possible. In many cases, NEMERALD can mitigate or correct fraudulent activity or erroneous charges without bank or credit card company intervention. If You suspect fraudulent activity or erroneous charges on Your NEMERALD Account, please contact NEMERALD customer support at (310) 929-2680. When You contact customer support, please have the following information available: (a) Your name, contact information, NEMERALD 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 charged to the Account. If You do not contact NEMERALD 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 NEMERALD, and NEMERALD subsequently determines that the charges at issue are not erroneous, NEMERALD 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 NEMERALD be liable for any unauthorized use of Your Account.
26. Discounts.From time to time in its sole discretion, NEMERALD may offer promotions or discounts. Any promotion or discount codes must be provided to NEMERALD upon purchase of the Services. You shall not be entitled to a subsequent credit for such promotions or discounts if You do not request such credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. If a promotion and/or discount is offered on a confidential basis, You agree not to disclose the promotion and/or discount and to assume full responsibility for any harm, direct or indirect, caused to NEMERALD by the disclosure of the promotion and/or discount.
To use the VoIP Service, You may need to purchase phones, headsets, router, switches or other equipment (collectively, “Equipment”). Procuring and maintaining that equipment is your sole responsibility. NEMERALD may, at your request, facilitate the provision of equipment from a third party supplier or resell certain equipment. While we suggest and resell some equipment brands and facilitate your purchase of some equipment as an accommodation, the original equipment manufacturer and not NEMERALD shall be responsible for any equipment defects, if applicable. NEMERALD will pass through all original equipment manufacturer warranties for the equipment to you. NEMERALD shall have no liability to you of any nature regarding such equipment. Please check the equipment provider’s website for warranty, return rules and other terms and conditions applicable to such third party equipment supplier.
Equipment may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided you comply with the terms of this Section and the manufacturer’s Return Materials Authorization (“RMA”) policy. Prior to returning the equipment, you must contact NEMERALD so that NEMERALD may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by NEMERALD in accordance with all RMA procedures. You have ten (10) days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, the original equipment manufacturer will deal with the equipment under its applicable warranty policy.
All equipment obtained from NEMERALD in connection with VoIP Service is subject to the Equipment Return Policy. You understand and acknowledge that if You purchase an annual service plan and You cancel the Services plan prior to the end of Your initial term, cancellation or termination fees, or phone, hardware, and other equipment fees may apply in accordance with the terms and conditions of Your plan. You hereby authorize NEMERALD to charge Your credit card, and You hereby agree to be liable for any and all such fees, costs, and charges.
28. Lost, stolen, altered or broken equipment. Customer shall not modify the Equipment in any way without the express written permission of NEMERALD. Customer shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, Customer is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue to use the Services. Replacement charges will be based on the fair retail price of Equipment, plus applicable shipping costs and taxes. Customer shall immediately notify NEMERALD of any lost or stolen Equipment and shall cooperate with NEMERALD in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At NEMERALD’s sole option, failure to report lost or stolen Equipment in a timely manner will cause Customer to be responsible for all Service Fees accrued until the time that NEMERALD is informed of the loss or theft and NEMERALD is entitled to terminate the Services and Agreement following Customer’s breach of this Section. Equipment not provided by NEMERALD shall not be used by Customer unless specifically agreed to in writing by NEMERALD. Equipment not provided by NEMERALD shall not be supported by NEMERALD.
29. Equipment Return Policy
You are responsible for all return shipping charges for any hardware returned to NEMERALD 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 after the end of any free-trial period and prior to the end of Your first year of service, You hereby authorize us to immediately bill your credit card the appropriate equipment return fees, as set forth below.
If You cancel Your NEMERALD Service within ninety (90) days from the date of purchase of the hardware, You may (a) keep the hardware and pay the list price minus the actual price paid for the hardware, excluding taxes, or (b) return Your hardware and receive a full refund. No returns are accepted after ninety (90) days from the date of purchase of the hardware. 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
30. Account Ownership
The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with NEMERALD. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation. NEMERALD shall not adjudicate ownership-related disputes, or any other internal business dispute. If NEMERALD is unable to determine the valid owner of the Account, NEMERALD reserves the right to suspend or terminate the Account and Services.
31. Storage of User Information
NEMERALD is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that NEMERALD has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e- mails, messages, and/or other communications maintained or transmitted by the Services. In addition, You specifically agree and acknowledge that to the extent that You use the HIPAA Conduit setting, any stored messages will be deleted on or after thirty (30) days. You acknowledge and agree that NEMERALD may establish limits as to the size of communications that NEMERALD transmits or stores and the duration for which NEMERALD stores any communications.
32. Recording Conversations
Certain NEMERALD 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 a record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. NEMERALD 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 NEMERALD from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services.
From time to time, NEMERALD may send You surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. You hereby grant NEMERALD, 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 NEMERALD.
34. Service Changes
You understand and agree that NEMERALD may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to You. In the event that a change to the Services would, in NEMERALD’s reasonable discretion and judgment, permanently and materially diminish or impair the functionality of the Services (a “Change”), NEMERALD shall provide You with written notice of such Change at least sixty (60) days prior to the date the Change will take effect. If the Change is unacceptable to You, You may terminate the Services without penalty by calling NEMERALD at 888-898-4591. Any use of the Services after the effective date of Change will be deemed Your acceptance of the Change.
35. Grant of Rights
NEMERALD grants You a non-exclusive, non-transferable, revocable license, and right to use each voip line exclusively with one user under Your Account, subject to all the other terms of this Agreement. Accordingly, if You want to allow multiple users to use the voip Service, You will need to purchase at least one voip line for each user.
36. Operator Assisted Calling, 311, 511, and other X11 Calling
The voip Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). The voip Service may not support 311, 411, 511, and/or other X11 calling (other than 911 and 711 as specified in this Agreement) in one or more service areas.
36.1 711 Calling
The voip Service allows You to dial 711 to reach Telecommunications Relay Services (“TRS”). TRS enables persons with hearing or speech disabilities to access the public telephone system and communicate with voice telephone users through a communications assistant at a TRS relay center. Because the VoIP Service allows You to use a phone number that may not reflect Your geographic location, 711 calls made using the VoIP Service may not be routed to the appropriate TRS center for Your geographic location.
36.2 Additional Terms for Directory Listing Service
NEMERALD offers a directory assistance listing Service (“Directory Assistance Listing”) associated with Your assigned toll free and/or local number Account, for which the following additional terms shall apply. By subscribing to Directory Assistance Listing, NEMERALD will share certain information about Your Account with third-parties as reasonably necessary to provide phone directory assistance (“Listing Information”). This information may include, without limitation, Your company name, address, and phone numbers. This information will be published in, and made publicly-available through, third-party directory assistance listing services, to be selected by NEMERALD or third-party service providers in their sole discretion. You hereby permit and grant NEMERALD a worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up license to use and disclose Your Account information for these purposes. You further acknowledge that by subscribing to Directory Assistance Listing, Your Listing Information may enter the public domain and that NEMERALD cannot control third parties’ use of such information obtained through Directory Assistance Listing. You represent and warrant that the information provided in Your Account, including without limitation Your company name and address, are true and accurate, and shall remain true and accurate (whether by updating such information or otherwise), at all times that You use the Services.
You may opt out of Directory Assistance Listing at any time. You acknowledge, however, that NEMERALD may not be able to have Your Listing Information removed from some or all third-party directory assistance listing services that have already received Your information. You agree that NEMERALD is under no obligation to have Your Listing Information removed from any third-party directory assistance listing service already in receipt of such information.
NEMERALD bears no responsibility or liability for any cost, damages, liabilities, or inconvenience caused by calls made to Your telephone number; materials sent to You; inaccuracies, errors, or omissions with Listing Information; or any other use of such information. For the avoidance of doubt, NEMERALD shall not be liable to You for any use by third parties of Your Listing Information obtained through Directory Assistance Listing, including without limitation the use of such information after You have opted out of Directory Assistance Listing.
37. Publicity Rights
You agree that NEMERALD may identify You as a user of the Services in its business deals; press releases; marketing materials; electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on NEMERALD’s website; or any other third-party website where NEMERALD or its designated agents may promote the Services. You hereby grant NEMERALD and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
You agree not to directly or indirectly through a third party engage in any conduct or make any communication (public or private) that disparages NEMERALD or the Applications or Services in any way. Such communications include, but are not limited to, publishing, posting, printing, disseminating, or otherwise making such disparaging statements on or through the Internet, in any blog, or through any other form of social media. You further agree not to solicit or encourage, directly or indirectly, any such statements, comments, or communications by any third-party. In accordance with the termination provisions below, NEMERALD may terminate Your access to the Applications or Services if You breach the requirements of this section.
39. Copyright Infringement
Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent, or received using the Applications or Services for purposes of determining copyright infringement. However, NEMERALD reserves the right to terminate access to its Applications or Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Applications or Services if NEMERALD determines that a user is a repeat infringer.
Pursuant to Title 17, Section 512 of the United States Code, all claims of copyright infringement for any material You believe to reside on NEMERALD’s Applications or Services should be provided in writing to NEMERALD’s Legal Department at NEMERALD’s current address which you may receive by contacting customer service at (310) 929-2680.
To the maximum extent permitted by applicable law, You shall indemnify and hold harmless, individually and collectively, NEMERALD, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) 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 or related to (1) the use of or reliance upon the Applications or Services by You or any third party acting upon Your permission, knowledge, authority or direction, (2) a breach of this Agreement by You, (3) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction, (4) the inability to use the Applications or Services or failure or outage of the Applications or Services for any reason, including but not limited to those related to calling, “911” or other emergency responders, (5) the use of the Applications or Services in connection with a violation of any applicable law, code, regulation, or ordnance, and/or (6) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights (including patent, trademark, copyright, and trade secret rights), rights of privacy, and rights of publicity and personality.
Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at NEMERALD’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Your current address on Your Account. You are responsible for notifying NEMERALD of any changes in Your contact information or address through Your Account settings page or by contacting customer service at (310) 929-2680.
Written notice to NEMERALD shall be effective when directed to NEMERALD’s Legal Department and received at NEMERALD’s then-current address as posted on NEMERALD’s Website, www.nemerald.com . Your notice must specify Your name, Account information, and security verification question and answer. All notices from You to NEMERALD must be made in writing.
Notice of a Change of Service will be considered received by Customers and such changes will become binding on Customers, on the date the changes are posted to https://www.nemerald.com/terms-and-conditions/ or other websites owned and managed by NEMERALD (“Change Date”), and no additional notice will be required; provided, however, that any Change of Service that would reasonably be expected to be materially adverse to Customer shall not be binding on Customer unless NEMERALD has notified Customer of such change. If Customer does not send NEMERALD notification of their desire to terminate the Agreement within 30 days after the Change Date, or continues to use the Services after such time, Customer is deemed to have accepted and consented to the Change of Service. If Customer does not consent to the Change of Service and terminates this Agreement, Customer will be responsible for any sums due hereunder
42. 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. NEMERALD generally provides written notice of changes to Your account, including this Agreement and any other legal agreements, via email, electronic notice on the NEMERALD 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 from NEMERALD fully 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. You agree that you are solely responsible for (a) making sure that Your registered email account is current and functional, (b) checking Your registered email account on a routine basis, (c) checking the NEMERALD Website and Your Account page on a routine basis, and (d) making sure that NEMERALD communications 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.
In the event of a Change of Service, NEMERALD will post to the website currently located https://www.nemerald.com/terms-and-conditions/
Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 916-445-1254.
43. Payment Schedule. Customer agrees pay the Service Fee for Services ordered by Customer, and all other amounts due under the Agreement. No refund, transfer or proration shall be made of any unused Plan Credits, Additional Credits, Promotional Credits, or international calling credits or of any remaining periods/months on any Service plan. Any applicable initiation charges, usage, monthly recurring charges, support charges, taxes and other fees are billed in full in advance on the first day of each billing period. The first month’s Service Fee shall be prorated to take into account any partial calendar month that may occur as the result of the date monthly Service Fees are initiated. Termination, international calling, equipment return fees and transfer charges, if any, are billed in arrears. Upon termination of Your Account for any reason, all unused Plan Credits, and international calling credits shall expire in their entirety on the termination date.
43.1 Payment Processing.
You agree to provide us with a valid email address and a valid payment method, such as a valid credit card (including proper billing information), and, if applicable, authorize us to collect from Your payment method. Any authorization will remain valid until thirty (30) days after You terminate our authority to charge Your payment method. Upon termination, we will charge You any fees and any other outstanding charges and disconnect Your service. You agree to advise and notify us of any changes to Your email address and/or payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Your Account is declined or fails for any reason, NEMERALD will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, NEMERALD reserves the right to disconnect Your Service and terminate Your Account if Your credit card on file is declined or fails for any reason, and NEMERALD reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to NEMERALD.
You authorize NEMERALD to automatically bill the credit card you provided, until you cancel the Services in accordance with the requirements CENCELLATION POLICY.
Failure to pay in full within 30 (Thirty) days from the due date will result in immediate account suspension and NEMERALD shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at NEMERALD’s sole discretion, only when the account balance is paid in full and a $35 reconnection fee is paid.You agree and acknowledge that time is of the essence for payment of all fees and charges. If any charges for the Services or Products are due but unpaid for any reason including, but not limited to non-payment, Customer will be subject to a late fee of the greater of thirty dollars ($30.00) or 5% per month (but in any event no greater than the maximum amount permitted by law).
43.3 Taxes. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides NEMERALD with an appropriate exemption certificate.
43.4 Regulatory recovery fee.
A regulatory recovery fee will be charged monthly to offset costs incurred by NEMERALD in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every user, extension, Number or Ported Number including toll free and virtual numbers.
43.5 Early termination charge. UNLESS OTHERWISE PROVIDED FOR IN THE AGREEMENT, If a Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), NEMERALD will charge Customer, and Customer will pay, an early termination charge equal to 100% of the Monthly Service Fee for the terminated Service(s) multiplied by the number of months remaining in the Terminated Term on the date of termination.
43.6 Overage and other charges. If the Terminated Term is the Initial Term, NEMERALD will also charge Customer, and Customer will pay, any unpaid non-recurring charges waived at the beginning of the Initial Term. NEMERALD reserves the right to charge overage fees when Customer exceeds the usage limits on applicable services, including, but not limited to, recording services.
43.7 Service downgrades. A Customer may not reduce the number of lines or seats, or the number of services, provided under a Service Plan during the Initial Term or any Renewal Term without NEMERALD’s consent unless otherwise provided in the Agreement. Any reduction in the number of lines or seats under a Service Plan shall be treated as a termination of Service with respect to those lines or seats. Any reduction or downgrading of Services shall be treated as a termination of Service with respect to the applicable Services. NEMERALD’s acceptance of any proposed reduction in lines, seats or services shall not release customer from its obligations to pay applicable fees and charges unless NEMERALD expressly agrees in writing to waive such fees and charges.
43.8 Rate changes. Rates will not be increased during the Initial Term, with the exception of tax or fee changes and international toll calling rates. Otherwise, NEMERALD may change the prices for the Services, toll charges, fees and taxes, from time to time. In the event of a change in prices or toll charges, NEMERALD will post such changes to its website currently located at www.nemerald.com. International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates. The Service Fees effective upon any renewal of the Agreement shall be NEMERALD’s then-current Service Fees for the applicable Services.
43.9 Billing disputes. You must dispute any charges for the Services in writing to NEMERALD within thirty (30) days of the date of the charge by NEMERALD. If You fail to provide a written statement explaining in reasonable detail Your reasons for disputing the charge within such time period, You hereby irrevocably waive any objection and further recourse with regard to such charges. Written statements disputing charges must be sent to the following address firstname.lastname@example.org
44. Release of Numbers. You acknowledge that in the event of any account termination or cancellation, all telephone numbers associated with your account may be released. Similarly, the cancellation of individual services which have associated telephone numbers will result in the release of such numbers. You acknowledge that it is your responsibility to work with a third party provider to port out those numbers prior to your termination or cancellation of your account or termination of services.
45. Credentials Necessary to Access Services. Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators to access the NEMERALD user interface, as well as the media access control (MAC) address of telephones used by Customer. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity, as will use of the Services using a network that has not been secured using best practice measures. Customer acknowledges that Customer bears the risk of loss arising from any unauthorized or fraudulent usage of the Services. NEMERALD may, but shall not be required, to take action to prevent or terminate any fraud or abuse in connection with the Services.
46. Ancillary Services. Caller name identification (i.e., caller ID with name) Services is provided by NEMERALD are based on availability of such Services from NEMERALD’s underlying providers. We do not guarantee that such Services are available for all numbers in all serving areas.
47. Telephone number.Any telephone number provided by NEMERALD (“Number”) to Customer shall be leased and not sold. Customer will not use the Number with any other device other than the Equipment without the express written permission of NEMERALD. Except with regard to telephone numbers which had been assigned to Customer by another service provider and then ported to NEMERALD (“Ported Numbers”), NEMERALD reserves the right to change, cancel or move Numbers in its reasonable discretion. Upon termination of the Services and at Customer’s request, NEMERALD will employ commercially reasonable efforts to assist Customer to port out the Numbers and the Ported Numbers and NEMERALD will charge a port out fee of $5.00 per Number or Ported Number. Customer acknowledges that the porting of all Numbers and Ported Numbers is dependent upon the cooperation of third parties not under the control of NEMERALD.
48. Ported telephone numbers on service disconnection.
48.1 Single line Accounts.
You may be able to take, or “port,” your current telephone number(s) to another service provider. You will remain responsible for all charges and fees until you notify NEMERALD of your election to cancel services. Until you notify us of your intention to cancel, your Service and your Agreement with us will not terminate, you will remain a NEMERALD customer, and you will continue to be responsible for all charges and fees associated with your NEMERALD Service. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
48.2 Multiple-line Accounts.
If you request that a new service provider port a number from us and you have multiple numbers assigned to your account and/or additional equipment on your account, you are required to inform us of your intent to terminate the specific affected Services on your account or we will continue to bill for such Services. You will continue to be responsible for all the charges and fees associated with the remaining Services on your NEMERALD account. You will not receive any refund or partial refund or any credits for any charges already billed to your account. Telephone numbers assigned by NEMERALD for NEMERALD’s facsimile service cannot be ported to a new service provider without the assistance and cooperation of NEMERALD’ underlying partner who provides their phone numbers. NEMERALD will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on your behalf to NEMERALD by another service provider. You may be required to pay a porting fee to NEMERALD of not less than $100 per facsimile number ported
48.3 Request for NEMERALD to Port numbers.
NEMERALD will use reasonable efforts to facilitate number transfers or port requests for You, provided that You comply with the necessary and specific procedures for porting between service providers.
You acknowledge and understand that number porting depends on the cooperation of third parties outside of NEMERALD’s control. Accordingly, You agree that NEMERALD will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number, or for the allegedly unauthorized porting of any telephone number by a third party.
NEMERALD works with third party carrier(s) who, on NEMERALD’s behalf, port telephone numbers in accordance with applicable Regulatory Rules and Industry Guidelines. NEMERALD’s third-party carrier(s) require very specific and detailed information and requirements when completing a port request. . FAILURE TO PROVIDE ANY INFORMATION REQUESTED BY NEMERALD OR THE THIRD PARTY SERVICE PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO NEMERALD. NEMERALD SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF YOUR NUMBER AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
Please be informed that You will be required to provide such detailed and specific information to complete a port request. For porting numbers into Your NEMERALD Account, follow the procedures on Your Account settings page for transferring a number to Your NEMERALD Account. For porting numbers out of Your NEMERALD Account, follow the procedures of Your new service provider. You understand that porting Your number out of Your Account does not automatically terminate Your NEMERALD Account.
Number porting is defined and regulated by the Federal Communications Commission (FCC). Visit http://www.fcc.gov/cgb/numberportability to learn more about number porting.
NEMERALD cannot guarantee requested telephone numbers will be available, that Your existing provider will port Your number, or that circumstances beyond NEMERALD’s control will not prevent or delay a successful port of Your number for the Services. You 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 that telephone number becomes active on Your Account. NEMERALD shall not be liable for reimbursement for press releases, business cards, and/or stationery under any conditions.
You understand and agree that NEMERALD 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). NEMERALD 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.
49. CANCELLATION OF SERVICES..
Either party may terminate the Agreement upon thirty (30) days’ notice of termination to the other party by having the User or Authorized User contact NEMERALD Customer Care by (i) telephone during normal business hours AND (ii) sending a cancellation request to email@example.com . YOU MUST CANCEL SERVICES THROUGH THESE TWO STEPS. NEMERALD WILL NOT ACCEPT CANCELLATION VIA FAX, SMS OR OTHER METHODS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE FEES. NEMERALD will provide you with email confirmation of both your request to cancel Services and the actual cancellation of Services. If you do not receive a confirmation of your request to cancel or if you do not receive a confirmation of Service cancellation, you must notify NEMERALD by sending an email to firstname.lastname@example.org or contacting NEMERALD Customer Care by telephone. Any Equipment returned in conjunction with a cancelled Service Order or termination under this clause may also be subject to a restocking fee.
In the event you signed up for a minimum commitment period, you will be responsible for all charges for the entire minimum commitment period. When you cancel your service all such fees will immediately accelerate and you authorize NEMERALD to immediately bill all these fees to your payment method.
In the event that you subscribe to ancillary services provided by NEMERALD, your election to cancel telephone service or any termination with NEMERALD shall also cancel such ancillary Services. In the event that NEMERALD is providing data backup, voicemail recording, call recording, or other such ancillary service to you, all of your data, including all recordings, will be deleted on or after the date that you cancel such service, In the event that you cancel an end user account within the online Web user interface (located at www.nemerald.com) , the user data associated with such account on the ancillary service will be automatically deleted.
NEMERALD does not refund in whole or in part, or issue credits for any charges already billed to your account. In the event you signed up for a minimum commitment period for the Services being cancelled, you are responsible for all charges for the entire minimum commitment period.
50. Immediate termination.
NEMERALD shall be entitled, in good faith, and in its reasonable discretion, to suspend, terminate or change the Services without advanced notice for Customer’s material breach of the Agreement, suspected fraud or any misuse of the Services that adversely affects the Services, NEMERALD, NEMERALD’s network or other Customers’ use of the Services. NEMERALD may require, and if required, Customer shall pay, an activation fee as a condition to changing or resuming a suspended or terminated account. In the event of termination by NEMERALD during the Initial Term or any Renewal Term, an early termination charge will apply and disconnection fees and other charges may also apply.
51. Service use restrictions.
51.1 Compliance with Laws.
You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing. NEMERALD may provide you with guidelines regarding compliance with applicable regulation(s); however, you are solely responsible for ensuring that your use of the Services is in compliance with such regulations. You may only use the Services for your own use. You may not use the Services in any way to provide, or as part of, any commercial service or application or in any way interfere with the users, services or equipment of the network. You may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service. In addition to any other remedies available in equity or law to NEMERALD, failure to comply with any of the terms and conditions in this Section (Service Use Restrictions) shall result in immediate termination of the Services.
51.2 Fair Use.
NEMERALD’s business service plans and features are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. “Typical” refers to the calling patterns of at least 95% of our business customers on the same business calling plan. While most reasonable uses of our Services in connection with the terms of this provision (“Fair Use Policy” or “Policy”) are permitted by NEMERALD, unauthorized or excessive use beyond that normally experienced by typical business customers may cause extreme network capacity and congestion issues and interfere with our network and third party networks with whom we connect for call initiation and completion services. Such unauthorized or excessive use may manifest itself in increased busy signals for our customers and others, and may result in service termination. Any use of the Services or any other action that causes a disruption in the network integrity of NEMERALD services or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Services.
52. Evaluation of Usage
NEMERALD evaluates customer usage in comparison to typical levels of permissible usage engaged in by our customers (business use under business service plans or affiliate use under co-branded business service offers or business plans). Co-branded use is defined as NEMERALD’s service that is provided by a third party partner under that third party partner’s marketing brand, with or without reference to NEMERALD. Each of the following is impermissible under NEMERALD’s business plans and considered outside of normal use, whether obtained directly from NEMERALD, an authorized reseller, or from a co-branded NEMERALD partner:
- Resale to others
- Auto-dialing or fax/voice blasts
- Without live dialog, including use as a monitor or for transcription purposes
- Continuous or extensive call forwarding
- Continuous connectivity
- Constant dialing
- Iterative dialing
- Fax broadcast
- Fax blasting
Telemarketing involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage.
You agree that you will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the Services. You agree and represent that you are purchasing the Services and/or the equipment for your own internal use only, and shall not resell, transfer or make a charge to the Services without the advance express written permission of NEMERALD.
NEMERALD reserves the right to review usage of unlimited usage plans to ensure that you are not abusing such plans. You agree to use unlimited voice plans for normal voice related communications with aggregate usage that falls within the range of similarly situated business customers. Use of unlimited “paperless facsimile” service must also fall within the normal range of similarly situated business customers and shall in no event exceed 500 transmitted pages sent or received per month. In addition, you agree that you will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by NEMERALD. NEMERALD may terminate service immediately if it determines, in its sole discretion, you are abusing an unlimited minute plan.
We reserve the right to at any time to enforce this policy in accordance with its terms. You agree that your level of usage of our unlimited service plans will be comparable to that of our typical business customer utilizing such plans. NEMERALD deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. You agree that NEMERALD has the right to terminate your service or charge you additional fees if your usage is considered abusive in the sole discretion of NEMERALD.
53. Excessive Usage
If it is determined that your usage is abusive, you agree to pay a per minute or per page fee for use in excess of those levels at the then current rate established by NEMERALD, of at least $.06 per minute and/or $.06 per facsimile page. At NEMERALD’s sole option, your service may be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS. A customer’s aggregate usage may be considered outside of normal use if involves excessive:
- Number of calls made to a conference calling service during a month;
- Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or
- Other abnormal calling patterns indicative of an attempt to evade enforcement of this Fair Use Policy
Based on such a combination, NEMERALD may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan, and may take appropriate steps described below to enforce this Policy and the Terms of Service.
54. For Lawful and Appropriate Purposes Only; NEMERALD’s Rights
You may not use our Service or devices in any way that is illegal, fraudulent, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, fraudulent, improper, or inappropriate uses of our Service and or devices.
- Fraudulent; and\or
- Invasive of another’s privacy or any similar behavior
54. Prohibited Use.
- You may not use any automated means to manipulate our Service or use our Service to violate any law, rule, regulation or any third parties intellectual property or personal rights – You shall not use our Service or our device to;
- Impersonate another person;
- Send bulk unsolicited messages;
- Use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from our Service or use any automated means to manipulate our Service;
- Violate any law, rule or regulation;
- Violate any third party’s intellectual property or personal rights, or
- Exceed your permitted access to our Service
We may monitor the use of our Service for violations Terms of Service. We may remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our Service, or NEMERALD, its parent, affiliates, directors, officers, agents, and employees from harm.
We reserve the right to review your account and take further action, including, but not limited to, immediate suspension of your Service if account usage is beyond normal standards for typical customers on the same calling plan, impermissible or detrimental to other customers’ ability to use the Service or adversely affects our or third party network providers’ operations. We may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers on the same plan(s). If we determine that you are engaging in abnormal or impermissible usage, we will use commercially reasonable efforts to inform you and may provide you with the opportunity to correct the improper usage. If we afford you the opportunity to correct your abnormal usage patterns and you fail to immediately conform to normal use, we may exercise our right to transfer your service to a more appropriate plan, charge applicable rates for that plan, implement other limitations or suspend or terminate your service with or without notice. If we believe that our Service has been used for an unlawful purpose, we may immediately terminate your Service with or without notice and/or forward the relevant communication and other information to the appropriate authorities for investigation and prosecution. We reserve all of our legal rights.
55. Right to Disclose Information
If we believe that you have used our service or device for unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, you hereby agree disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:
- In response to law enforcement or other governmental agency requests;
- As required by law, regulation, rule, subpoena, search warrant, or court order;
- As necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both;
- To protect NEMERALD’s rights and property; or
- In emergency situations where disclosure of such information is necessary to protect NEMERALD’S customers or third parties from imminent harm.
NEMERALD reserves the right to change this Policy at any time upon notice to you. Changes shall become effective upon the later of the date specified in the notice or when a revised Policy is posted to NEMERALD’s website http://22.214.171.124
57. Emergency services- 911 dialing & non-voice systems.
58.1 Non-Availability of Traditional 911 or E911 Dialing Service.
At NEMERALD 911 dialing service operates differently than traditional 911. You agree to inform any business invitees, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your NEMERALD’s Service and equipment. The physical location where you utilize the Service must be the actual physical street address where the equipment is located, not a P.O box, mail drop or similar address.
58.2 Description of 911-Type Dialing Capabilities – Activation Required.
NEMERALD offers 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that differs from traditional 911 services. When you dial 911 your call is routed from the NEMERALD network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. Calls to 911 using a NEMERALD-provided mobile or softphone application may use the native dialer of the customer-provided device to complete the call to 911 using the carrier’s cellular network. If the native dialer is unavailable due to lack of service coverage or other condition that would prevent the call from being placed, the NEMERALD-provided mobile or softphone application will attempt to complete the call over an alternative, non-cellular network. 911 calls completed using a NEMERALD-provided mobile or softphone application over a non-cellular will be routed to a national clearing house. In such situations, 911 fees and taxes may not be assessed.
Calls dialed by handset extensions included in your account with NEMERALD will be routed from the NEMERALD’s network to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local psaps for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided however, that the Super-user-”, or System Administrator has previously activated that functionality. Updates can be made by contacting customer service at (310) 929-2680. It is your sole responsibility to make these changes and to ensure that all business invitees, household residents, guests and other third persons who may be present at the physical location(s) where you utilize the Service are aware of this option.
For any NEMERALD extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.
NEMERALD voip 911 Service (“voip 911 Service”) operates differently than traditional 911 service. We are required by the FCC to advise you of the circumstances under which 911 may not be available or may be in some way limited by comparison to traditional 911 service. Such circumstances include:
Internet Connection Failure. If the connection to the wired broadband Internet over which Your NEMERALD voip Service is provided is interrupted, You would not have access to NEMERALD voip Service during that interruption and therefore will not have access to voip 911 service during that interruption.
Number Flexibility & Service Portability. Traditional 911 service automatically sends Your 911 call to the appropriate local emergency responder, or Public Safety Answering Point (“PSAP”), based on Your telephone number. Traditional Enhanced 911 service (also known as E911) automatically sends Your 911 call to the appropriate PSAP along with Your registered address and telephone number. Because the NEMERALD voip Service permits You to obtain a telephone number that does not correspond to Your geographic location (for example, You may obtain a NEMERALD voip telephone number with a California area code even if You do not have a California address) and allows You to use NEMERALD voip Service anywhere You have wired broadband Internet, the voip 911 Service functions differently than traditional 911 service in certain respects:
Because Your address does not necessarily correspond with Your telephone number, You must provide NEMERALD with the street address(es) where You will be using NEMERALD voip Service (“Registered Location(s)”) when You sign up for service.
If You relocate any equipment (PC with softphone, IP phone, or ATA with traditional phone) that You use to access the voip Service, You must update Your Registered Location(s). If You do not update your Registered Location(s), any 911 calls You make using the voip Service will be routed based on Your previously provided Registered Location and therefore may not be routed to the appropriate PSAP for Your new location.
In addition, because the voip Service will, where possible, automatically transmit Your Registered Location to the PSAP, You must update Your Registered Location to ensure that the voip Service transmits accurate location information to the PSAP.
Once You notify us of a change in Your Registered Location, there may be a delay in making the new Registered Location available to properly route 911 calls and advise psaps of Your new Registered Location.
In some parts of the country where direct routing to psaps is not available for voip 911 Service, the Service will route Your call to the National Emergency Call Center where trained agents will ask for the name, location, and telephone number of the person calling 911 and will contact the appropriate PSAP to send help. The call center will not automatically receive Your address and telephone number. In these situations, public safety response times may be delayed. As a result, there may be an additional delay before emergency services arrive.
Loss of Electrical Power. Unless You have a backup system to power Your wired broadband Internet connection and any equipment (PC with softphone, IP phone, ATA with traditional phone) that You use to access Your voip Service, You will not have phone service or 911 service during any power outage.
58.3 Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911.
You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
59. Automated Number Identification.
Technical limitations may make it impossible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. NEMERALD’s system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.
60. Limitation of Liability and Indemnification Related to E/911 Services.
NEMERALD relies on third parties for the forwarding of information underlying such routing. NEMERALD and its third party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. NEMERALD and its officers, directors or employees may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to NEMERALD’s 911 dialing.
You agree to defend, indemnify and hold harmless NEMERALD, its officers, directors, employees, affiliates, agents and its third party provider(s) from any and all third party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of, or resulting from (a) your failure to correctly activate 911 calling; (b) your provision to NEMERALD of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Service, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.
61. Alternative 911 Arrangements. You acknowledge and agree that (a) NEMERALD does not offer primary line or lifeline services; (b) the equipment and Services do not support 911 emergency dialing or other emergency functions; and (c) users of the Services, who may place calls using your phone services, need to be notified of the 911 limitations.
NEMERALD ADVISES YOU TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES SUCH AS TRADITIONAL TELEPHONES AND CELLULAR PHONES. YOU SHOULD ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES.
62. E911 SERVICE FEE. CUSTOMERS THAT ARE REQUIRED TO SUBSCRIBE TO NEMERALD E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE FEE (IN ADDITION TO ANY APPLICABLE STATE 911 TAX BASED ON CUSTOMER’S SERVICE ADDRESS). THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR NEMERALD E911 SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES NEMERALD FOR THE DIRECT COSTS IT INCURS IN PROVIDING NEMERALD E911 SERVICE, INCLUDING EXPENSES NEMERALD INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO CUSTOMERS SUBSCRIBING TO THE SERVICES. NEMERALD RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEE SECTION 20 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR SERVICE PLAN.)
64. Warranty Disclaimer
The services provided hereunder are provided “as is” and “as available” and NEMERALD makes no warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose and any similar warranty, whether said warranty arises under provisions of any law of the united states or any state thereof or any country. NEMERALD makes no representations or warranties that the services are free of rightful claims of any third party for infringement or misappropriation of intellectual property or other proprietary rights (including patent and trade secret rights). The entire risk associated with the use of the services shall be borne solely by you.
NEMERALD makes no warranty on up-time, response times, latency, mean-time between failures, quality of service, and/or quality of voice or fax communications. NEMERALD 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.
NEMERALD expressly disclaims any warranty that the services are appropriate for use as a repository or means by which to store phi on a non-temporary basis or for use by a hipaa-covered entity to transmit, receive, or store phi without activation of the NEMERALD hipaa conduit setting.
NEMERALD 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. NEMERALD is not responsible for messages or information lost or misdirected due to interruptions or fluctuations in the services or the internet in general. NEMERALD is not responsible for the content or functionality of any third party network used in connection with the services.
NEMERALD does not warrant the accuracy or reliability of the results obtained through use of the services or any data or information downloaded or otherwise obtained or acquired through the use of the services. You acknowledge that any data or information downloaded or otherwise obtained or acquired through the use of the services are at your sole risk and discretion and NEMERALD will not be liable or responsible for any damage to you or your property.
No advice or information, whether oral or written, obtained by you from NEMERALD, its employees, resellers, partners, or affiliates or through or from the services shall create any warranty not expressly stated in these terms and conditions.
Although every effort is made to ensure that voicemails and fax transmissions are secure, NEMERALD makes no guarantees of security.
Some jurisdictions do not permit the disclaimer of certain implied warranties, so certain of the foregoing disclaimers may not apply to you. To the extent that NEMERALD cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.
65. Limitation of liability
In no event shall NEMERALD be liable to you or any third party for special, exemplary, indirect, incidental, consequential, or punitive damages of any kind whether arising under contract, warranty, tort (including negligence or strict liability), or any other theory of liability, even if NEMERALD has been informed in advance of such damages or such damages could have been reasonably foreseen by NEMERALD. NEMERALD’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 NEMERALD 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. Some jurisdictions do not allow certain limitations of liability, so certain of the foregoing limitations may not apply to you.
66. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). NEMERALD shall not be liable for any failure or delay in the performance of its obligations hereunder that are directly or indirectly caused by or resulting from events beyond NEMERALD’s reasonable control, including, without limitation, acts of God, fire, flood, hurricane, earthquake, tsunami, riot, war, terrorism, government actions and intervention, embargoes, strikes, destruction of facilities, late or failed delivery by suppliers, or unavailability of power or Internet services or other events that are beyond NEMERALD’s reasonable control.
67. No assignment
This Agreement is personal to you (or the company which you represent), and may not be assigned without NEMERALD’s express written consent. If you are agreeing on behalf of a company, you represent that you are authorized to bind the company under this Agreement.
68. Dispute Resolution and Optional Arbitration
In the event of any dispute, claim, question, or disagreement between You and NEMERALD (“Dispute”), You and NEMERALD shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of NEMERALD’s legal department (or other representative of NEMERALD designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor NEMERALD shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
You agree that any Disputes shall be adjudicated in the state and federal courts of the State of California, U.S.A. Venue for any Disputes shall be the Superior Court of California, County of Los Angeles for state court cases, and the United States District Court of the Southern District of California for federal court cases. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, 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.
In the event of any litigation (including arbitration) between You and NEMERALD, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.
69. Fees and Costs
You are responsible for all costs that you incur in the arbitration, including, but not limited to, attorneys or expert witness fees. If a party elects to appeal an award, the prevailing party in the appeal shall be entitled to recover all reasonable attorneys’ fees incurred in that appeal. Notwithstanding anything to the contrary in this arbitration provision, NEMERALD shall pay all fees and costs which it is required by law to pay.
70. Waiver of Jury Trial. You and NEMERALD agree that, by entering into this agreement, you and NEMERALD are waiving the right to a trial by jury.
71. Waiver of Class Actions
You and NEMERALD agree that the arbitrator may award 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. YOU AND NEMERALD AGREE THAT YOU AND NEMERALD MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. You and NEMERALD agree that, unless you and NEMERALD agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding.
72. Statute of Limitations. State laws may limit the time period after which you may assert a claim; in some cases you may be required to assert a claim within one (1) year after the occurrence of the event or facts giving rise to a dispute (except for billing disputes). Your failure to timely assert your claim may result in a waiver of your legal rights.
73. Exceptions to Arbitration Agreement
You and NEMERALD agree:
You may take your dispute to small claims court, if your dispute qualifies for hearing by such court;
If you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement;
You or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction;
Any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and
Either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or NEMERALD, pending the completion of arbitration.
74. Choice of Law
This Agreement and Your use of the Applications and Services shall be governed by and construed under the laws of the State of California and the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Your sign up or use of the Applications or Services.