GDS VoIP Terms and Conditions
VoIP Terms and Conditions This agreement (“Agreement”) is between GDS Telecom, LLC (“GDS”) and a Customer (“Customer”) of the GDS Communications Voice and Video Communications Service (“GDS VoIP”). Any GDS VoIP services or products (“Services”) provided by GDS to Customer shall be governed by the terms and conditions herein. By activating the Services, Customer acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein. Customer acknowledges that they are of legal age to enter into this Agreement.
- TERMS AND CONDITIONS: The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY GDS, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON GDS. No waiver or amendment to this contract or these terms and conditions shall be binding on GDS unless made in writing expressly stating that it is such a waiver or amendment and signed by a representative of GDS.
- TERM: Service is offered contracted basis outlined in your agreement. The term begins on the date that GDS activates your Service and continues in whole months after the initial month. Subsequent terms of this Agreement automatically renew on a monthly basis after your contracted term without further action by you unless you give GDS written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term, including without limitation unbilled charges including toll charges, plus any disconnect fees or early termination fees, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement or any other services in the agreement.
- 911 AND SERVICE REQUIREMENTS: See Attached 911 GDSPBX EMERGENCY SERVICES document
- EQUIPMENT: To provide the Services, GDS may provide Equipment to Customer. All Equipment shipments are F.O.B. GDS’s facility. GDS’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided a twelve (12) month manufacturer’s warranty from the date of purchase of Equipment or Service. Customer shall be required to obtain authorization from GDS to return any Equipment. GDS will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. GDS will not cover replacement for lost, stolen or modified equipment. Equipment returned by Customer that is not covered under warranty may be refused by GDS, and Customer will be responsible to pay return shipping charges.
- BILLING, CHARGES AND PAYMENT:
i. Option 1: Upon purchase of the Service, Customer must provide GDS with a valid credit card number from an accepted issuer (Visa, MasterCard, or Discover). Customer authorizes GDS to charge the credit card number provided by Customer (“Credit Card”) for all charges arising from Customer’s use of the Services. Customer agrees to notify GDS of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. GDS shall not be responsible for any charges made by the Credit Card issuer to Customer’s Credit Card account for exceeding credit limit, insufficient funds or other reasons.
ii. Option 2: Upon purchase of the Service, Customer will be setup as Due on Receipt Invoice Authorization if approved. Customer shall be responsible for any NSF or Returned Payment Fees
b. CREDIT TERMS: All Services provided to Customer and covered by the Agreement shall at all times be subjected to credit approval or review by GDS. Customer will provide such credit information or assurance as is requested by GDS at any time. GDS, in its sole discretion and judgment, may discontinue credit at any time without notice.
c. BILLING: GDS will provide Customer with on-line service listing for the Services and bill all charges for Customer’s account to the Credit Card on or about the 1st of each month. Such charges shall include activation fees, monthly service fees, shipping charges, termination fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month’s service; toll charges and any other applicable charges are billed at the end of each month’s service. GDS reserves the right to charge the Credit Card for toll charges at any time if Customer’s cumulative toll charges for the current month exceed two hundred and fifty dollars ($250.00). Billing for monthly service fees commences upon receipt of the equipment for the Services, and the first month’s monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.
d. LATE/NON-PAYMENT: If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, GDS may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by GDS. If charges cannot be processed to the Credit Card, Customer will be given 10 days email notice prior to suspension. No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder and leaves Customer FULLY LIABLE to GDS for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by GDS in collecting such amounts, such as (but not limited to) collection costs and attorney’s fees.
e. TAXES: Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility 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 GDS with an appropriate exemption certificate. If any amounts paid for the Services are refunded by GDS, applicable taxes may not be refundable.
f. CREDITS: Customer acknowledges and agrees that the Services are provided “as is, where is.” Credit allowances for interruption of the Services shall not be provided.
g. DISCOUNTS: From time to time in its sole discretion, GDS may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be entered by Customer upon purchase of the Services. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service.
h. BILLING DISPUTES: Customer must dispute any charges for the Services within thirty (30) days of receipt of the monthly online invoice or Customer waives any objection.
i. EARLY TERMINATION FEE: 100% of the remaining charges in agreement term plus any waived installation fees and full retail price of non-returned equipment. This is exclusive of any other GDS services. A number transfer or “Port” to a new provider does not constitute written notice. Any services transferred will be terminated and we will select the most appropriate billing plan for any remaining numbers and/or services on your account, and you will continue to be responsible for all the charges and fees associated with the remaining services, including any cancellation fees applicable to the ported number.
- TOLLS: Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”) is subject to the then applicable toll charges that are associated with the Plan. Every call to or from Equipment using the Services that originates or terminates with a SIP service provider that is not affiliated or associated with GDS will also count as PSTN minutes and be subject to the then applicable toll charges that are associated with the Plan. Calls to a phone number outside the United States to a non-GDS account or IP partner will be charged at the current rates. The duration of each call is to be calculated in thirty (6) second increments and rounded up to the nearest thirty (6) second increment with a minimum call duration of thirty (30) seconds.
- CHARGES FOR DIRECTORY CALLS: GDS will charge $2.50 for each call made to GDS directory assistance.
- TELEPHONE NUMBER: Any telephone number provided by GDS (“Number”) to the Customer shall be leased and not sold. Customer is not to use the Number with any other device other than the Equipment without the express written permission of GDS. GDS reserves the right to change, cancel or move the Number at its sole discretion.
- LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT: Customer shall not modify the Equipment in any way without the express written permission of GDS. 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 service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. Customers who have existing Equipment belonging to GDS shall pay GDS for any such lost, stolen or broken Equipment in an amount equal to the retail price of the Equipment less amounts Customer had previously paid specifically for said Equipment. Customer shall immediately notify GDS of any lost or stolen Equipment and shall cooperate with GDS in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At GDS’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 GDS is informed of the loss or theft and can effect a termination of the Services.
- PROHIBITED USES: Any use of the Services or any other action that causes a disruption in the network integrity of GDS or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. Customer understands that neither GDS nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it 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 network. Customer agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of GDS. GDS’s Service Plans for commercial subscribers that offer unlimited minutes of local calls (“Unlimited local Plans”) are for the reasonable personal commercial use of Customer only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with personal, commercial and reasonable business use patterns. Customer agrees to notify GDS if usage of the Unlimited local Plans changes from personal commercial use. GDS reserves the right to immediately terminate or modify the Services of any Customer using Unlimited local Plans if GDS determines, in its sole discretion, that Customer is not using the Unlimited local Plans for Customer’s reasonable personal commercial use. Any usage in excess of five thousand (5,000) minutes per month shall be presumed to be inconsistent with these restrictions and shall be subject to the conditions above. The GDS Plans are limited to persons whose primary address is within the United States.
- CHANGES TO THE AGREEMENT, SERVICES OR PLAN: GDS reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (“Change of Service”). In the event of a Change of Service, GDS will post to the Web Site currently located at https://www.gdstelecom.com/voipterms. Notice will be considered received by Customers and such changes will become binding to Customers, on the date the changes are posted to the Web Site (Change Date), and no additional notice will be required. GDS will post all changes thirty (30) days in advance of the effective date of change. If Customer does not send GDS notification of their desire to terminate this agreement or uses the Service after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this agreement, Customer will be responsible for any sums due hereunder in addition to any applicable Termination Fee. Customer may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply. GDS may decrease prices for the Services or Plans without providing any prior notice to Customer.
- TERMINATION: Customer agrees to provide GDS with ten (10) days notice of termination. Customer shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to GDS. In accordance with section 5.f, a termination fee may apply. GDS reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of this Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, GDS, GDS’s network or other Customer’s use of the Services. GDS reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that GDS’s determination is final and binding on Customer. GDS may require an activation fee to change or resume a terminated or suspended account.
- PRIVACY: GDS utilizes the public Internet and third-party networks to provide voice and video communication services. Accordingly, GDS cannot guarantee the security of voice and video communications of Customer. GDS is committed to respecting an Customer’s privacy. Once Customer chooses to provide personally identifiable information, it will only be used in the context of the Customer’s relationship with GDS. GDS will not sell, rent, or lease Customers’ personally identifiable information to others. Unless required by law or subpoena or if Customer’s prior permission is obtained, GDS will only share the personal data Customer provides with other GDS entities and/or business partners that are acting on GDS’s behalf to complete the activities described herein. Such GDS entities and/or national or international business partners are governed by GDS’s privacy policies with respect to the use of this data. GDS reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either GDS or any company affiliated with GDS. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, GDS may disclose personally identifiable information.
- RETURNS AND ADJUSTMENTS: No Equipment may be returned by Customer for any reason without prior approval of GDS. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to GDS any Equipment that is being returned. Any Equipment returned to GDS without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation Customer must immediately obtain a return material authorization number from GDS, return to GDS any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to GDS an amount equal to the fair retail price of the equipment minus any payments Customer had previously paid specifically for said Equipment.
- TECHNICAL SUPPORT: GDS 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.
- BREACH: In the event of Customer’s breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse GDS for all attorney, court, collection and other costs incurred by GDS in the enforcement of GDS’s rights hereunder and GDS may keep any deposits or other payments made by Customer.
- INDEMNIFICATION: Customer agrees to defend, indemnify and hold GDS, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
- DISCLAIMER OF CONSEQUENTIAL DAMAGES: IN NO EVENT SHALL GDS OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF GDS OR ITS VENDORS OR OTHERWISE.
- WARRANTY AND LIABILITY LIMITATIONS: GDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER GDS NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO GDS’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF GDS’S OR ITS VENDORS? NEGLIGENCE. ANY CLAIM AGAINST GDS MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND GDS HAS NO LIABILITY THEREAFTER. GDS’S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. GDS MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN GDS. IN NO EVENT SHALL GDS’S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO GDS IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
- EXPORT COMPLIANCE: Customer agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materials via the Services. Customer agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
- PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE: Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to Customer by GDS or its vendors.
- NUMBER TRANSFER ON TERMINATION: After termination of the Service, GDS may, at its sole discretion, release a telephone number that was ported in from a previous service provider to GDS by you and used in connection with your Service provisioned by GDS to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has not been terminated; (ii) your GDS account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account.
- COPYRIGHT, TRADEMARK, UNAUTHORIZED USAGE OF DEVISE, SOFTWARE, or FIRMWARE: The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on GDS’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of GDS are and shall remain the exclusive property of GDS and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that GDS will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by GDS, which GDS reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless GDS against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
- NOTICES: GDS communicates with Customers primarily via email. Notices to Customer shall be sent to the email address specified by Customer at the time of registration for the Services or as subsequently specified by Customer (“Email Address”). Customer is responsible for notifying GDS of any Email Address changes. Customer agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that Customer read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
- FORCE MAJEURE (EVENTS BEYOND OUR CONTROL): GDS shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of GDS as may occur in spite of GDS’s best efforts.
- GOVERNING LAW / RESOLUTION OF DISPUTES:
a. Mandatory Arbitration: Any dispute or claim between Customer and GDS arising out of or relating to the Service or Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Atlanta, Georgia and shall be conducted in English. The arbitrator’s decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
b. Governing Law: The Agreement and the relationship between you and GDS shall be governed by the laws of the State of Georgia without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 26.1, Customer and GDS agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Georgia, to the extent possible in Fulton County, and waive any objection as to venue or inconvenient forum. The failure of GDS to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- ENTIRE AGREEMENT: The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of GDS and Customer.