Updated: May 25, 2022
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.
These Terms of Service are entered into by and between you (“you” or “Customer”) and FluentStream Technologies, LLC (“FluentStream,” “we,” or “us”) and constitute a legal contract between you and FluentStream regarding your use of the Services (as defined herein). The terms and conditions herein, together with any Customer Service Orders (as hereinafter defined), addenda, policies or other documents or terms that these terms and conditions expressly incorporate by reference, including without limitation the Emergency Services Policy and Acknowledgment – 911 Notice and Disclosure posted in FluentStream’s online “Legal Center” at https://www.fluentstream.com (the “E911 Policy”), as the same may be amended from time to time, and, if applicable, the Business Associate Agreement available at https://www.fluentstream.com (collectively, the “Agreement”) govern your access to and use of the FluentStream services, platform, websites, hardware sales and leases, data storage, communication software, phone, voice conferencing, video conferencing, reporting, voice products and services, and all related support, including any content, functionality, and other services offered, whether as a guest or a registered user. FluentStream may have different roles with respect to different types of users of the FluentStream website and Services, and “you” and “Customer” as used in this Agreement will apply to the appropriate type of user under the circumstances. If you are entering into this Agreement on behalf of a company, entity, or organization, then “you” refers to you and your entity.
Please read this Agreement carefully. By registering for and/or accessing, browsing, using or subscribing to the Service, executing or accepting a FluentStream agreement, executing a third-party service agreement that FluentStream purchased, or by executing a sales order directly with FluentStream or indirectly with a FluentStream distribution partner (“Customer Service Order”) or otherwise affirmatively manifesting your intent to use the Service, you signify that you have read, understood, accept, and agree to be bound and abide by this Agreement. If you do not want to agree to this Agreement, you must not access or use the Services.
If you are using or opening an account with FluentStream on behalf of a company, entity, or organization, then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to this Agreement; (ii) have read this Agreement and the related documents incorporated herein; (iii) understand this Agreement, and (iv) agree to this Agreement on behalf of such entity.
NOTICE TO CUSTOMERS UNDER ACQUIRED ACCOUNTS
If you entered into a contract or account with a reseller or other third party and you have been notified that your contract or account has been acquired by FluentStream (an “Acquired Contract”), the provisions of the Acquired Contract will remain in force and effect for a “Transition Period,” which shall continue from the date on which the Acquired Contract was acquired by FluentStream until the later of (a) the end of the current term of the Acquired Contract at the time of acquisition, exclusive of any renewals or extensions, or (b) the date on which FluentStream notifies you that your services have been fully migrated to FluentStream’s platform; provided, that FluentStream may, upon notice to you and in its sole discretion, elect to retain certain terms and conditions of your Acquired Contract in force and effect (“Retained Terms”) after the Transition Period. During the Transition Period, the Acquired Contract will govern your Services; provided that (a) certain terms related to FluentStream’s billing and support processes, and the terms in Section 7 hereof governing prohibited conduct, will apply during the Transition Period; (b) if you order additional Services or Equipment during the Transition Period, this Agreement will apply to such additional Services and Equipment; and (c) if the Acquired Contract is silent on a matter addressed in this Agreement, this Agreement shall control. Following the Transition Period, this Agreement will govern your receipt of the Services, except for any Retained Terms. Without limiting the generality of the foregoing, if your Acquired Contract provides for a fixed term and renewals thereof, then such fixed term and renewals will be Retained Terms and will remain applicable to your Service following the Transition Period; provided that the provisions of this Agreement (including without limitation those concerning termination and termination penalties) shall apply to your Services.
Capitalized terms not otherwise defined in this Agreement will have the meanings attributed to them in this Section. Unless context clearly requires otherwise, the singular of any term includes the plural and vice versa, and terms of any gender include all other genders.
“Customer Premises” means the physical office location or registered agent address of the Customer. This shall not be a mailing address or post office box, nor does it necessarily constitute a registered location for purposes of the E911 Policy. This does not include the location of any remote workers. Customer agrees to immediately notify FluentStream of any changes to this address.
“End User” means any party using or accessing the Services or Equipment under Customer’s account, including without limitation employees, customers and invitees of Customer.
“End Points” means a point through which any End User might access and/or use the Services, including without limitation all Equipment, all softphones, FluentStream’s mobile and web applications, and all devices or VoIP infrastructure on which any softphone or other application is installed or through which the Services may be accessed or used.
“Equipment” means any hardware furnished to Customer by FluentStream in connection with the delivery of Services, including without limitation, telephones (including without limitation desk phones, portable phones and smartphones), routers, analog adapters, and other SIP related devices.
“Force Majeure” means any event, condition or circumstance beyond a Party’s reasonable control, including without limitation acts of God, flood, natural disaster, weather conditions, regulation or governmental acts, fire, civil disturbances, strike, pandemic disease (including without limitation, COVID-19), military action, cyber warfare or acts of terrorism.
“Regulatory Fees” mean (a) any fees imposed by the Federal Communications Commission or other federal, state or local regulatory agency with jurisdiction over the Services, including without limitation, federal and any applicable state Universal Service Funds, and (b) a regulatory cost recovery fee, which FluentStream may (but is not required to) impose in order to offset costs it incurs in complying with obligations imposed by, and inquiries made by, federal, state, and municipal regulatory bodies/governments and related legal and billing expenses.
“Services” means all services provided by FluentStream to the Customer including FluentStream’s platform, websites, data storage, communication software, voice conferencing, video conferencing, reporting, and voice services.
“Taxes” mean all legally required taxes, including without limitation any state or local sales, excise, use and/or other taxes and fees which may be levied upon the Services or Equipment.
- License Grant and Proprietary Rights
2.1 Subject to the terms and conditions of this Agreement, FluentStream hereby grants to you a limited, non-exclusive, personal, non-transferable, and revocable right to access and use the Services during the Term in the manner contemplated by this Agreement solely for your internal business purposes. You shall have no right to sublicense or resell the Service or any component thereof. FluentStream or its service providers, as applicable, retain ownership of all intellectual property and other proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“FluentStream Marks”) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any FluentStream Marks, or other proprietary information (including images, text, page layout, or form) of FluentStream, nor may you use any meta tags or any other “hidden text” utilizing FluentStream Marks, without FluentStream’s prior written consent. You may not post, modify, distribute, or reproduce in any way material subject to copyright, trademark, rights of publicity, or other proprietary or intellectual property rights without first obtaining the express written consent of FluentStream or such other owner of such rights, as applicable.
2.2 Customer hereby grants to FluentStream a royalty-free, non-exclusive license, during the Term, to use Customer’s trade name(s) and logo(s) on FluentStream’s website and in FluentStream’s marketing materials, to identify Customer as a customer of FluentStream and/or the Services.
- Updates and Changes
We may revise, update, or otherwise change this Agreement, and any of the policies and agreements incorporated herein by reference, from time to time in our sole discretion. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. You are expected to check this page periodically so that you are aware of any changes, as they are binding on you. If any revision is unacceptable to you, your only remedy is to terminate your use of the Services. Your continued use of the Services following the posting of the revised Agreement constitutes your acceptance of the modified terms and revised Agreement. If you have provided us with an email address, we may make commercially reasonable efforts to provide you with email notice informing you that this Agreement has changed, but such notice shall be for convenience only and shall not be required for the effectiveness of the changes. If you do not agree to the revised terms of the Agreement, you must immediately stop using the Services and notify FluentStream of your desire to terminate, subject to the terms and conditions of Section 8. Continued use of the Service after the revised Agreement shall be deemed confirmation of your acceptance of the revised terms and agreement to be bound by all such revisions.
- End Users
You are responsible for the activities of all End Users who access or use the Services through your account, and you agree to ensure that any such user will comply with the terms of this Agreement.
- Trial Period; Payment
If you are a party to an Acquired Contract, Sections 5.3 through 5.5 below shall apply to your Services during the Transition Period.
5.1 30-Day Initial Service Period
For new Customers located in the U.S. or Canada, FluentStream offers an introductory period which starts on the earlier of (i) the Service commencement date or (ii) the date of your Customer Service Order, and continues for a period of thirty (30) calendar days (“Initial Period”). Notwithstanding the foregoing, if the Service you ordered is, or may be subject to, Usage Fees (as defined below), you may be required to provide FluentStream with a valid payment method and authorize recurring electronic payments, make a non-refundable deposit and/or to make such other payment arrangements for Usage Fees as FluentStream may require. If you do not wish to continue the Services after the Initial Period, you may terminate the Agreement and, if applicable, receive a refund of any advance payment (other than a non-refundable deposit), less any Usage Fees (as defined below), by providing written notice to FluentStream prior to the expiration of the Initial Period. Usage Fees are not included in the Initial Period and will be billed on the following billing cycle. If your agreement includes any rental hardware products the Initial Introductory Period is not offered. For purposes of this Section 5.1, a new Customer is one who (a) has not ordered or subscribed to any FluentStream Services for at least twenty-four (24) calendar months preceding the date of the Customer Service Order for which Customer claims eligibility for an Initial Period, and (b) is not a party to an Acquired Contract.
5.2 Fixed Fees; Usage Fees
5.2.1 Unless otherwise agreed in a Customer Service Order or Acquired Contract, all fees for Services and Equipment will be billed in U.S. dollars and are subject to change in FluentStream’s sole discretion. Current fees for Services and Equipment will be specified in the Customer Service Order, or, in FluentStream’s discretion, may be posted at www.fluentstream.com from time to time. FluentStream may, but shall not be obligated to, post advance notice of a fee increase on its website.
5.2.2 You shall pay fixed user or subscription fees monthly applicable to your Services and/or Equipment (collectively, the “Subscription Service Fee(s)”) as specified in an applicable Customer Service Order, plus all applicable Taxes and Regulatory Fees, in advance. The Subscription Service Fee for the first month’s Service will be invoiced during that month and payable immediately. The Subscription Service Fee will be prorated at the number of calendar days remaining in the month if Services do not commence on the first calendar day of that month. Thereafter, Customer shall pay the Subscription Service Fee in advance on the first day of each month pursuant to Section 5.3.
5.2.3 In addition to the applicable Subscription Service Fee, you are also responsible for variable charges for the following: (i) calls under any usage-based plan; (ii) international calls, inbound toll-free calls, conference calls, and calls to high rate rural areas; (iii) directory assistance; (iv) call recording; (v) data storage and any other variable or non-recurring charges or fees for services not specifically included in the Subscription Service Fees (the foregoing collectively, “Usage Fees”), and associated Taxes and Regulatory Fees. The Trial Period does not apply to Usage Fees, and you are responsible for all Usage Fees accrued during the Trial Period, which Usage Fees shall not be refunded. Usage Fees for voice Services are computed in full-minute increments, rounded up, based on Customer’s use and other variable factors at the per-minute rate current at the time of the call, and shall be payable monthly in arrears for use incurred prior to a cut-off date selected by FluentStream. Usage Fees for non-voice Services and the method for computing the same shall be specified in the applicable Customer Service Order.
5.3 Payment Processing
5.3.1 Customer shall make all payments here under in U.S. dollars. You must provide a valid email address and electronic payment method to FluentStream for payment processing, and you are required to notify FluentStream immediately if your email address or payment method changes or expires. By providing a valid electronic payment method, Customer authorizes FluentStream to automatically charge such electronic payment method for Subscription Service Fees, Usage Fees, Taxes and Regulatory Fees invoiced to Customer no earlier than the second (2nd) business day following FluentStream’s electronic transmission of the invoice to Customer’s email address on file. Without limiting the generality of the foregoing, if you are a Customer under an Acquired Contract and had provided electronic payment information to your previous provider, your continued use of the Services constitutes your consent to FluentStream charging such payment method. If FluentStream has to process Customer’s paper check for payment, FluentStream may charge a check processing fee equal to fifteen ($15) U.S. dollars, which fee may be placed on the Customer’s next monthly invoice or invoiced separately, in FluentStream’s sole discretion.
5.3.2 We will make commercially reasonable efforts to deliver monthly invoices to you via electronic delivery, and you agree that no paper statements will be mailed to you. Invoiced amounts will include the Subscription Service Fee plus any Usage Fees. All fees, except Usage Fees, are billed in advance. Usage Fees are billed in the month after they are incurred. Customer agrees to pay for all set-up fees and any advance fees required for Equipment upon FluentStream’s acceptance of the Customer Service Order. Invoices for Subscription Service Fees are for your convenience only. You are not relieved of your obligation to pay Subscription Service Fees in the event that you do not receive an electronic invoice, and payment for all fees will be processed automatically in accordance with Section 5.3.1.
5.4 Late Payment; Interest
Payment shall be considered late if not received by FluentStream by the due date on the invoice delivered to Customer. Except as otherwise specified in Section 5.1, all payments, including those paid in advance, are non-refundable. If payment is overdue by ten or more days, FluentStream may suspend or terminate any portion or all of the Services until such amounts are paid in full, and if such late payment continues for 30 days or more, FluentStream may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. The preceding shall in no way limit FluentStream’s other rights and remedies available under this Agreement or at law. In the event that payment is returned due to insufficient funds, Customer shall pay a processing fee for the return of funds. Customer shall reimburse FluentStream for all reasonable costs incurred by FluentStream in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. Your obligation to pay any outstanding balance shall survive the termination or cancellation of Services and the termination or expiration of this Agreement.
The price for Services does not include any custom duties, Taxes or Regulatory Fees. Customer is responsible for all Taxes and Regulatory Fees due on or related to the amounts payable by Customer hereunder, other than any taxes imposed on FluentStream’s income. FluentStream may invoice Taxes to Customer unless Customer provides FluentStream with an appropriate exemption certificate, updated annually.
5.6 Credit Inquiries
You authorize FluentStream to: (a) make inquiries and receive information about Customer’s credit history; (b) store this information in your Customer file; and (c) disclose such information to appropriate third parties for reasonable business purposes. FluentStream reserves the right, in its sole discretion, to refuse to provide Service based upon creditworthiness, or alternatively, to require you to pay a deposit in order to receive Services. Such security deposit will be returned to you, without interest, upon the expiration or termination of Services, provided that all amounts due hereunder to FluentStream have been paid in full. FluentStream shall have the right to use the security deposit, in part or in full, to offset any of your unpaid amounts due to FluentStream hereunder.
5.7 Promotions and Discounts
FluentStream may offer initial discounts for Equipment or Services in its discretion. If you decide to cancel or suspend your Services within the first year of your initial service period, you automatically forfeit all discounts and promotions, and you will be responsible for the Services used at their current rate. Further, if you are provided with free or discounted non-leased Equipment and your Services are canceled or suspended during the first year of service (from the date of your first invoice), you agree to return the free or discounted phone within 5 business days or pay the full retail price for each free or discounted device as of the date of the applicable Customer Service Order. You acknowledge and agree that FluentStream may charge your credit card on file or take other corrective action as FluentStream deems necessary to enforce and ensure compliance with these terms.
- Services; Equipment
(a) Customer shall place a Customer Service Order for Services and/or Equipment, via a customer portal accessible from FluentStream’s website at www.fluentstream.com, or by submission of an executed order form provided or approved by FluentStream. Customer Service Orders will be effective upon Customer’s submission of a signed Customer Service Order unless rejected by FluentStream. FluentStream may reject a Customer Service Order in whole or in part upon notice to Customer, and any Customer Service Order or portion thereof rejected by FluentStream shall be void and of no force or effect. If FluentStream agrees to terms or conditions in a Customer Service Order that are in addition to or differ from the terms and conditions in this Agreement, FluentStream shall explicitly so state in its acceptance of the Customer Service Order or other written communication executed by FluentStream. FluentStream shall be under no obligation to accept any additional or different terms or conditions, and no such terms or conditions in a Customer Service Order shall be effective unless explicitly agreed by FluentStream in accordance with this Section.
(b) If the Services ordered by Customer consist of a system incorporating multiple lines, telephone numbers or “seats,” then Customer will be responsible for directing the configuration of the multiline or multi-seat Service ordered by Customer. Customer’s obligations shall include, without limitation, (a) designating one or more administrators who are authorized to order seats, lines or other modifications to the Service, or to reconfigure Equipment used with the Service; (b) determining the number of lines, seats and or DID numbers required for Customer’s needs, the assignment and re-assignment of lines, seats and/or DID numbers among its End Users, changes in the number, location or other characteristics of lines or seats required; (c) designating a location to receive notification when a 911 call is placed using the Service, as described in the E911 Policy; and (d) the day-to-day operations of the Service. Customer shall provide such information related to the foregoing as is necessary or reasonably requested by FluentStream to install the Services in accordance with Customer’s requirements and to provide the Services.
6.2 System Requirements
Use of the Services requires one or more compatible devices, Internet access, certain software, and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, your ability to access and use the Services may be affected by the performance of any or all of these factors. You acknowledge and agree that you are responsible for ensuring that your systems and equipment meet or exceed the system requirements, which may be changed from time to time.
All Equipment, unless purchased by Customer, shall be the property of FluentStream. Unless otherwise agreed, you will lease Equipment from FluentStream in accordance with the terms of the Equipment Addendum available in the Legal Center at www.fluentstream.com. Upon Customer request, FluentStream may, but shall not be required to, permit Customer to provide its own equipment in lieu of obtaining Equipment from FluentStream. If Customer wishes to use any equipment with the Services other than Equipment provided by FluentStream, Customer shall so request in writing, and shall provide FluentStream with the manufacturer, make and model of all equipment Customer proposes to use, the number of units, whether such equipment is new or used, the technical specifications of such equipment, and such other information as FluentStream may request. FluentStream may approve or reject any or all such equipment in its sole discretion. Notwithstanding any approval by FluentStream, FluentStream shall have no responsibility or liability for the installation, configuration, operation, management or maintenance of such equipment; any incompatibility of such equipment with any Service; or any service errors, service level failures or other Service issues to the extent arising from or related to the use of such equipment. If you are a party to an Acquired Contract, you may continue to use equipment used with your previous provider’s services during the Transition Period; provided, that any equipment to be obtained or installed following the date of FluentStream’s acquisition of your Acquired Contract shall be subject to this Section.
6.3.1 Lease with Buyout Option
FluentStream may, but shall not be required to, permit you to purchase leased Equipment from FluentStream upon request. If FluentStream agrees to sell you the Equipment, the buyout price shall be based on the approximate fair market value determined by FluentStream in its sole discretion and good faith, plus Taxes, shipping, handling and delivery fees. Additionally, if you fail to return the Equipment upon termination of the applicable Customer Service Order, or return the Equipment but not in the condition required by the Equipment Addendum, FluentStream, in its sole discretion and without prejudice to any other remedies available to it under this Agreement, at law or in equity, may deem Customer to have purchased such Equipment, in which event you shall be charged for, and agree to pay upon demand, the purchase of such equipment, in an amount determined by FluentStream, in its discretion, to cover all of FluentStream’s costs in replacing such Equipment, including all Taxes, shipping, handling and delivery fees. Upon payment in full, title to Equipment shall pass to Customer, as-is, where-is, without recourse, representation, or warranty of any kind, express or implied. For the avoidance of doubt, FluentStream is not responsible for purchased Equipment, and FluentStream shall not be responsible for any damage or defects to purchased Equipment.
6.3.2 Third Party Manufacturers
Customer acknowledges and agrees that all Equipment provided by FluentStream is manufactured by third parties. FluentStream will use commercially reasonable efforts to pass through any manufacturer’s warranties on such Equipment but shall otherwise have no obligation or liability with respect to such Equipment. FluentStream shall have no obligation or liability with respect to Customer-provided equipment or to Equipment in use prior to the date of this Agreement.
6.3.3 Shipping Costs
Standard Equipment shipping shall be via FedEx Ground, or UPS, or USPS Priority Mail. Customer is responsible for all applicable shipping, handling and delivery fees related to the purchase and delivery of equipment, including any charges for expedited shipping.
6.4 International, Toll-Free, and Conference Calling
6.4.1 Toll-Free Calls
Toll-free numbers are only able to receive calls from the US and Canada. Incoming calls to toll-free numbers from Canada are initially disabled by default and incur a per minute charge. Please contact a FluentStream representative to enable inbound toll-free calls from Canada. Domestic inbound toll-free calls are billed at a per minute rate as listed in the Customer Service Order. Usage is billed in full-minute increments, and actual usage is rounded up to the next full increment at the end of each call for billing purposes.
6.4.2 International Calls
International calling is initially disabled. Please contact a FluentStream representative to enable international calling, which may require Customer to adopt additional security measures, such as the use of special passcodes. FluentStream will provide Customer with a list of international use rates at the time of international calling setup. Rates for international calls are subject to change, and new rates will become automatically effective. International calls shall be billed based upon the most current set of international rates. Usage is billed in full-minute increments, and actual usage is rounded up to the next full increment at the end of each call for billing purposes. You may contact a FluentStream representative to review an updated international rate sheet at any time.
6.5 Changes in Service
You may change the level of Service or features included on your account. You must submit a change order request in order to change your Services. FluentStream processes new requests to upgrade Service or add additional features within five business days. If you add Services or features to your account without an accompanied change order request, FluentStream reserves the right to increase charges and fees to reflect such change. Services will be pro-rated for the first month of the Term, as determined pursuant to Section 8.1. If the Term of your Service is month-to-month, you may decrease the features or other aspects of your Services; provided, that you may forfeit and be required to repay any initial discounts and promotions based on the level of Service you initially chose. If your Service Order provided for a fixed term, or if you are within the term of an Acquired Contract, you may not decrease the level of Service without FluentStream’s prior written consent, which consent may be conditioned upon the payment of your agreed-upon rates for the remainder of the contract term or other termination fee. FluentStream will make necessary changes to your account rates in the next billing cycle. You may be required to execute an updated Customer Service Order for changes made to existing Services.
6.6 Telephone Numbers and Number Porting
6.6.1 Local and Toll-Free Telephone Number
FluentStream offers both local numbers and toll-free numbers for purchase and will port existing numbers. Customers may choose to purchase custom vanity numbers at an additional cost, subject to number availability.
6.6.2 International Telephone Numbers
In some cases, FluentStream may be able to obtain local inbound calling numbers from other countries. A minimum usage requirement on a minutes-per-number may be required. All international numbers incur a one-time setup fee, a monthly recurring fee, and a monthly rate per minute fee. FluentStream reserves the right to deactivate the allocated phone numbers upon the termination of Service and does not guarantee the right to port out numbers to another service provider. Please contact a FluentStream representative for details regarding number availability and pricing. All pricing is subject to change. Please note that E911 services are not available for international telephone numbers. Please see our E911 Policy for additional details. International numbers may be or become subject to regulatory requirements of foreign jurisdictions, including with respect to rates, and such requirements may change without notice. FluentStream shall not be liable for any changes to the availability, terms or rates of or for international numbers.
6.6.3 Number Porting
FluentStream will use commercially reasonable efforts to facilitate number transfers or port requests submitted by Customer, in accordance with applicable law. Customer shall comply with the necessary and specific procedures for porting between service providers described herein, as the same may be modified from time to time due to applicable law or the requirements of third-party carriers. You acknowledge and accept that number porting depends on the co-operation of third parties outside of FluentStream’s control, including but not limited to FluentStream’s suppliers. Accordingly, you agree that FluentStream 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.
184.108.40.206 Number Portability
FluentStream may require a completed and signed Letter of Authorization (“LOA”) for any local or toll-free numbers the Customer wishes to port. FluentStream also requires a recent, applicable copy of the Customer’s phone bill which contains the Customer’s Billing Telephone Number (“BTN”) as well as a record of any other numbers that need to be ported. In some cases, a telephone number is not portable, in which case FluentStream will provide the Customer with a unique telephone number. FluentStream will comply with applicable state and federal laws regarding number portability.
220.127.116.11 Number Port-In Procedures
In order to request the porting of a telephone or facsimile number into an account, an administrator for your account must complete all steps and provide all information requested as part of the number port-in request process (which may include without limitation providing an executed Letter of Agency) or as otherwise requested by FluentStream.
18.104.22.168 Number Port-Out Process
In order to request the porting out to another services provider of a telephone or facsimile number currently assigned to an account, you must follow the instructions specified by that services provider and must provide all information and cooperation requested by the relevant other services providers, FluentStream, or any other relevant third party. You acknowledge and agree that: (i) the porting of telephone or facsimile numbers into or out of an account requires your provision of specific and detailed information to FluentStream and/or third parties (including without limitation other services providers) and completion of certain steps and procedures, as well as third parties’ completion of certain steps; and (ii) numbers may not be ported into or out of an account unless and until you are able to provide certain specific information that matches other information on record with FluentStream or other services providers. For these and other reasons, the completion of any number port request and the timing of and date by which any such request may be completed depend on a number of factors outside of FluentStream’s control, including without limitation the acts and omissions of both you and third parties, including without limitation other services providers. Customer acknowledges FluentStream may use additional security measures to protect Customer’s phone numbers, and Customer agrees to cooperate with FluentStream’s number porting processes and procedures.
22.214.171.124 Unauthorized Port Outs
You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or an account due to acts or omissions of third parties, and it may be difficult or impossible for FluentStream to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of an account; or (iii) port such numbers back into an account. To the fullest extent permitted by applicable law, FluentStream disclaims all responsibility or liability due to such port-outs.
126.96.36.199 Accurate Porting Information
You agree, represent and warrant that all information or representations provided in connection with any request to port in or port out numbers (including without limitation any information or representations in any Letter of Agency) by you, any user or End User, or any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing shall be true, accurate, and up-to-date.
188.8.131.52 Customer Compliance with Porting Laws
You acknowledge and agree that the porting of numbers is subject to telecommunications and other Laws and may be subject to third party terms and conditions. You agree, represent, and warrant that neither You; nor any user or End User; nor any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing will at any time: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct in its porting-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephony service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.
184.108.40.206 Release of Numbers
You acknowledge that in the event of account termination or cancellation, all telephone numbers associated with your account, which have not previously been ported to another provider, may be released. Similarly, the cancellation of individual lines may result in the release of the related numbers if those numbers have not previously been ported to another provider. You acknowledge that you are solely responsible for working with a third-party provider to port out any numbers prior to termination or cancellation of your account or Services, or any individual line.
220.127.116.11 Number Port Fee
A one-time fee may be charged per number ported over to our Service from an existing service provider.
18.104.22.168 Number Disconnect Fee
At any time, Customer may elect to remove a telephone number from their account. A one-time disconnect fee may be charged for each telephone number removed.
6.7 Music on Hold
FluentStream features include the ability for Customer to upload recordings to be played while a caller is on hold. Customer shall be solely responsible for obtaining all rights and clearances for, and shall assume all liability for, music or other content contained in on-hold recordings uploaded to FluentStream and performed or otherwise used in connection therewith. To the extent required, Customer hereby grants to FluentStream, for the Term of this Agreement, a royalty-free license or sublicense to perform all music or other content contained in Customer’s on-hold recordings, and Customer represents and warrants to FluentStream that Customer has all right and authority to grant such license or sublicense, as the case may be. Customer agrees to conduct its business and use of the Services in full compliance with all intellectual property laws. Customer shall indemnify FluentStream for all third-party claims arising from or in connection with on-hold recordings, including claims of infringement or violation of a third-party’s intellectual property and other rights.
6.8 Ancillary Services
CallerID services are provided by FluentStream subject to availability from FluentStream’s third-party service providers. FluentStream does not guarantee that such services are available for all numbers in all Service areas. Customer shall be responsible for purging stored voicemail messages and call recordings. FluentStream reserves the right to charge you for data storage related to such voicemail messages, call recording and other communication data stored by client. FluentStream shall not be liable or responsible for any loss of voicemail messages, call recordings or call detail records.
6.9 Customer Support
FluentStream will use commercially reasonable efforts to provide basic technical support service to Customers 24/7/365 depending on the level of Service purchased. FluentStream is not obligated to provide support services for third-party products or services, or for problems with our Service due to third-party products or services. On-site Services are not included in standard client support and may be subject to an additional charge at FluentStream’s discretion. You must be an authorized individual on the applicable FluentStream account in order to contact FluentStream client support.
6.10 Service Exclusions
The Service does not include directory listings and operator and directory assistance and does not support 976 or 900 calls. The Service may not support 311, 411, 511, or other X11 calling (other than 911 as detailed in the E911 Acknowledgment Policy, and 711) in all or certain service areas.
- Service Use Restrictions and Obligations
7.1 Prohibited Uses Generally
You accept that the Services are provided for professional use only. You shall not use the Service or FluentStream’s website, directly or indirectly:
7.1.1 For any unlawful or illegal purposes including, but not limited to, using any Services to violate any law, rule regulation, governmental orders, industry standards or guidance in any applicable jurisdiction.
7.1.2 For transmission or storage of any information, data, or material in violation of any applicable federal, state or local regulation or law, or in any way that violates laws, infringes the rights of others (including intellectual property rights), or interferes with the users, services, or equipment of the Service.
7.1.3 To post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation.
7.1.4 To transmit, disseminate, store, publish, or engage in threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, racist, vulgar, obscene, pornographic or otherwise objectionable material of any kind.
7.1.5 To knowingly disrupt the Service or otherwise introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
7.1.6 To resell the Service or otherwise charge others to use the Service; the Service is for internal use only, and you agree not to use the Service for any other business enterprise in competition with the Service.
7.1.7 To do any other action that causes disruption in the network operations or integrity of FluentStream or its vendors, whether directly or indirectly; such use is strictly prohibited and may result in termination of the Service. Examples of such prohibited uses include, but are not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, or any other activity that would be inconsistent with normal business usage.
7.1.8 For sending unsolicited marketing messages or broadcasts (i.e. spam).
7.1.9 For sending any calls to life-line services, such as hospitals, fire, police, 911 or utility-related telephone numbers which are not related to obtaining emergency or utility services.
7.1.10 By using unlawful strings of numbers.
7.1.11 For harvesting or otherwise collecting information about others without their consent.
7.1.12 In any manner that will or may mislead others as to the identity of the sender of your messages or broadcasts or the location from which such messages originate, including without limiting the generality of the foregoing, by creating a false identity, impersonating the identity of an individual or entity, by “spoofing” any telephone number, or by providing contact details that do not belong to you.
7.1.13 For transmitting any material that may infringe upon the intellectual property rights or other rights of third parties including trademarks, copyrights, or publicity rights.
7.1.14 In a manner interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks.
7.1.15 Attempting to gain unauthorized access to the Services, other accounts, computer systems, servers, or networks connected to the Services, through password mining or any other means.
7.1.16 Interfering with another’s use and enjoyment of the Services or the FluentStream website.
7.1.17 To record any person or conversation except as permitted by, and in strict accordance with, applicable law.
7.1.18 Engaging in any other activity that FluentStream believes could subject it to criminal liability or civil penalty or judgment.
7.1.19 Purposely routing calls to high cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the FluentStream system, except for calls originated by or terminated to bona fide users physically located in such areas. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. You may be responsible for Usage Fees or fines assessed to recover charges related to excessive routing of high-cost calls.
7.1.20 Calling, messaging, storing, posting or transmitting harmful, unsolicited, inappropriate, objectionable, threatening or abusive materials, e-mail or information.
7.1.21 Falsifying or providing misleading information including but not limited to User information, User customer information, intent for use of Services, or other identifying information provided to FluentStream or to other users of the Services.
7.1.22 Engaging in repetitive and/or continuous messaging or calling if such activity could reasonably be expected to or in fact does provoke complaints, including but not limited to calls or messages that are initiated through automated means.
7.1.23 Engaging in abnormal messaging or calling where activity is: (i) significantly in excess of Customer’s expected traffic volumes, (ii) inconsistent with Customer’s stated or published business description or intention for use of Services, or (iii) inconsistent with normal business use, particularly if such activity could reasonably be expected to or in fact does provoke complaints.
7.1.24 Enabling the transmission of calls or messages without the requisite consent of the recipient where legally required and/or failing to support opt-out requests to stop further calls or messages where legally required.
7.1.25 Engaging in long duration calls (defined as calls to the same number in excess of four continuous or cumulative hours within a 24-hour period) and/or calls placed to specific numbers / destinations for the purpose of generating charges or fees for or with a third party.
7.1.26 Neither Customer nor its End Users may engage, directly or indirectly, in any activities that, in FluentStream’s sole discretion, harm or interfere with: (i) FluentStream’s network, (ii) the integrity or efficacy of the Services, or (iii) the use of the network and the Services by FluentStream’s other customers or users. The foregoing also includes attempts to bypass or exploit Service limitations or restrictions.
7.2 Review of Plan Use and Unlimited Voice Services
You acknowledge that: (a) any reference made to “unlimited” minutes or features refers to our practice not to charge for the Services on a per-minute or per-use basis when use is reasonable; and (b) that we do not offer “unlimited” plans for telemarketing, call center operations, fax spamming, or other activities that use an extraordinary amount of connectivity to the Public Switched Telephone Network (PSTN). We may limit PSTN connectivity, impose per-minute charges for excessive use, or terminate this agreement if we determine that your average per-user PSTN connectivity exceeds the normal usage patterns, as determined by FluentStream in its sole discretion. FluentStream reserves the right to review usage of unlimited plans to ensure that Customer is using the Services in accordance with this Agreement, and not using unlimited Services in violation of any provision hereof or for any purpose other than permitted under this Agreement and the applicable plan. In addition to other uses prohibited by this Section 7, unlimited voice services may not be used for monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of uninterrupted interactive dialog between parties. If FluentStream finds that you are using unlimited voice services for any purposes other than uninterrupted dialog between parties, FluentStream may, in its sole and absolute discretion, terminate Customer’s Service or change Customer’s plan to one with no unlimited usage components. FluentStream will provide notice to Customer prior to taking such action, and Customer may terminate the Agreement, provided, however, that Customer shall not be entitled to a refund of any kind.
7.3 Legal Compliance
You agree to use the Service in a manner that complies with all applicable federal and state laws, including, but not limited to laws governing the use of call recording, call monitoring, call barging, and telemarketing. FluentStream does not dispense legal advice or provide Customer with any information regarding the legality of using the Service. You may be subject to civil or criminal prosecution for the unlawful use of Service. Customer shall indemnify and hold harmless FluentStream from and against any claims that arise out of Customer’s failure to comply with applicable state and federal laws. Customer shall consult its own attorney for legal advice.
7.4 Message Blaster
Your use of the Services for your marketing activities shall comply with all applicable laws, and with this Section 7.4.
7.4.1 You represent and warrant that the owners of the phone numbers you initiate messages to through the FluentStream Services have consented or otherwise opted-in to the receipt of such messages and broadcasts as required by applicable laws. You agree to include clear opt-out/unsubscribe information on your messages or broadcasts when required to do so by any applicable law or regulation, including without limitation the Telephone Consumer Protection Act, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), and the regulations of the FCC promulgated thereunder from time to time; and shall otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if and as applicable. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list, and you agree that you will not initiate any subsequent messages or broadcasts to any individuals after they request DNC status.
7.4.2 You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations, including without limiting the foregoing, the legalities of any messages, calls, broadcasts, and campaigns transmitted through the FluentStream Services. You are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts that you create and initiate through the FluentStream Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, for inclusion in any outbound messages, broadcasts, and campaigns. If you are unfamiliar or unclear on the legalities of any message, broadcast or campaign, you must consult with your attorney prior to your use of the FluentStream website or Services.
7.4.3 You further agree that FluentStream is, under no circumstances, responsible for the contents or accuracy of your messages or broadcasts. You will provide your own sound files for all outbound campaigns. FluentStream will not review such messages and broadcasts prior to submission. FluentStream is not responsible for, and does not endorse or approve of, the views and opinions contained in any of your messages or broadcasts. FluentStream shall not be liable for your misuse of the Services.
7.5 Customer Security Policy
7.5.1 Password Information Security. You agree that you are responsible for any and all passwords, PINs, IVR PIN codes, security questions or answers, and other access-related credentials related to your Services or an account (“Password Information”) that you or any End User use with the Services. You further agree to ensure that all such Password Information: (i) shall be immediately changed in the event that you or your End Users learn of or suspect that any account security Incident has occurred; (ii) shall not be not transmitted or stored in any insecure manner (including without limitation through any auto-storage, caching, “remember,” or auto-fill feature); and (iii) shall be protected from theft or unauthorized access, use, or disclosure with at least a reasonable degree of care and diligence.
7.5.2 End Point Security. You agree to protect all End Points using, at minimum, generally accepted security measures, including without limitation: (i) effective passwords or other credentials; (ii) network segmentation and access restrictions utilizing an accurate and up-to-date access control list; (iii) session time-out and/or locking screen saver features; and (iv) use of an effective and up-to-date firewall for all networks to or through which any End Point might connect. YOU ACKNOWLEDGE AND AGREE THAT THESE REQUIREMENTS APPLY TO IP DESK PHONES AND MOBILE DEVICES, WHICH UTILIZE THE SAME CONNECTIVITY – AND ARE SUBJECT TO THE SAME SECURITY RISKS – AS COMPUTERS.
7.5.3 Update of Security Features. You acknowledge that some Services’ security features may require activation or installation of software or firmware updates, and software may be de-activated or uninstalled. You agree to promptly download and install all updates to software and/or hardware or firmware provided by FluentStream or your Equipment manufacturer and used in conjunction with the Services, and generally to ensure the activation and use of all features that are necessary or appropriate to protect the accounts, users, End Users, or your organization’s assets and operations. You acknowledge and agree that if you decide not to install updates, this may result in the functionality of the Services to be diminished and unstable or termination of this Agreement.
7.5.4 Account and End User Management. You acknowledge and agree that End Users you designate as account administrators may have the ability to make purchases and enter into transactions on your behalf and/or to perform acts related to your Services, or your Account, including any individual line or extension or ancillary services, that may significantly affect you or the operation of your Services, including without limitation adding, removing, or modifying numbers or extensions assigned to an Account; payment method(s); making changes to software or hardware; adding, removing, or modifying ancillary services; and/or modifying settings. You are responsible for any such changes made to your account. You agree to maintain sole and exclusive control over your Services or account at all times and to ensure that all account rights, permissions, and settings, and all use and usage, are effectively managed as necessary to prevent any unauthorized access to, use or usage of, or transaction or activity through or relating to your Services. You further acknowledge and agree that you will be responsible for all charges incurred by or under the credentials of your Account administrators.
7.6 For calls originated by Customer or any of its End Users, or by devices or numbers assigned to Customer or its End Users, or for calls that transit any network facilities owned, controlled or utilized by Customer for termination on or through FluentStream’s Services, Customer agrees that if it receives a request from (i) a traceback administrator authorized by the USTelecom Industry Traceback Group (ITG), (ii) FluentStream, or (iii) any applicable law enforcement or regulatory authority (a “Traceback Requestor”) for information about robocalls that have been sent to a downstream provider or received by a consumer (a “Traceback Request”), Customer will promptly respond to the Traceback Request in good faith. Without limiting the generality of the foregoing, Customer shall identify the immediately preceding source of the calls or numbers subject to the Traceback Request, if any, and provide other relevant information relevant to the determination of any immediately preceding source, and, to the extent possible, shall further identify any other upstream providers in the call’s path. Customer agrees to share this information without requiring a subpoena or other formal demand or request.
7.8 FluentStream reserves the right to take any and all actions in FluentStream’s sole discretion, whether at law or in equity, in response to violations of this section or as otherwise believed by FluentStream, in its sole discretion, to be required to preserve the integrity of FluentStream’s network and its Services, including, without limitation: (i) suspension or termination of the Services, including charging Customer any applicable rates and cancellation or termination fees, (ii) cooperation with law enforcement, (iii) providing requested information to third parties who have informed FluentStream that they have been harmed by a Customer’s failure to abide by this Policy, and (iv) referral of violations of this Section 7 to appropriate law enforcement agencies or other appropriate governmental authorities. FluentStream’s failure to take action shall not be deemed a waiver of this right. FluentStream’s exercise of its rights under this section shall not create a cause of action in any Customer or End User, nor shall FluentStream have any liability for its actions or the actions of other carriers or service providers taken to protect their respective networks or compliance with applicable law. Without limiting the generality of the foregoing, FluentStream shall have no liability to Customer for the level of attestation assigned by FluentStream pursuant to the TRACED Act and FCC implementing rules to calls to or from Customer, nor shall FluentStream be liable for the refusal of any other carrier or service provider to validate, transmit or terminate any call based on such carrier’s or service provider’s assessment of such calls or the attestation level assigned thereto.
If you have an Acquired Contract, your term of service under the Acquired Contract at the time of acquisition will continue as provided in the fourth introductory paragraph above. Thereafter, unless otherwise agreed by FluentStream in writing, the Term of your Agreement will continue in accordance with subsection 8.2.
8.1 The “Term” of this Agreement begins on the earlier date of: (a) when your signed Customer Service Order is submitted, unless FluentStream rejects such Customer Service Order in accordance with Section 6.1 of this Agreement; (b) when your first payment is processed, or (c) when you start(ed) using the Services. The Term shall continue for the greater of: (i) the period of time set forth in your Customer Service Order; (ii) for the period of time otherwise mutually agreed upon in writing by you and FluentStream; (iii) if not otherwise specified or agreed to, month-to-month, indefinitely, until terminated; or (iv) for as long as you access and use the Services, notwithstanding an otherwise specified expiration or termination date.
8.2 If a Customer Service Order, or any related agreement including an Acquired Contract or FluentStream partner agreement, has a stated Term other than month-to-month, the Term of Customer’s Service shall automatically renew for a period equal to the initial term at the end of each term, unless either party provides written notice of cancellation to the other no less than 30 days prior to the end of the then-current Term. Agreements with a month-to-month Term may be cancelled at any time by either party, upon thirty days’ prior written notice to the other.
- Cancellation of Services; Termination
If you are a party to an Acquired Contract, the termination provisions of your Acquired Contract will control during the Transition Period, except that violations of Section 7 above will be governed by this Section, and reductions in Services will be governed by Section 9.2.
9.1 Termination by FluentStream
FluentStream may terminate or suspend this Agreement immediately if FluentStream determines, in its sole discretion, that you have violated any provision of Section 7, or may terminate this Agreement upon ten (10) days’ prior written notice if you violate any other terms of this Agreement and fail to cure the violation within such ten (10) days. FluentStream may also terminate this Agreement for any other reason whatsoever by providing you with 30 days’ prior written notice of such termination. Subscription Service Fees and Usage Fees will continue to accrue through the termination date.
9.2 Termination by Customer
You may terminate this Agreement or terminate or reduce any Services: (a) pursuant to the terms specified in this Agreement or as otherwise mutually agreed to in writing by the parties hereto; or (b) if neither the Customer Service Order nor any other written instrument executed by FluentStream specifies a procedure for termination, by providing FluentStream 30 days’ prior written notice. Customer must provide notice by submitting a cancellation form located at https://www.fluentstream.com/cancellation-of-service/. If Customer wishes to cancel a previously submitted termination notice, the 30-day notice period must be adhered to with any subsequent termination notices. In the event that Customer terminates this Agreement or cancels a Service that is subject to a defined Term other than month-to-month, or reduces the volume of any such Service (including without limitation by reducing the number of activated devices or telephone numbers) agreed in a Customer Service Order or Acquired Contract, then Customer will be subject to termination fees as outlined in the Customer Service Order or Acquired Contract, which shall not be less than the monthly recurring charges (or the difference in monthly recurring charges, in the event of a Service reduction) for all affected Services and related Equipment prior to such termination or reduction, multiplied by the number of months remaining in the then-current Term. Customer shall also be responsible for returning any Equipment, including Equipment no longer used due to a reduction in Services, in accordance with the Equipment Addendum.
9.3 No Refund
Upon termination of this Agreement for any reason, or any reduction of Services pursuant to Section 9.2, Customer shall not be entitled to a refund of any prepaid or other fees. Customer is responsible for all charges through the effective termination date, including the notice period and, without limitation, any unbilled charges such as usage.
Upon termination of this Agreement, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, (i) your representations and warranties, indemnification obligations, and use restrictions; and (ii) FluentStream’s limitation of liability, disclaimer of warranties, indemnification obligations, and intellectual property rights.
9.5 Customer Obligations Upon Termination
Customer agrees that upon Termination of this Agreement:
9.5.1 You shall be responsible for payment in full for Services through the end of the month of the effective date of termination. You shall pay FluentStream any amounts owed for Services prior to termination within three (3) business days of FluentStream’s final invoice, and you agree that FluentStream may charge your payment method on file at the end of such three-day period. Subscription Service Fees will not be prorated.
9.5.2 If applicable, you must immediately notify FluentStream of all Customer Premises and other premises where FluentStream Equipment and materials are stored. You shall permit FluentStream, its employees, agents, contractors, or representatives to access your Customer Premises and other premises during regular business hours in order to remove all Equipment and other materials furnished by FluentStream, or upon FluentStream’s request and in its discretion, you agree to return all Equipment and materials furnished by FluentStream to a location specified by FluentStream using a reliable shipping method. You shall be responsible for all FluentStream Equipment and materials that are not received by FluentStream within a reasonable period of time post-termination, and FluentStream may deem you to have purchased the same and charge you in accordance with the Equipment Addendum and this Agreement.
9.5.3 You are solely responsible for notifying FluentStream of any and all requests to port out billable telephone numbers (also referred as “DIDs”) to a different service provider, whether port out options are known or unknown by you. You remain solely responsible for all billable charges until such time that port outs have been completed. You shall retain ownership of any purchased local or toll-free numbers and any existing numbers that were originally ported over to FluentStream from a different service provider.
- Service Level Agreement
If you are a party to an Acquired Contract, the terms described in this Section will replace your prior service terms after the Transition Period:
10.1 Service Guarantee
FluentStream guarantees that our Services will be available for its primary intended use 99.99% of the time in any given monthly billing period, excluding certain Exceptions as defined below. This guarantee shall include the ability to make and receive calls only and excludes the functioning of any other ancillary features offered by FluentStream. If FluentStream fails to meet this service level guarantee, Customer shall be eligible for a credit. Credits will be calculated as a percentage of the fees incurred over the billing period affected by the service outage and will be applied at the end of the billing cycle. Credits shall be calculated at three percent (3%) of the monthly Subscription Service Fee for the affected Service each hour of downtime, up to 100% of the total fees for the affected Service billed in the affected billing period. To obtain a credit, Customer must request a credit in writing from FluentStream within fifteen (15) days of the service outage. Credits shall be applied against future fees payable by Customer for the Service (the foregoing provisions of this Section 10.1, collectively, the “Service Guarantee”). This Service Guarantee is your sole and exclusive remedy for downtime in Services. For the purposes of the Service Guarantee, the following “Exceptions” are not eligible for service credits: (a) any act or omission by Customer or any End User; (b) issues with Customer’s or its End User’s Internet connectivity; (c) a Force Majeure event; (d) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, server, or similar equipment and programming not supplied by FluentStream; (e) Scheduled Maintenance as outlined in Section 10.2; (f) issues, bugs, or delays caused by third-party applications, services, or other components; (g) the disabling, suspension, or termination of the Services by FluentStream in response to Customer’s failure to comply with this Agreement; and (h) third-party interference with or attacks upon the Services or the networks used to provide them.
10.2 Maintenance and Other Planned Service Outages
FluentStream will periodically perform routine system maintenance and/or system updates to ensure we are running the most reliable and secure software possible (“Scheduled Maintenance”). During periods of Scheduled Maintenance, it will be necessary to take the Service offline. FluentStream will return services as quickly as possible and typical Scheduled Maintenance is completed within 15 minutes. FluentStream will endeavor to perform Scheduled Maintenance after normal business hours (generally, 10PM EST – 5AM EST). FluentStream will use commercially reasonable efforts to notify Customer one or two days in advance of performing Scheduled Maintenance, so you can prepare for the planned service outage.
10.3 Service Level and Support Limitation of Liability
FluentStream shall not be liable or held responsible for any disruption in Service due to (i) Internet connectivity issues with Customer’s Internet Service Provider (ISP); (ii) disruption in Service related to Customer’s error, misuse, or failure to comply with this Agreement; (iii) outage due to a previous service provider’s failure to properly port over number(s) to FluentStream; (iv) power outage; or (v) a Force Majeure event. FluentStream may provide implementation, configuration, or similar Services support, either remotely or on-premise. Use of such Services by Customer is at Customer’s sole option and risk. FluentStream shall not be liable to Customer for any damages, loss, or liability arising out of or in connection with FluentStream’s implementation; configuration; firewall, router, or device configuration and setup; or similar implementation and Services support.
- Personal Information, Privacy Statement and Data
If you are a party to an Acquired Contract, the terms described in this Section will replace your prior service terms after the Transition Period:
11.2 Customer Proprietary Network Information
11.2.1 In the normal course of providing services to its users and customers, FluentStream collects and maintains certain customer proprietary network information (“CPNI”) typical to the industry. CPNI includes the types of telecommunications and interconnected VoIP services Customer currently purchases or subscribes to, how Customer uses those services (for example, Customer’s calling records), and billing information related to those services. Customer’s FluentStream telephone number(s), name, and address do not constitute CPNI.
11.2.2 FluentStream does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of FluentStream and those parties authorized to represent FluentStream to offer the Services or to perform functions on FluentStream’s behalf related to the Services, except as the law may require or Customer may authorize. Federal law generally permits FluentStream to use CPNI in its provision of the Services Customer purchases or subscribes to, including billing and collections for those Services. FluentStream may also use or disclose Customer CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect FluentStream’s rights or property, to protect against the unlawful use of FluentStream’s services, or to protect other users. Customer acknowledges and agrees to such uses for itself and its End Users. In the event that FluentStream consents to the Customer’s resale of any Services, Customer shall ensure that it informs its customers or subscribers of FluentStream’s use and disclosure of CPNI in accordance with this Section.
11.2.3 Customer may elect to prohibit FluentStream’s use of Customer’s CPNI to market services other than services of the same type that Customer already purchases from FluentStream by providing FluentStream with Customer’s “opt-out” notice within thirty (30) calendar days of Customer’s Service commencement via firstname.lastname@example.org. If Customer fails to do so within such timeframe, Customer will be deemed to have given FluentStream consent to use Customer’s CPNI to market services other than services of the same type that Customer already purchases from FluentStream. Customer acknowledges and agrees that such communications may be directed to one or more Customer End Users, and Customer agrees that it will provide its End Users with notice that they may receive such marketing communications and instructions as to how to opt out. Restricting FluentStream’s use of Customer CPNI will not affect FluentStream’s provision of any Service, nor will it necessarily eliminate all types of FluentStream marketing. In the event that FluentStream consents (in its sole and absolute discretion) to Customer’s resale of the Services, Customer shall provide notice to its customers or subscribers that Customer will disclose or otherwise permit FluentStream to access such customers’ or subscribers’ CPNI for the provision of the purpose of marketing communications-related services; provide a method for such customers or subscribers to opt out; and provide FluentStream with current information concerning the “opt out” status of such customers or subscribers.
11.3 Other Disclosures of Information
Customer agrees that information concerning it, its End Users, locations, assigned telephone numbers and other identifying information, which may or may not constitute CPNI, may be disclosed to public safety answering points or other emergency call takers in connection with the completion of 911 calls, or to law enforcement or other governmental authorities as required by applicable law, regulation, court or administrative order, subpoena, warrant or other legal process. FluentStream shall have no liability to Customer, any End User or any other party using the Services under Customer’s Account for any such disclosure.
11.4.1 You acknowledge and agree that: (i) FluentStream and its affiliates shall have no obligation to store, retain, back-up, or ensure the availability of any stored Customer personal or account information; (ii) to the extent that you wish to retain any account data or other information relating to your services, an account, or the use thereof, you shall ensure that such information is downloaded, saved, and/or backed-up outside of your Account, as necessary or appropriate for your and/or the End Users’ purposes; (iii) you shall not rely on your Services or account as a repository for or means by which to retain, store, or back-up account data or any other data, information, or materials; (iv) FluentStream may delete or purge any and all copies and versions of any stored Customer personal or account data or other data at any time, without notice, including without limitation after you delete any such information from an account or after termination of this Agreement or closure of an account; and (v) FluentStream may, in its sole discretion and option and without notice, implement reasonable limits as to the size or duration of storage of account data, including, but not limited to, call recordings, voicemail and call or communication detail records.
11.4.2 You acknowledge and agree that the your Services do not include the performance of any of the following tasks or work by FluentStream, and in no event shall FluentStream be obligated under this Agreement to perform any of the following tasks or work: (i) the investigation, access, correction, alteration, gathering, compilation, review, verification, or production of any account data, personal information, or any other records, documents, information, or evidence related to you or your Services or transmitted, received, or stored through an account; (ii) the provision of legal or other advice; or (iii) the provision of assistance, cooperation, or information beyond that which is directly and specifically related to FluentStream’s fulfillment of its obligations under this Agreement or pursuant to applicable Law. Without limiting the foregoing, except as provided in this Agreement or required by Law, FluentStream is not obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or legal process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.
11.4.3 You acknowledge and agree that: (i) any stored communications, stored personal information or account data, or other information or materials that you export will not be under FluentStream’s control and will not be subject to or protected by FluentStream’s security controls; (ii) linking or integrating your Services or accounts(s) to or with any external service, environment, account or repository constitutes such exportation and FluentStream shall have no responsibility for, and makes no representation or warranty regarding, the security, privacy, or functionality of any such linked or integrated external service, environment, account or repository. You and your End Users, as applicable, shall comply with all applicable Law relating to the use, disclosure, access, or export of data from your account(s).
11.5 You hereby release, discharge, and hold harmless FluentStream from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section 11 to the fullest extent permitted under applicable law.
- Emergency 911 Services
Access to 911 services is governed by the E911 Policy available in the “Legal Center” accessible at www.fluentstream.com, as the same may be amended from time to time, which is incorporated by reference herein and made a part hereof. The E911 Policy contains important information regarding limitations on 911 service using the Services, and limits FluentStream’s liability to you.
You agree to indemnify, defend, and hold harmless FluentStream, its affiliates, officers, directors, employees, consultants, agents, and service providers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from or related to: (a) your use of the Services; (b) your breach or other violation of this Agreement; (c) any actual or alleged infringement or violation by you, or any other user of your account, of any intellectual property or other right of any person or entity; (d) your actual or alleged violation of applicable law; and (e) all unauthorized use of, access to or theft of Customer’s or its users’ data, passwords or equipment, or of any data provided to Customer by third parties, except to the extent caused by the gross negligence or willful misconduct of FluentStream.
- Warranty Disclaimer and General Limitation of Liability
14.1 NO WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN, YOU UNDERSTAND AND AGREE THAT THE SERVICES AND EQUIPMENT ARE PROVIDED “AS IS” AND FLUENTSTREAM, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, AGENTS, EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, “FLUENTSTREAM PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FLUENTSTREAM PARTIES MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL OR DATA TRANSMITTED, DOWNLOADED, OR OTHERWISE SENT OR OBTAINED THROUGH THE USE OF THE SERVICES, IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY INCURRED OR DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES OR ANY OTHER MATERIALS OR WORK PERFORMED OR PROVIDED BY FLUENTSTREAM IN CONNECTION THEREWITH. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES OR ANY OTHER MATERIALS OR WORK PERFORMED OR PROVIDED BY FLUENTSTREAM IN CONNECTION THEREWITH REMAINS WITH YOU. FLUENTSTREAM DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION, DATA, COMMUNICATIONS, OR OTHER CONTENT SHARED BETWEEN USERS, AND EXCEPT AS REQUIRED BY APPLICABLE LAW, FLUENTSTREAM MAKES NO REPRESENTATION OR WARRANTY REGARDING, OR ASSUME ANY RESPONSIBILITY FOR, THE SECURITY OF SUCH INFORMATION, DATA, COMMUNICATIONS OR OTHER CONTENT. FLUENTSTREAM CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES.
14.2 LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE FLUENTSTREAM PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, ANY OTHER MATERIALS OR WORK PERFORMED OR PROVIDED BY FLUENTSTREAM IN CONNECTION THEREWITH, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF THE FLUENTSTREAM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FLUENTSTREAM PARTIES’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE MONTH OF THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
- Additional Provisions
15.1 Governing Law
This Agreement, all matters related to the Services, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, this Agreement or the Services shall be subject to arbitration in accordance with Section 15.2 hereof. Any proceeding which may be instituted in a court of competent jurisdiction, including proceedings pursuant to Section 15.3 or suits to enforce the arbitrator’s award, shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the City of Denver and County of Denver, although FluentStream retains the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by the federal and state courts in and for Denver, Colorado, and to venue in such courts.
Subject to Section 15.3, all disputes arising out of or relating to this Agreement, including without limitation those regarding the formation, interpretation, breach or termination hereof, or any issue regarding whether a dispute is subject to arbitration hereunder, that cannot be settled by good faith negotiation between the parties within a reasonable period of time, will be conclusively determined by a final and binding arbitration proceeding to take place in Denver, Colorado. Such proceeding will be conducted in English and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect, or in the event one of the parties is located outside of the United States, pursuant to the JAMS International Arbitration Rules then in effect, before a panel of one arbitrator chosen in accordance with such rules. The arbitrator will not award punitive or exemplary damages, and will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The ruling by the arbitrator may be entered in any court having jurisdiction over the parties or any of their assets. The parties will evenly split the cost of the arbitrator’s fees, but each party will bear their own attorneys’ fees and other costs associated with the arbitration except as provided in Section 15.4 hereof. The parties agree that this arbitration provision may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order. The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of arbitration in confidence.
15.3 Injunctive Relief
Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions, from any court of competent jurisdiction in order to protect its rights pending arbitration.
15.4 Costs of Enforcement
In the event that either party hereto brings an action with respect to any dispute arising hereunder, any alleged breach of the terms hereof, or the enforcement of the provisions and restrictions thereof, the substantially prevailing party in such action shall be awarded all reasonable costs and expenses incurred thereby, including reasonable attorneys’ and other legal fees and costs, whether prior to the formal initiation of such action, prior to trial, at trial, or on appeal and for post-judgment proceedings.
15.5 Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM, INCLUDING ANY CLAIM OR DISPUTE SUBJECT TO ARBITRATION HEREUNDER, THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION, CLAIM OR DISPUTE ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
All notices and other communications pursuant to this Agreement shall be in writing and shall be deemed given if delivered personally, sent by facsimile or email transmission, sent by nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the FluentStream’s address set forth below, to Customer at Customer’s address as set forth in the Customer Service Order, or to such other address as a party to whom notice is to be given may have furnished to the other party hereto in writing in accordance herewith. Any such notice or communication shall be deemed to have been delivered and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of facsimile or email transmission, on the date sent if either (i) confirmation of receipt is received or (ii) such notice is promptly mailed by registered or certified mail (return receipt requested), (c) in the case of a nationally-recognized overnight courier in circumstances under which such courier guarantees next business day delivery, on the next business day after the date sent, and (d) in the case of mailing, on the third business day following that on which the piece of mail containing such communication is posted.
c/o FluentStream Technologies, LLC
1624 Market St Ste 226
Denver, Colorado 80202-1559 US
Attn: Legal Department
The headings in the sections and subsections of this Agreement are inserted for convenience only and in no way alter, amend, modify, limit or restrict the interpretation of this Agreement or the contractual obligations of the parties hereto. For purposes of this Agreement, the word “including”, and correlative terms shall mean inclusion without limitation, and the word “or” is not exclusive.
No waiver by FluentStream of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of FluentStream to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Agreement shall continue in full force and effect.
15.9 Equitable Relief
You acknowledge that use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of information or materials related to the Services, may cause irreparable injury to FluentStream, its affiliates, service providers, and agents. You hereby acknowledge and agree that FluentStream, its affiliates, service providers, and agents are entitled to seek equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief, in the event that you or a user of your account violates the terms of this Agreement.
15.10 Enhanced Service Provider Notice
FluentStream does not directly provide Customer with voice origination and termination services. Voice connections with the Public Switched Telephone Network (PSTN) are provided by wholesale service providers.
FluentStream may assign its rights and obligations under this Agreement or any Acquired Contract to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement or Acquired Contracts without FluentStream’s prior written consent.
15.12 Agreement and Other Terms
This Agreement, including the Customer Service Order, the E911 Policy, the Equipment Addendum (if applicable), the HIPAA Business Associate Addendum (if applicable), and all policies and agreements referenced herein, constitute the entire agreement between the parties hereto regarding its subject matter. No other representation, warranty, term, or condition, other than as expressly set forth in this Agreement, shall be binding upon FluentStream. In the event of any conflict between the terms and provisions of this Agreement and those of any addendum, Customer Service Order, or other document, agreement, or policy, or prior service terms, Customer hereby agrees that such conflict shall be resolved by FluentStream, in its sole discretion, and FluentStream is hereby appointed and permitted by Customer to determine the appropriate governing terms and/or document that shall control in the event of any conflicting or ambiguous terms. In the event of a conflict between a provision of this Agreement and an Acquired Contract, during the Transition Period, the Acquired Contract will govern except as provided elsewhere herein, and after the Transition Period, this Agreement shall control.
HIPAA Business Associate Addendum
This HIPAA Business Association Addendum (this “HIPAA Addendum”) is an addendum to the Terms of Service (and incorporated therein by reference). This HIPAA Addendum defines the rights and responsibilities of each of us with respect to Protected Health Information as defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, including the HITECH Act and Omnibus Rule, as each may be amended from time to time (collectively, “HIPAA”). This HIPAA Addendum shall be applicable only in the event and to the extent FluentStream meets, with respect to you, the definition of a Business Associate set forth at 45 C.F.R. §160.103, or applicable successor provisions. This HIPAA Addendum shall be subject to the Terms of Service, and in the event of a conflict between the Terms of Service and this HIPAA Addendum, the Terms of Service shall control except to the extent necessary to comply with HIPAA.
1. Defined Terms of Service
For the purposes of this HIPAA Addendum, capitalized terms shall have the following meanings:
“Agreement” shall have the same meaning as given in the Terms of Service.
“Business Associate” shall mean the FluentStream entity from which you purchase Services.
“CFR” shall mean the Code of Federal Regulations.
“Individual” shall have the same meaning as the term “individual” in 45 CFR § 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
“Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.
“Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 CFR § 164.501, limited to the information received by Business Associate from or on behalf of Customer.
“Required By Law” shall have the same meaning as the term “required by law” in 45 CFR § 164.501.
“Security Rule” shall mean the Security Standards for the Protection of Electronic Protected Health Information, located at 45 CFR Part 160 and Subparts A and C of Part 164.
“Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.
2. Obligations and Activities of Business Associate
- Business Associate shall not use or disclose Protected Health Information other than as permitted or required by this HIPAA Addendum or as permitted or Required by Law.
- Business Associate agrees to provide those physical, technical, and administrative safeguards described in the Terms of Service and the other parts of the Agreement including those safeguards and Services selected by you. If Business Associate agrees as part of this HIPAA Addendum to carry out an obligation of yours under the Privacy Rule, then Business Associate will comply with the requirements of the Privacy Rule applicable to such obligation.
- Business Associate agrees to mitigate, to the extent reasonably practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate or its agents or subcontractors in violation of the requirements of this HIPAA Addendum.
- Within five Business Days of becoming aware, Business Associate agrees to report to you (i) Security Incidents (as defined in 45 C.F.R. §164.304 and as further described below), (ii) the Breach of unsecured PHI (as defined in §13402(h) of the HITECH Act), or (iii) an access, acquisition, use or disclosure of PHI in violation of this HIPAA Addendum.
- Both parties hereto acknowledge that there are likely to be a significant number of meaningless or unsuccessful attempts to access Customer’s Hosted System or Services, which make a real-time reporting requirement impractical for both parties hereto. The parties hereto acknowledge that Business Associate’s ability to report on system activity, including Security Incidents, is limited by, and to, the Services which Customer has purchased.
- Certain FluentStream Services can provide detailed reporting of potential Security Incidents (including those listed above), and Customer is responsible for purchasing, implementing, and monitoring such Services for potential Security Incidents as appropriate based on Customer’s use of the Services.
- Other than as included with and permitted by those Services Customer purchases, Business Associate undertakes no obligation to report unsuccessful security incidents or to monitor Customer’s Services. Business Associate undertakes no obligation to report network security related incidents which occur on the FluentStream managed network but do not directly involve Customer’s Hosted System. Where Customer has purchased Services or devices which include reporting on network and system security events, the parties hereto agree that the following are illustrative examples of unsuccessful security incidents which, when they do not result in the unauthorized access, use, disclosure, modification or destruction of PHI need not be reported by Business Associate: pings against network devices, port scans, attempts to log on to a system or database with an invalid password or username, malware.
- Business Associate agrees to obtain from any agent, including a subcontractor to whom it provides Protected Health Information, reasonable assurances that it will adhere to the same restrictions and conditions that apply to Business Associate under this HIPAA Addendum with respect to such information.
- All Protected Health Information maintained by Business Associate for you will be available to you in a time and manner that reasonably allows you to comply with the requirements under 45 CFR § 164.524. Business Associate shall not be obligated to provide any such information directly to any Individual or person other than you.
- All Protected Health Information and other information maintained by Business Associate for you will be available to you in a time and manner that reasonably allows you to comply with the requirements under 45 CFR § 164.526.
- You acknowledge that Business Associate is not required by this HIPAA Addendum to make disclosures of Protected Health Information to Individuals or any person other than you, and that Business Associate does not, therefore, expect to maintain documentation of such disclosure as described in 45 CFR § 164.528. In the event that Business Associate does make such disclosure, it shall document the disclosure as would be required for you to respond to a request by an Individual for an accounting of disclosures in accordance with 45 CFR §164.504(e)(2)(ii)(G) and §164.528, and shall provide such documentation to you promptly on your request. In the event that a request for an accounting is made directly to Business Associate, Business Associate shall, within 2 Business Days, forward such request to Customer.
3. Permitted Uses and Disclosures by Business Associate
Except as otherwise limited in this HIPAA Addendum or other portion of the Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, you as specified in the Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by you.
4. Specific Use and Disclosure Provisions
Except as otherwise limited in this HIPAA Addendum or other portion of the Agreement, Business Associate may:
- use Protected Health Information for the proper management and administration of Business Associate or to carry out its legal responsibilities;
- disclose Protected Health Information for the proper management and administration of Business Associate, provided that disclosures are (i) Required By Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached; and
- use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with §164.502(j)(1).
5. Your Obligations
You shall notify Business Associate of:
- any limitations(s) in your notice of privacy practices in accordance with 45 CFR § 164.520 to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information;
- any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information; and
- any restriction to the use or disclosure of Protected Health Information that you have agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.
You agree that you will not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by you.
You agree to comply with those security obligations identified in the Terms of Service, and to implement, purchase, or maintain appropriate safeguards (including security appliances, services, and practices) as required for you to comply with the Security and Privacy rules as applicable to you.
6. HIPAA Addendum Term and Termination
- The term of this HIPAA Addendum shall continue for the term of the Agreement to which this HIPAA Addendum is incorporated by reference, and following termination of such Agreement until all Protected Health Information is destroyed or returned to you or your designee.
- If Business Associate materially breaches the terms of this HIPAA Addendum, then you may terminate any related Services Agreement(s).
- Upon termination of the Agreement for any reason Business Associate shall destroy all Protected Health Information which remains on your Service or otherwise in Business Associates possession. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate as well as Business Associate itself. Business Associate shall retain no copies of the Protected Health Information. In the event that Business Associate determines that destroying the Protected Health Information is infeasible, Business Associate shall promptly provide you notification of the conditions that make destruction infeasible. Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the destruction infeasible, for so long as Business Associate maintains such Protected Health Information. You shall bear the cost of storage of such Protected Health Information for as long as storage by Business Associate is required. This Section does not require Business Associate to segregate any Protected Health Information from other information maintained by you on Business Associate’s servers and Business Associate may comply with this requirement by returning or destroying all of the information maintained on its servers by you. Upon your written request FluentStream shall either physically destroy or multi-pass wipe any hard drive dedicated to your use, provided that FluentStream may charge you an additional fee at its then current rates for such additional services.
- If you request contemporaneously with any termination event or notice, Business Associate will allow you to have access to your Service for a reasonable period of time following termination as necessary for you to retrieve or delete any Protected Health Information at your then current monthly recurring rate; provided, however, that if the security of your servers has been compromised, or the Agreement was terminated for your failure to use reasonable security precautions, FluentStream may refuse to allow you to have access to your Service but will use reasonable efforts to copy your data onto media you provide to FluentStream, and will ship the media to you at your expense. FluentStream’s efforts to copy your data onto your media shall be billable at an hourly rate.
You shall notify Business Associate of:
Each of us agrees to take such action as is reasonably necessary to amend this HIPAA Addendum from time to time as is necessary for you to comply with the requirements of HIPAA as they may be amended from time to time; provided, however, that if such an amendment would materially increase the cost of Business Associate providing service under the Agreement, Business Associate shall have the option to terminate the Agreement on 30 days advance notice.
Our respective rights and obligations under this HIPAA Addendum shall survive the termination of the Agreement.
Any ambiguity in the Agreement shall be resolved to permit you to comply with HIPAA and the Privacy Rule.