EMC VOIP SERVICE TERMS AND CONDITIONS
SIGNING UP FOR EMC’S VOIP SERVICE CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING
OF THIS AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND
ANY AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
1. INTRODUCTION. This EMC VoIP Service Agreement, together with
any operating rules, policies, price schedules, or other supplemental documents
expressly incorporated herein by reference and published from time to (collectively,
the "Agreement"), constitutes the entire agreement between MARITIME TELECOMMUNICATION
NETWORK, Inc., a Colorado corporation d/b/a EMC (hereinafter
referred to as ("we," "us" or "EMC") and the party who downloads our VoIP applications
and uses the EMC VoIP service (herein after referred to as "you," "user" or "Customer")
regarding EMC’s Service (as defined herein), and supersedes all prior agreements,
discussions and writings between the parties regarding the subject matter of this
Agreement. For purposes of this Agreement, the term "EMC" include our respective
subsidiaries, affiliates, agents, employees, predecessors in interest, successors,
attorneys and any other service provider that furnishes services or devices to you
in connection with this agreement.
2. DEFINITION OF SERVICE. EMC VoIP Service is an enhanced voice
communication service which uses a satellite network to transport voice and text
messages ("Texting," which will enable intra-application ("App") texting until further
notice) communications initiated on certain vessels at sea that have been converted
into data packets. For purposes of this Agreement, the term "Service" shall mean
EMC VoIP Service, including the downloaded all software and the VoIP Application
and other features, and services provided by EMC under the pricing package you select
then currently offered. For purposes of this Agreement, "VoIP Application" shall
mean the EMC VoIP software application that you have downloaded to your Wi-Fi enabled
mobile phone, tablet or other supported device ("Device").
3. REVISIONS TO TERMS. From time to time, we may revise the terms
and conditions of this Agreement (including, without limitation, any of the policies
incorporated by reference). Notice of revisions to the Agreement shall be delivered
via message to your Device or posted on the EMC Web site ("the Web site") and deemed
given and effective on the date posted to the Web site. If you do not agree to the
revision(s), you must cease using the Service immediately, subject to the Termination
provisions provided in this Agreement. By continuing to use the Service after revision(s)
are in effect, you hereby accept and agree to all such revisions.
4. CUSTOMER REPRESENTATIONS. You represent and warrant that you
are at least eighteen (18) years of age or, as applicable, the age of majority in
the country, state or province in which you reside, and that you possess the legal
right and ability to enter into this Agreement. You represent and warrant that your
name, user name, contact information and registered Device location are true and
correct. You understand that EMC relies on the information you supply and that providing
false or incorrect information may result in Service provisioning and delivery delays,
the suspension or termination of your Service. You agree to promptly notify EMC
whenever your personal or billing information changes (including, but not limited
to, your name, e-mail address, Device telephone number, and credit card number and
expiration date). You agree to be financially responsible for your use of the Service
as well as for use of your account by others (whether authorized or not).
5. USE OF SERVICE AND DEVICE. You may not transfer the Service
to any other person for any purpose without express written permission from EMC
in advance. EMC reserves the right to immediately terminate, change the calling
plan or modify the Service if EMC determines, in its sole discretion, that you are
using the Service for unauthorized use. You agree that you are responsible for all
use(s) related to your account. You understand this means that you accept full liability
and responsibility for your actions or the actions of anyone who uses the Service
via your account with or without your permission. You acknowledge that EMC may send
you information, including your Password, via e-mail over the Internet. You agree
that the Internet is not a secure network and that third parties may be able to
intercept, access, use or corrupt the information and telephone calls you transmit
over the Internet. In order to maintain the security of your Service, you should
safeguard your User IDs and Passwords. EMC does not represent or warrant that use
of the Service by you is permitted by all jurisdictions which the vessel on which
you are sailing may travel too. If you use the Service in the territorial waters
of a country other than the United States, you do so at its own risk, including
the risk that such activity violates local laws in the country where you do so.
You will be solely responsible for any violations of local laws and regulations
or violations resulting from such use. EMC reserves the right to disconnect Services
immediately if EMC determines, in its sole and absolute discretion, that you have
used the Service or the device in violation of applicable laws, including without
limitation laws of jurisdictions outside the United States. You are solely liable
for any and all use of the Service.
6. SERVICE DISTINCTIONS. You acknowledge and understand that the
Service is not a telephone service, and we provide it on a best efforts basis. Important
distinctions exist between traditional telephone service and the enhanced Service
offering provided by EMC. The Service is subject to different regulatory treatment
than telephone service. This treatment may limit or otherwise affect your rights
of redress before Federal and State telecommunications regulatory agencies or judicial
forums. Events beyond our control may affect our Service, such as satellite or terrestrial
network outages. We will act in good faith to minimize disruptions to your use of
and access to the Service.
7. 911 DIALING, OPERATOR ASSISTED CALLING; PLACE OF USE. YOU ACKNOWLEDGE
AND UNDERSTAND THAT NO 911 CAPABILITY IS AVAILABLE THROUGH THE SERVICE. You further
acknowledge and understand that the Service does not support operator assisted calling
or other similar features, including, without limitation, collect calls, etc. You
acknowledge that may only be used on participating ocean-going vessels while EMC
satellite systems are turned on and operating. Lastly, you acknowledge that the
Service allows outbound calls and inbound calls and until further notice, intra-App
Texting only (i.e., Texting between you and another person onboard the same vessel
with the App).
8. FEES AND CHARGES. All charges and billing policies are defined
by the specific package you select. We will charge you in advance for the pricing/service
package selected, and you authorize us to charge your indicated credit card (which
must be valid) for such package. Any unused service minutes/texts will be forfeited
without refund at the indicated package expiration date. All long distance communication
and telecommunications taxes and fees are included in the Service charge.
9. Acceptable Use Policy. You agree to comply with any EMC Acceptable
Use Policy ("AUP") which may be posted on our Web site from time to time at www.emcconnected.com,
and is incorporated into this policy with this reference. Changes to the AUP may
be made at any time without notice to you and is effective the day following posting
to our Web site.
10. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY.
10.1.1 EMC MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR THE
OPERATION THEREOF AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. EMC DOES NOT WARRANT THAT
THE SERVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION
OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. EMC DOES NOT AUTHORIZE
ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO
MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW,
BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION
SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST EMC TO THE FULLEST EXTENT POSSIBLE
UNDER THE LAW.
10.1.2. THERE ARE NO CREDIT ALLOWANCES FOR INTERRUPTION OF EMC SERVICE. WE
WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF EMC SERVICE.
10.2. LIMITATION OF LIABILITY.
10.2.1. IN NO EVENT SHALL EMC BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED
ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF
REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY
TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY
TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL
SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE
DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE,
AND/OR THIS AGREEMENT. NOR SHALL EMC BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE
THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY
INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT
NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE
PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT,
NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION,
FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES,
FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK
OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO EMC OR CUSTOMER,
AND ANY CAUSE THAT IS BEYOND EMC’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE
OF ANY SATELLITE, AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS
TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY.
EMC SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO EMC’S OR CUSTOMER’S TRANSMISSION
FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION,
THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION
THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF
WHETHER SUCH DAMAGE OCCURS AS A RESULT OF EMC’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS.
EMC’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES
WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY
TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY,
TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT EMC
WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE
TO REIMBURSE EMC FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS,
INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL
BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION
IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY
AGAINST EMC TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
11. INDEMNIFICATION AND WAIVER OF CLAIMS.
11.1.1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND/OR YOUR DEVICE
BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE
TO DEFEND, INDEMNIFY AND HOLD HARMLESS EMC AGAINST ANY AND ALL LIABILITY FOR ANY
SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY
AND HOLD HARMLESS EMC FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL
INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE,
PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND
AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO
USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO
DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY,
LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE,
THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR
THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE,
RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE TERMINATION
OR EXPIRATION OF THE AGREEMENT.
12. CONTENT. You are liable for all liability that may arise from
the content you transmit to any person, whether or not you authorize it, using the
Service or your Device. You promise that you and anyone who uses the Service and
all your and their content comply at all times with all laws, regulations, and written
and electronic instructions for using the Service.
13. MISCELLANEOUS LEGAL CONSIDERATIONS
13.1. Governing Law. This Agreement and the relationship between
you and EMC shall be governed by the laws of the state of Florida, USA without regard
to its conflict of law provisions. Any claim brought pursuant to this Agreement
shall be brought in a court of competent jurisdiction within the State of Florida
and venue for any such claim shall be proper in the appropriate state or federal
court located in Broward County, Florida.
13.2. No Waiver of Rights. Our failure to exercise or enforce any
right or provision of this agreement will not constitute a waiver of the right or
provision. EMC reserves all of its rights at law and equity to proceed against anyone
who uses the Services or Device illegally or improperly. All determinations by EMC
under this Agreement and exercise of its rights are made and done in our sole and
13.3. No Third Party Beneficiaries. If you are not a party to this
Agreement, you do not have any remedy, claim, liability, reimbursement, or cause
of action. This Agreement does not create any other third party beneficiary rights.
13.4. Entire Agreement. This Agreement, the applicable Service
package selected, the AUP, or any reference herein to the content of EMC’s websites
constitute the entire agreement between you and EMC and govern your use of the Service,
superseding any prior agreements between you and EMC and any and all prior or contemporaneous
statements, understandings, writings, commitments, or representations concerning
its subject matter. No changes to this Agreement shall be binding upon either you
or EMC unless they are assigned by the parties.
13.5. Severability. If any part of this Agreement is legally declared
invalid or unenforceable, all other parts of this Agreement will remain valid and
enforceable. This invalidity or non-enforceability will not invalidate or render
unenforceable any other portion of this agreement.
14. DISPUTE RESOLUTION AND BINDING ARBITRATION.
14.1. It is important that you read this entire section carefully.
This section provides for resolution of disputes through final and binding arbitration
before a neutral arbitrator instead of in a court by a judge or jury.
14.2. Arbitration. EMC and you agree to arbitrate any and all disputes
and claims between you and EMC except with respect to claims for amounts owed for
services rendered. Arbitration means that all disputes and claims will be resolved
by a neutral arbitrator instead of by a judge or jury in a court. This agreement
to arbitrate is intended to be given the broadest possible meaning under the law.
It includes, but is not limited to: disputes and claims arising out of or relating
to any aspect of the relationship between you and EMC, whether based in contract,
tort, statute, fraud, misrepresentation or any other legal theory; disputes and
claims that arose before this or any prior agreement (including, but not limited
to, claims relating to advertising); disputes and claims that may arise after the
termination of this agreement; disputes and claims that are currently the subject
of individual litigation; disputes and claims that are currently the subject of
purported class action litigation in which you are not a member of a certified class;
and disputes and claims concerning the scope of this arbitration provision. References
to "EMC," "us" and "you" include our respective subsidiaries, affiliates, agents,
employees, predecessors in interest, successors and assigns, as well as all authorized
or unauthorized users or beneficiaries of the Service under this agreement or any
prior agreements between you and EMC.
14.3. Formal Notice of Disputes. A party who intends to seek arbitration
must first send to the other party a written "Notice of Dispute" setting forth in
detail, including submission of supporting documentation, the grounds of your dispute.
The Notice of Dispute to EMC must be sent to EMC by certified mail addressed to
3044 N. Commerce Parkway, Miramar, FL USA 33025.
14.4. The Notice of Dispute must describe the nature and basis of the dispute
or claim and set forth the specific relief sought. If you and EMC do
not reach an agreement to resolve the dispute or claim within thirty (30) days after
the Notice of Dispute is received, you or EMC may commence an arbitration proceeding.
The amount of any settlement offer made by you or EMC shall be non-discoverable
and shall not be disclosed to the arbitrator until after the arbitrator determines
the amount, if any, to which you or EMC is entitled.
14.5. Arbitrator and Arbitral Rules The arbitration shall be administered
by the American Arbitration Association ("AAA"). The arbitration shall
be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary
Procedures for Consumer Related Disputes (collectively, "AAA Rules"), as modified
by this Agreement. The AAA Rules are available at www.adr.org or by calling the
AAA at 1-800-778-7879.
14.6. Waivers. You and EMC agree that, by entering into this agreement,
you and EMC are waiving the right to a trial by judge or jury. You and EMC agree
that the arbitrator may award relief only in favor of the individual party seeking
relief and only to the extent necessary to provide relief warranted by that party’s
individual claim. You and EMC agree that you and EMC may bring claims against the
other only in your or its individual capacity, and not as a plaintiff or class member
in any purported class or representative proceeding. You and EMC agree that, unless
you and EMC agree otherwise, the arbitrator may not consolidate more than one person’s
or entity’s claims, and may not otherwise preside over any form of a representative
or class proceeding. If this specific waiver of class actions provision, or any
portion thereof, is found to be unenforceable, then the entirety of this dispute
resolution and binding arbitration provision shall be null and void.
14.7. Statute of Limitations. You must present a claim within one
(1) year of the date of the occurrence of the event or facts giving rise to a dispute,
or you waive the right to pursue a claim based upon such event, facts, or dispute.
14.8. Exceptions to Arbitration Agreement. Notwithstanding the
obligation to arbitrate and any other provisions to the contrary herein, you and
we agree that with respect to claims for unpaid use of the Service: (a) we may take
our dispute to small claims court, if the contained dispute qualifies for hearing
by such court; (b) if you fail to timely pay amounts due, we may assign your account
for collection, and the collection agency may pursue in court claims limited strictly
to the collection of the past due debt and any interest or cost of collection permitted
by law or the Agreement; (c) you or we may take any disputes over the validity of
any party’s intellectual property rights to a court of competent jurisdiction; (d)
any dispute related to or arising from allegations associated with fraudulent or
unauthorized use, theft, or piracy of service may be brought in a court of competent
jurisdiction; and (e) either you or we may seek any interim or preliminary relief
from a court of competent jurisdiction, necessary to protect the rights or property
of you or EMC, pending the completion of arbitration.
14.9. Modification of Arbitration. If EMC makes any substantive
change to this arbitration provision, you may reject any such change and require
EMC to adhere to the language in this provision.
14.11. Venue/Jurisdiction. All claims for Arbitration shall be
submitted to and heard by the office of AAA located in Broward County, Florida.
Should an evidentiary hearing be required by the Arbitrator, such hearing shall
be heard in Broward County, Florida.
15. PRIVACY. EMC Service utilizes, in whole or in part, the public
Internet and third party networks to transmit voice and other communications. You
acknowledge and understand that EMC cannot guarantee that voice over IP communication
is completely secure. You agree that EMC may access all features of your account
and the Service to determine whether the Service is being used fraudulently and/or
in violation of this Agreement, and for any other purposes. YOU AGREE THAT EMC SHALL
NOT BE LIABLE FOR ANY LACK OF PRIVACY. EMC is committed to respecting your privacy
relating to personally identifiable information. Once you choose to provide personally
identifiable information, it will only be used in the context of your relationship
with EMC. EMC will not sell, rent, or lease your personally identifiable information
to others. Upon the appropriate request of a government agency, law enforcement
agency, court or as otherwise required by law, EMC may disclose personally identifiable
16. EXPORT COMPLIANCE. You agree to comply fully with all relevant
export laws and regulations of the United States, including but not limited to the
U.S. Export Administration Regulations, administered by the Department of Commerce,
Bureau of Industry and Security. You also expressly agree that Customer shall not
export, directly or indirectly, re-export, divert, or transfer any portion of the
Service or device, including, without limitation, to any destination, company, or
person restricted or prohibited by U.S. export controls.
17. ASSIGNMENT. EMC may assign all or part of its rights or duties
under the Agreement without notifying you. If we do that, we have no further obligation
to you. You may not assign the Agreement or the Service without our prior written
18. SURVIVAL. The provisions of this Agreement relating to indemnification,
limitations on liability, warranty limitations and disclaimers, resolution of disputes,
billings and your obligation to pay for the Service provided and any additional
usage charges, shall survive the termination of the Agreement and the termination
of the Service.
19. CALEA. EMC intends to fully comply with the Communications
Assistance for Law Enforcement Act ("CALEA") to the extent applicable to the Service.
By using the Service, you hereby agree and consent to EMC’s right to monitor and
otherwise disclose the nature and content of your communications if and as required
by CALEA without any further notice to you.
20. FORCE MAJEURE (EVENTS BEYOND EMC’S CONTROL). EMC shall be excused
from any delay or failure in performance hereunder caused by reason of occurrence
or contingency beyond its reasonable control, including without limitation, acts
of God, earthquake, fire, flooding, riots, war, government intervention, embargoes,
strikes, labor difficulties, equipment failure, late delivery by suppliers or other
difficulties as may occur in spite of EMC’s best efforts.
21. SOFTWARE COPYRIGHT. Any software used by EMC to provide the
Service and any software provided to you in conjunction with providing the Service
is protected by copyright law and international treaty provisions. You may not copy
the software or any portion of it.
22. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT
ACT (DMCA) NOTICE. Our Web site content, our materials, services, logs,
service marks and trademarks are protected by trademark, copyright, or other intellectual
property laws, and international treaty provisions. Infringement by you may result
in civil or criminal prosecution.