Hosted Voice Terms & Conditions

MARCO HOSTED VOICE

TERMS OF SERVICE

These Marco Hosted Voice Terms of Service constitute the agreement (“Agreement”) between Marco Technologies, LLC (“we,” “us” or “Marco”) and the user (“you,” “user”, “Customer” or “Subscriber”) for the purchase and use of  Marco’s business services, the Devices,  and any related products or services as described herein and in the Service Activation Form, (collectively, “Service” or “Marco Hosted Voice”). The Monthly Recurring Charges for the Service include site and user services, Devices, and any other products provided by Marco, such as an IP Phone, Multimedia Terminal Adapter, Analog Telephone Adapter, Firewall, Switch, Router or any other IP connection device used in conjunction with the Service as defined herein and in your Service Activation Form. If you purchased equipment from a dealer, retail store, or a provider other than Marco, you are a “Retail Customer” for purposes of this Agreement.

By activating the Service through Marco’s Project Management process or by using the Service, you represent that you are of legal age to enter into this Agreement and that you have read, understand and fully accept the terms and conditions of this Agreement.

1.  EMERGENCY SERVICES – 911 DIALING

1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing” which is a limited emergency calling service available only on Marco-certified Devices (“Devices”). The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each Marco Hosted Voice phone number that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described on our website page for 911 Dialing under “Features,” and below. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Marco Hosted Voice 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase should include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (the “911 Sticker”). It is your responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that you use with the Service. If you did not receive a 911 Sticker with your Device, or you require additional 911 Stickers, please contact the Marco Support Desk at MIT@marconet.com or (800) 847 - 3097.

1.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with the Marco Support Desk the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature will be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by contacting the Marco Support Desk at MIT@marconet.com or (800) 847 - 3097. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.

1.3 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.

1.4 How Emergency Personnel are Contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator may not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.

1.5 Service Outages.

a. Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.

b. Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.

c. Service Outage Due to Suspension or Termination of Your Marco Hosted Voice Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.

d. Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that Marco is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.

e. Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.

f. No Liability. You acknowledge that Marco is not responsible for any of the service outages described in this Section 1.5, or any other loss of service or related impediment to your use of the Service, including the 911 Dialing feature, that may result. In the event you lose service because of a service outage or other service loss or impediment, you will continue to be responsible for payment of the Service charges until termination of the Service in accordance with this Agreement.

1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.

1.7 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.

1.8 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.

1.9 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.

1.10 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our Services, including the 911 Dialing feature, are answered or addressed by any local emergency response or national calling center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing feature calls to local emergency response centers and to a national emergency calling center. WE DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT.  NEITHER MARCO NOR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, OR AGENTS SHALL BE HELD LIABLE FOR ANY DEMAND, CLAIM, CAUSE OF ACTION, DAMAGE, LIABILITY, OR LOSS WHATSOEVER, AND YOU HEREBY WAIVE ANY AND ALL SUCH DEMANDS, CLAIMS, CAUSES OF ACTION, DAMAGES, AND LOSSES ARISING FROM OR RELATING TO THE SERVICE, INCLUDING THE 911 DIALING FEATURE, AND ANY DEVICE(S) OR EQUIPMENT (COLLECTIVELY, “CLAIMS”), UNLESS AND TO THE EXTENT SUCH CLAIMS RESULTED FROM OUR RECKLESSNESS OR WILLFUL MISCONDUCT. 

You shall defend, indemnify, and hold harmless Marco, its shareholders, directors, officers, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, including the 911 Dialing feature, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney and expert  fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including the 911 Dialing feature, incorrectly routed 911 Dialing feature calls , and/or the inability of any user of the Service to be able to use the 911 Dialing feature or access emergency service personnel.

1.11 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.

2. SERVICE

In addition to the 911 Dialing feature, Marco agrees to provide andClient agrees to purchase the Service on the financial terms set forth in Marco’s Service Activation Form.  In addition, Marco will provide Client with access to the Marco Support Desk to answer questions and to assist in resolving issues relating to the Service within its sole discretion.  Client may access the Marco Support Desk 24x7x365 at MIT@marconet.com or (800) 847 - 3097.  You agree to be bound by the attached Acceptable Use Policy, which is incorporated by reference and made part of this Agreement.

2.1 Term. Service is offered on a monthly or multi-month basis as set forth in your Service Activation Form. The term begins on the date that Marco activates your Service and ends on the day before the anniversary date of your Term. Subsequent terms of this Agreement automatically renew on a monthly basis unless you give us written notice of intent to terminate at least thirty (30) days before the end of the monthly term in which the notice is given.

2.2 Service Commitment. Site and user services may be increased at any time during the original term of this Agreement and may be added co-terminus to the original term. Marco financed Devices or other products may be added co-terminus to the original Agreement on a pro-rated pricing schedule. Additional Devices or other products may be purchased or added with a change order to the original Service Activation Form. Site and user services may only be reduced up to 50% of the original contracted monthly service rate from the Service Activation Form. Marco financed Devices and other products cannot be reduced during the original Agreement term, you will be responsible for 100% of a full month’s charge multiplied by the remaining months through the end of the then-current contract term for any such items.

2.3 Use of Service and Marco provided Device. You shall not resell or transfer the Service or any Device or other product hereunder to another party without our prior written consent. You are prohibited from using the Service or the or any Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or any Device for any of the aforementioned or similar activities.

2.4 Use of Service only. For Service only customers, you are responsible for supplying, operating and supporting Customer Premise Equipment for use with the Service. In addition, any customer supplied equipment must be pre-approved by Marco in writing. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.

2.5 Prohibited Uses.

a. Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Marco will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.

b. Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Marco will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.

2.6 Use of Service and Device by Customers Outside the United States. Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to terminate your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device outside of the United States or Canada.

2.7 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.

a. Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.

b. Unauthorized Usage of Device; Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall defend, indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software.

2.8 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of any Device or perform a factory reset of the Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.

2.9 Theft of Service. You shall notify us immediately, in writing at MIT@marconet.com or by calling our Support Desk at (800) 847 - 3097, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service, using a Device stolen from you, and any and all stolen, fraudulent or unauthorized use of the Service.

2.10 Number Transfer on Service Termination. Upon the termination of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:

• Such new service provider is able to accept such number
• Your account has been properly terminated
• Your account is completely current, including payment for all charges and applicable termination fees
• You request the transfer upon terminating your account

2.11 Service Distinctions. The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

2.12 Risk of Loss. You shall  bear all risk of loss of, theft of, casualty to or damage to any Device  from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.

2.13 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

2.14 No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.

2.15 Incompatibility With Other Services.

a. Security Systems. The Service may not be compatible with security systems that require an analog telephone line powered by the local central office. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.

b. Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

3. CHARGES; PAYMENTS; TAXES; TERMINATION

3.1 Billing. When the service is activated, you must provide us with a valid email address and phone number. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is canceled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your account, including but not limited to:

• Activation fees
• Monthly Service fees
• International usage charges
• Advanced feature charges
• Equipment purchases
• Termination fees
• Shipping and handling charges

The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website or located on your Service Activation Form.

3.2 Billing Disputes. You must notify us in writing within seven (7) days after receiving your invoice statement if you dispute any Marco charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:

Marco Technologies, LLC
4510 Heatherwood Road
St. Cloud, MN 56301
Attn: Marco Hosted Voice 

-or-

contractservices@marconet.com

This e-mail address is being protected from spambots. You need JavaScript enabled to view it. 

-or-

(800)847-3097

3.3 Payment and Collection.

a. Payment. We accept payment by credit or debit card, ACH, and check unless other payment terms have been explicitly agreed to in writing by Marco Technologies LLC. Your subscription to the Service authorizes us to charge your account. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your account, whereupon we will charge your account for the termination fee, if applicable, and any other outstanding charges and terminate you Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.

b. Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.

3.4 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus the termination fee, if applicable, all of which will immediately become due and payable.

3.5 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.

3.6 Termination Fee. You are purchasing the Service for the complete contract term designated on the Service Activation Form.  If you attempt to terminate Service prior to the end of a current Agreement term, you will be responsible for 50% of a full monthly recurring charge for site and user services multiplied by the remaining months through the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month’s charges in the event that you do not provide the requisite thirty (30) day notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement. Marco financed Devices and other products cannot be terminated, you will be responsible for 100% of a full month’s Devices and other products charges multiplied by the remaining months through the end of the then-current Agreement term for any such items.

3.7 Payphone Charges. If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.

3.8 Charges for Directory Calls (411). We will charge you $1.50 for each call made to Marco directory assistance.

3.9 Charges for Conference Bridge Calls. We will charge you per minute for each caller who calls into your conference bridge. Your conference bridge per minute usage fee will be the per minute conference bridge usage fee determined in your Service Activation Form. The per minute usage fee will be calculated based on all participants on the conference bridge, including on-network and off-network participants.

3.10 SLA. No credit will be available under a Marco service level guaranty or agreement, if applicable, for interruptions of service. The Service is delivered on a public internet connection.  Marco therefore does not guaranty uptime, availability of services, lack of service degradation, or lack of quality issues.

4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES

4.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:

• An act or omission of an underlying carrier, service provider, vendor or other third party
• Equipment, network or facility failure
• Equipment, network or facility upgrade or modification
• Force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions
• Equipment, network or facility shortage
• Equipment or facility relocation
• Service, equipment, network or facility failure caused by the loss of power to you
• Outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party
• Any act or omission by you or any person using the Service or Device provided to you
• Any other cause that is beyond our control, including, without limitation, a failure of or defect in any device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded

Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.

4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL MARCO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THE SERVICE, ANY DEVICE, OR PRODUCTBE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING FEATURE, OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS  WHETHER ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY, BREACH OF WARRANTY,  OR OTHER LEGAL OR EQUITABLE THEORIES WHATSOEVER, AND REGARDLESS OF WHETHER SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES WERE FORESEEABLE.

Marco’s aggregate liability under this agreement will in no event exceed the Service charges Paid or payable by you for the duration of any Material breach of this agreement by Marco.

4.3 Indemnification. You shall defend, indemnify, and hold harmless Marco, its officers, directors, employees, agents and affiliates and any other service provider who furnishes services to you in connection with the Service from any and all liabilities, claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney and expert fees) arising out of or relating to your purchase, or your or your employees’ officers’, directors’, agents’, affiliates’, or any third party’s use of the Service, relating to the Services,  including without limitation, the 911 Dialing feature or the Device and Equipment.

4.4 No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDIING THE SERVICE, INCLUDING THE 911 FEATURE, OR THE DEVICE OR EQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE, INCLUDING THE 911 DIALING Feature, OR DEVICE OR EQUIPMENT WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE, Including the 911 dialing feature, OR THE DEVICE or Any firmware WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, HARMFUL CODE, THIRD PARTY DISRUPTION, DEGRADATION OF VOICE QUALITY, LOSS OF CONTENT, DATA OR INFORMATION.

4.5 Device/Equipment Warranties.

a. Retail Customers. A Retail Customer will not receive a warranty of any kind from Marco Technologies LLC.

b. Marco Hosted Voice Customers. Manufacturer warranty extends for a period of one (1) year from the time of purchase. Marco will extend the original equipment manufacturer’s warranty for a period of two (2) years unless this Agreement is terminated or expired. 

4.6 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

4.7 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.

4.8 Recording Conversations. Marco provides a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is solely responsible for applying the local laws in the relevant jurisdiction when using this feature.

4.9 Any statements or writings of any Marco officers, directors, employees, agents, or contractors, which are inconsistent with this Section 4, do not create any warranty or similar obligation whatsoever.

5. MISCELLANEOUS

5.1 Governing Law. The Agreement and the relationship between you and us is governed by the State of Minnesota without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the State of Minnesota in Stearns County and waive any objection as to venue or inconvenient forum.

5.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Stearns County, Minnesota. The arbitrator’s decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to award relief in excess of what this Agreement provides. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Service or Device must be filed within one (1) year after such claim or cause of action arose or be forever barred. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. This arbitration provision constitutes a waiver of any right to a jury trial and an agreement to be subject to jurisdiction in, and conduct arbitrary proceedings in, Stearns County Minnesota. Notwithstanding the above, nothing in this Agreement shall be construed as prohibiting Marco from bringing an action in court for the collection of Client’s payment obligations or for injunctive relief.

5.3 Entire Agreement. This Agreement and the rates for Services found on your Service Activation Form, constitute the entire agreement between you and Marco and govern the use of the Service, including the 911 Dialing Feature, and Device by you, members of your business, employees, third parties, and guests. This Agreement supersedes any prior agreements between you and Marco and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter, whether oral or written, express or implied.  Purchase orders or other similar writings (regardless of their date) of Client or a third party on Client’s behalf shall not change this Agreement and shall not be binding on Marco whatsoever.  Except as stated below, no modification of or amendment to this Agreement will be effective unless in writing and signed by a duly authorized representative of both parties.

5.4 Privacy. The Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Marco is not liable for any lack of privacy that may be experienced with regard to the Service. Please refer to our website at www.marconet.com for additional Privacy Policy information.

5.5 Assignment, Successors and Survival. You may not transfer, sell, resell, export, or sublease the Services or Device, this Agreement,  nor any right or obligation arising thereunder, in whole or in part, without the written consent of Marco Technologies LLC, including, without limitation, by operation of law, upon plan of merger, or upon Client being acquired or selling substantially all of its assets. Marco may transfer or assign this Agreement and our rights in the Services and Devices in whole or in part, without notice or your consent.  The provisions of this Agreement that by their nature are intended to survive its termination or expiration shall so survive.

5.6 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Unless expressly provided herein, neither Party shall have the authority to act on behalf of or to bind the other.

5.7 Force Majeure. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Unless expressly provided herein, neither Party shall have the authority to act on behalf of or to bind the other.

5.8 Severability. If any provision of this Agreement is held invalid by any law, order or regulation of any government or other authority, or by the final determination of any court, such invalidity will not affect the enforceability of any other provisions not held to be invalid.

5.9 Headings, Survival and No Waiver. Headings are for convenience only and are not part of this Agreement. Any term in this Agreement by its nature designed to survive completion, expiration, or termination of this Agreement so survive. The failure of Marco at any time to require performance by Customer of any provisions of this Agreement will in no way affect Marco’s right to require performance of that provision nor be construed as a waiver of any Marco right under this Agreement.

5.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument.  The execution and delivery of counterparts may be accomplished by email or facsimile.

6. FUTURE CHANGES TO THIS AGREEMENT

We may change the terms and conditions of this Agreement from time to time. Notices will be given and effective on the date posted on www.marconet.com/terms-conditions/hosted-voice-terms-conditions. Marco will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.

7. PRIVACY

Marco Service utilizes, in whole or in part, use the public Internet and third party networks to transmit voice and other communications. Marco is not liable for any lack of privacy that may be experienced with regard to the Service. Please refer to our website at www.marconet.com for additional Privacy Policy information.

Last Updated: November 18, 2009. Marco is a trademark owned by Marco Technologies, LLC 

8. ACCEPTABLE USE POLICY

8.1 Abuse. You and your End-Users may not use Marco’s network or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including but not limited to:

• Any purpose prohibited by applicable federal, state or local law, rule or regulation
• Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network
• Using the Services for auto-dialing,  continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting
• Use of the Services in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior
• Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network
• Interference with service to any user of the Marco or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks
• Use of an Internet account or computer without the owner’s authorization
• Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting)
• Collecting or using information without the consent of the owner of the information
• Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting
• Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user
• Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool)
• Any conduct that is likely to result in retaliation against the Marco network or website, or Marco’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS)

8.2 Bulk Email. You and your End-Users may not use a Marco email service to send bulk mail. You may use your dedicated hosted system to send bulk mail, subject to the restrictions in this Acceptable Use Policy. You and your End-Users must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, your bulk and commercial email must meet the following requirements:

• Intended recipients have given their consent to receive email from you or your End-Users via some affirmative means, such as an opt-in procedure
• Procedures for seeking consent by you or your End-Users include reasonable means to ensure that the person giving consent is the owner of the email address for which consent is given
• You and/or your End-Users retain evidence of each recipient’s consent in a form that can be promptly produced on request, and you honor recipient’s and Marco’s requests to produce consent evidence within 72 hours of receipt of the request
• You and/or your End-Users have procedures in place that allow a recipient to revoke their consent – such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; you and/or your End-Users shall honor revocations of consent within 48 hours, and notify recipients that the revocation of their consent will be implemented in 48 hours
• You and/or your End-Users must post an email address for complaints (such as marco@marconet.com. This e-mail address is being protected from spambots. JavaScript must be enabled to view it) in a conspicuous place on any website associated with the email, you and/or your End-Users must register that address at abuse.net, and you must promptly respond to messages sent to that address
• You and/or your End-Users must have a Privacy Policy posted for each domain associated with the mailing
• You and/or your End-Users have the means to track anonymous complaints
• You and/or your End-Users may not obscure the source of your email in any manner, such as omitting, forging, or misrepresenting message headers or return addresses. Your email, and that of your End-Users, must include the recipients email address in the body of the message or in the “TO” line of the email
• The subject line of the email must clearly describe the subject matter contained in the email, and the message must include valid contact information
• You and/or your End-Users must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days

These policies apply to messages sent using your Marco services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an email address hosted via your Marco service. In addition, you and your End-Users may not use a third party email service that does not practice similar procedures for all its customers. These requirements apply to distribution lists prepared by third parties.

Marco may test and otherwise monitor your compliance and that of your End-Users with its requirements. Marco may block the transmission of email that violates these provisions. Marco may, at its discretion, require certain customers or End-Users to seek advance approval for bulk and commercial email, which approval will not be granted unless the customer or End-Users can demonstrate that all of the requirements stated above will be met.

8.3 Unsolicited Communications. You and/or your End-Users may not use your service to send email or any other communications to a person who has indicated that they do not wish to receive it. If the communication is bulk mail, then you will not be in violation of this section if you comply with the 48 hour removal requirement described above.

8.4 Newsgroup, Chat Forums, Other Networks. You and/or your End-Users must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.

You and/or your End-Users must comply with the rules of any other network you or your End-Users access or participate in using Marco’s Services.

8.5 Offensive Content. You and/or your End-Users may not publish, transmit or store on or via Marco’s network and equipment any content or links to any content that Marco reasonably believes:

• Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts
• Is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
• Is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes
• Is defamatory or violates a person’s privacy
• Creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement
• Improperly exposes trade secrets or other confidential or proprietary information of another person
• Is intended to assist others in defeating technical copyright protections
• Infringes on another person’s copyright, trade or service mark, patent, or other property right
• Promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking
• Is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Marco
• Is otherwise malicious, fraudulent, or may result in retaliation against Marco by offended viewers or recipients, or is intended to harass or threaten

Content “published or transmitted” via Marco’s network or equipment includes Web content, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the Internet.

8.6 Live Events. You and/or your End-Users may not use Marco’s Services to stream live sex acts of any kind, even if the content would otherwise comply with the AUP. Marco may prohibit the streaming of other live events where there is a special risk, in Marco’s reasonable discretion, that the event may violate the Offensive Content section above.

8.7 Copyrighted Material. You may not use Marco’s network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless:

• You have been expressly authorized by the owner of the copyright for the work to copy the work in
    that manner
• You are otherwise permitted by established copyright law to copy the work in that manner.

8.8 Shared Systems. You and/or your End-Users may not use any shared system provided by Marco in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of Marco email services if it has a negative impact on the mail system, or we may require you to repair coding abnormalities in your code if it unnecessarily conflicts with other customers’ use of the services. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.

8.9 Use of Services Outside the United States. Although we encourage you and your End-Users to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you or your End-Users use the Service outside of the United States or Canada, you and/or such End-Users will be solely responsible for any violations of local laws and regulations resulting from such use.

8.10 Other. You may only use IP addresses assigned to you by Marco in connection with your Marco Services.

You agree that if the Marco IP numbers assigned to your account or those of your End-Users are listed on an abuse database like Spamhaus, you will be in violation of this AUP, and Marco may take reasonable action to protect its IP numbers, including suspension and/or termination of your Service or that of your End-Users, regardless of whether the IP numbers were listed as a result of your actions or those of your End-Users.

8.11 SLA. No credit will be available under a Marco service level guaranty or agreement, if applicable, for interruptions of service resulting from AUP violations.