Terms of Service

These Terms and Conditions ("Terms") are entered into between the Customer who has entered into one or more Service Order(s) with Trunking.IO, LLC ("Trunking.io"). In these Terms, Customer and Trunking.io are sometimes referred to jointly as the "Parties" or individually as the “Party."

 

1.            Service Order

 

Trunking.io is selling to Customer telecommunications services and related offerings for resale or immediate end-user deployment (“Services”). Customer will order such services by entering into a Service Order with Trunking.io. If any provision of these Terms conflicts with a term in a Service Order, the conflicting provision of the Service Order shall govern only to the extent of such conflict.

 

2.            Term and Termination

 

2.1         These Terms are effective as of the date stated in the Service Order or, if not stated there, the date on which Customer first uses any of Trunking.io's Services ("Effective Date"). Unless otherwise stated in a Service Order, the term of the Parties’ agreement is for 30 days, which will automatically renew for successive 30-day terms until terminated. Customer must provide 30 days’ written notice to terminate.

 

 

2.2         Upon termination, the obligations of each Party under these Terms shall cease and be of no further force or effect; provided that under no circumstances shall Customer be relieved of its obligation to pay Trunking.io for Services provided or any remaining minimum-purchase commitments.

 

3.            Charges and Payment Terms

 

3.1         Fees and Payment: Customer agrees to and shall pay Trunking.io all rates and charges due as described in the executed Service Order(s). For nonpayment, Trunking.io may suspend Customer's use of the Service until payment is made. Customer cannot withhold, reduce or set-off fees owed to Trunking.io. Interest will accrue at the maximum allowable rate for any late payments.

 

3.2         The fees payable shall be calculated by reference to data recorded by Trunking.io and not based on data recorded by Customer. Trunking.io's Invoices shall be final, conclusive, and binding on Customer, provided that the Customer may dispute an invoice in good faith by providing a written explanation with sufficient details for Trunking.io to investigate the dispute. Such writing must be provided no later than sixty (60) calendar days from the invoice date. Customer's failure to contest a charge within sixty (60) calendar days after Customer's receipt of the corresponding invoice shall create an irrefutable presumption that the invoice is correct and due and owing from Customer. If the dispute resolution is in favor of Trunking.io, the original invoice charge must be paid within three (3) calendar days of Trunking.io's written notice to Customer. Customer must timely pay any undisputed amount while Trunking.io investigates any disputed amount. Undisputed charges that are not timely paid will be subject to interest at the maximum rate allowable by law. No omission or delay by Trunking.io in invoicing any sums shall prohibit Trunking.io from including them in a subsequent invoice, nor shall it relieve Customer of its liability to pay.

 

3.3         Additional Charges, Taxes and Fees: Charges stated in a Service Order exclude sales or use taxes, excise taxes, gross receipts taxes, corporate taxes, franchise taxes, personal property taxes, utility taxes, value-added sales or privilege taxes, other taxes, duties, fees, assessments, pass-through charges, including surcharges levied against Trunking.io for Customer's non-completed toll-free calls not answered by a SIP 200 OK or customer CPE, or other federal, state, county or local governmental charges or regulatory fees of any kind whatsoever, such as Universal Service Fund (USF), e911, LNP, and TRS, along with a regulatory recovery fee designed to collect a reasonable estimate of Trunking.io's estimated costs of legal and regulatory compliance ("Additional Charges"). Customer agrees to pay such Additional Charges. If Customer is exempt from any Additional Charges, Customer must provide a properly executed certificate of exemption for each billing period.

 

3.4         Time Zone, Rate Decks, and MOU Calculation: All charges or settlements will be based on the time recorded by Trunking.io and based on Greenwich Mean Time (GMT/UTC) unless otherwise stated in the Service Order. If applicable, Trunking.io calculates billable call duration from the time it receives the initial "INVITE" packet to the time it receives the final "BYE" packet. All usage is billed in the time increments identified in the applicable Service Order(s) and by the type of traffic at issue, with usage measurement beginning upon the initiation of the first "INVITE" packet. Unless expressly stated to the contrary in any applicable Service Order, and in addition to Trunking.io's right to re-rate traffic that does not meet published traffic criteria, Trunking.io can prospectively adjust Service rates by providing updated pricing information, via email to the Customer Administrator's email address on file, which shall take effect seven (7) calendar days after it is sent to Customer. Customer is responsible for reviewing all such rate notifications. Continued use of the Services constitutes Customer’s acceptance of such updated rates.

 

3.5         Payment Terms: Service charges, taxes and fees are billed on a pre-pay basis. You must provide a valid credit card at the time you sign up for the Service. Trunking.io reserves the right to suspend or terminate your Service if an account does not maintain a valid credit card on file and Customer will be liable for all costs associated with collecting payment. Customer must provide written notice of any disputed charges within seven (7) days after Customer receives its credit card statement. Customer is responsible for all charges accrued on the account, even if Customer did not use or authorize use of the Service.

 

3.6         Suspension of Services: If payment is not received by the due date, Trunking.io may, in its sole discretion, suspend all or any part of the Services without further notice until all outstanding charges are paid in full. Prior to reinstatement, Trunking.io may require: an irrevocable letter of credit or other assurance acceptable to Trunking.io of Customer's ability to pay; a security deposit; and/or payment of the cost to reinstate the Services. If Customer fails to provide such items, Trunking.io may deem the Services cancelled and any prepayments or deposits will be applied to any outstanding balance.

 

3.7         Right to Collect Against Security: If full payment is not made when due, Trunking.io shall have the right, without notice or demand, to make payment from funds other security held by or otherwise available to Trunking.io.

 

3.8         Credit Limit:  If Customer is extended credit, the initial credit limit will be determined by Trunking.io. If Customer's billed and unbilled charges for the Services are projected to exceed its Credit Limit (based on Trunking.io's measurement of Customer's daily usage run rate), or does exceed, its Credit Limit, Trunking.io may require a security deposit equal to the projected Billing Cycle usage run rate. Customer must always maintain a minimum pre-payment balance equal to seven (7) days' worth of estimated usage. If Customer's account reaches a $ 0.00 balance, Trunking.io reserves the right to immediately suspend Services until adequate pre-payment is received.

 

4.            Customer Duties

 

4.1         Customer Administrator: Customer hereby authorizes its designated Administrator to: (i) add Services to its account; (ii) commit Customer to pay for Services; (iii) make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (iv) port telephone numbers to a carrier other than Trunking.io. Trunking.io will initially recognize the individual who signs the Order Form to be the account administrator (“Administrator”). It is then solely Customer’s obligation to designate one or more Administrators in the Trunking.io portal. The Administrator with full administrative control of Customer's account is solely responsible for maintaining current Administrator and other contact information. Trunking.io shall have no liability for Customer's failure to do so.

 

4.2         Compliance with Laws:  Customer agrees to only use the Services in a manner that complies with all applicable laws including, but not limited to, those related to copyright and other intellectual property rights, call recording, call monitoring, call interception, direct marketing, and telemarketing. Customer agrees not to use the Services that in any way interferes with the users, services, or equipment of Trunking.io. In addition to any other remedies available to Trunking.io, failure to comply with this section can result in immediate suspension or termination of the Services.

 

4.3         Customer agrees to use the Services in accordance with Trunking.io's User Guidelines. If Trunking.io has reason to believe Customer is violating the User Guidelines or making improper use of the Services, Customer will cooperate in any resulting investigation by Trunking.io, third parties, or government authorities and any government determinations will be binding on Customer. If Customer fails to cooperate in any investigation, Trunking.io may suspend or terminate the Service without further liability to Trunking.io. Further, Trunking.io may modify or suspend the Service as necessary to protect its networks or customers, or to comply with any law. Customer may be subject to fines and other penalties passed through Trunking.io by governmental authorities, carriers or other third parties. It is Customer’s sole responsibility to ensure its end users agree to and comply with these Terms and the User Guidelines, and Customer shall be responsible for end users’ violation thereof. Customer authorizes Trunking.io or a third party working on Trunking.io’s behalf to monitor any Content of Customer and its end users to ensure compliance with all applicable laws and these Terms.

 

4.4         User Guidelines

 

4.4.1     Prohibited Uses: Customer shall not resell, transfer, or make a change to the Services or Trunking.io Equipment without the advance written permission of Trunking.io. Customer shall not interfere with other users, the Services, or equipment of the network, or use the Services in any way for (or as part of) any commercial service or application distributed or sold by Customer. Customer may not attempt to, in conjunction with any device, software program, or service, circumvent technological measures employed to control access to the Services. Without limiting the foregoing, neither Customer nor any end user of the Services may use the Services in any of the following ways:

 

• in any fraudulent, malicious, deceptive, dishonest, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, or indecent manner that may result in civil or criminal liability or otherwise violate any law;

 

• to harvest or otherwise collect information about others, including without limitation email addresses or personally identifiable information, without their consent;

 

• to intentionally transmit or store any material that contains viruses, malware, or any other programs or materials that may be harmful or dangerous;

 

• to violate the foreign or domestic IP Rights or proprietary rights of any party;

 

• to violate the right of privacy, personality, or publicity of any party;

 

• to violate any law regarding the transmission of technical data or information or software through the Services; or

 

• in any manner that interferes with Trunking.io’s ability to provide products or services to other customers;

 

4.4.2 Prohibited Acts: You represent, warrant, covenant, and agree that neither you nor any end user shall do any of the following:

 

• transmit, upload, distribute, or store any programs or materials that may be harmful to the operation of the Services or another party’s computers, devices, equipment, systems, or networks;

 

• interfere with or disrupt networks or systems connected to the Services;

 

• use any Trunking.io mark without Trunking.io’s express, prior written permission;

 

• display or use of any third-party mark without the prior, written consent of the third party;

 

• undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or any associated software and hardware;

 

• defeat, disable, or circumvent any firewall or similar protection mechanism related to the Services;

 

• intercept, monitor, modify, or redirect any communication or data used by Trunking.io, or causing any product to connect to any computer server or other device not authorized by Trunking.io;

 

• allow any third party to use any software commands for maintenance or repair of any software or hardware used with the Services; or

 

• violate or interfere with Trunking.io’s IP Rights.

 

4.5         Fraudulent Use: Customer bears the risk of loss and assumes all liability arising from prohibited, unauthorized, or fraudulent usage of Services by Customer and its end users. Customer is solely responsible for the use of the Services by all end users whom Customer permits to use the Services. Any such prohibited, unauthorized, or fraudulent use by or through Customer's account is a material breach of the Agreement by Customer. Customer is solely responsible for securing all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (MAC) address of telephones used by Customer or its end users. Customer acknowledges that placing telephones on a publicly accessible IP address or a publicly accessible network will subject it and its end users to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent usage or calls occurred. If Trunking.io discovers potentially fraudulent usage, Customer hereby consents to Trunking.io taking actions it deems necessary (including blocking access to particular calling numbers or geographic areas), without notice to Customer if necessary or appropriate, to prevent such apparently fraudulent usage from further occurring. Customer acknowledges and agrees that it is solely responsible for all charges incurred in connection with the use of the Services associated with Customer's account, whether authorized, unauthorized, fraudulent or otherwise, and that Trunking.io: (i) has no duty to investigate the authenticity of usage charged to Customer's account, (ii) has no duty to take action to prevent fraudulent usage from occurring in connection with Customer's account, and (iii) is not liable for any fraudulent usage billed to Customer's account. Trunking.io shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any calls, messages or other content that it reasonably believes contains inappropriate or likely unlawful content or traffic, or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry. Any use found to be inconsistent with the restrictions of Section 4.4 and Section 4.5 may result in suspension and/or termination of the Services without prejudice to any other Trunking.io rights or remedies.

 

5.            General Representations

 

Customer hereby represents and warrants that it currently has and will maintain throughout the term of these Terms all necessary licenses, registrations, permits, and permissions, and is and will remain in full compliance with all applicable federal and state regulatory bodies' laws and rules relative to the receipt of the voice service-related services contemplated under these Terms, including, without limitation, with respect to voice service provider customers, FCC registration, maintaining current 499 filings with the FCC and USAC, compliant robocall mitigation database ("RMD") filings, and compliance with the FCC's Know Your Customer ("KYC") and robocall mitigation practices under the FCC's rules and for end users, complying with all laws applicable to your traffic, including, without limitation, the Telephone Consumer Protection Act, 47 U.S.C   227 and its implementing regulations, 47 C.F.R.  64.1200 and FCC and controlling judicial opinions. Customer represents and warrants that it will secure its voice service provider customers' commitment to and compliance with regulatory compliance obligations that are at least as strict as the obligations herein as a condition of receiving any services from Customer in which any Trunking.io Services are included. Customer represents and warrants that it will advise Trunking.io, in writing, within 5 business days if any of the foregoing representations is no longer fully accurate.

 

6.            Limitation of Liability

 

IN NO EVENT SHALL TRUNKING.IO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER TRUNKING.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS, OR LOST REVENUE. UNDER NO CIRCUMSTANCES WILL TRUNKING.IO BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S OR END USER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TRUNKING.IO IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABLITY FOR, RELATED TO, OR ARISING OUT OF, CUSTOMER’S FAILURE TO (A) ENTER THE CORRECT INFORMATION WHILE PROGRAMMING THE EQUIPMENT, (B) TEST THE FUNCTION AND RANGE OF THE EQUIPMENT AND SERVICES, (C) CHARGE THE EQUIPMENT, IF APPLICABLE, (D) FAILURE TO INSTALL, CONFIGURE, MAINTAIN OR OPERATE THE EQUIPMENT IN COMPLIANCE WITH APPLICABLE REGULATORY OR LEGAL REQUIREMENTS, (E) PROVIDE BACKUP POWER, INTERNET OR CELLULAR SERVICE, OR (F) UNINTENDED USE OF THE EQUIPMENT OR SERVICES AS WE DETERMINE IN OUR SOLE DISCRETION. TRUNKING.IO SHALL HAVE NO LIABLITY WHATSOEVER FOR ANY DAMAGES RESULTING FROM FORCE MAJEURE EVENTS; LOSS OF POWER TO CUSTOMER; INSTALLATION WORK PERFORMED BY CUSTOMER OR THIRD PARTIES; OR ANY ACT OR OMISSION BY CUSTOMER OR ANY PERSON USING THE EQUIPMENT OR SERVICES PROVIDED TO CUSTOMER; EQUIPMENT, NETWORK OR FACILITY FAILURE; AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR, OR OTHER THIRD PARTY, INCLUDING BLOCKING OF PORTS BY CUSTOMER’S INTERNET SERVICE PROVIDER OR OTHER IMPEDIMENT TO THE USE OF THE EQUIPMENT OR SERVICES CAUSED BY ANY THIRD PARTY; OR ANY OTHER CAUSE THAT IS BEYOND TRUNKING.IO’S REASONABLE CONTROL. TRUNKING.IO’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER, INCLUDING ACTS OR OMISSIONS RELATED TO THE SERVICES OR 911 DIALING, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER IN THE PRECEDING TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this Section may not apply to Customer. However, and notwithstanding the provisions of this Section, the parties agree that neither Party will be liable for breach of contract damages that the breaching Party could not reasonably have foreseen on entry into this Agreement. No action against either Party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.

 

7.            Warranty Disclaimer

 

Except as expressly provided in this Agreement, the Services are provided on an “AS IS,” as available basis. Other than as expressly provided herein, TUNKING.IO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY IP RIGHTS TO THE MAXIMUM EXTENT PERMITTED BY LAW. Trunking.io does not warrant that the Services will meet the Customer’s requirements or that the operation of the Services will be secure, uninterrupted, or error-free. Further, Trunking.io does not warrant that all errors in the Services can be corrected.

 

8.            Indemnification

 

Customer will indemnify, defend, and hold harmless Trunking.io and its directors, officers, employees, partners, members, managers, agents, affiliates (and the directors, officers, employees and representatives of such affiliates), parent (and the directors, officers, employees and representatives of parent), representatives, predecessors, successors, and permitted assigns from and against all claims, lawsuits, actions, demands, penalties, fines, sanctions, damages, losses, costs, expenses, and attorneys' fees arising out of or relating to: (i) Customers’ or its end users’ alleged use or misuse or acts or omissions relating to Trunking.io's Services, including, without limitation, all traffic Customer engages Trunking.io to carry or process; (ii) any allegedly wrongful acts, errors, negligence, misconduct or omissions or the alleged breach of any term or condition of these Terms by Customer or its agents, customers, end users, or representatives, including the representations and warranties contained herein; (iii) any violation of law or applicable standards or guidelines by Customer or its end users; (iv) any claims for infringement of any intellectual property rights arising from or in connection with the Customer’s or its end users’ use of the Services; or (v) any claim by any employee or invitee of Customer or its end users.

 

9.            Privacy & Security

 

Trunking.io cannot guarantee that Customer’s communications and data are completely secure, including those using the public internet or third-party networks. It is Customer’s responsibility to protect the security of its personal information, login information, content, and unique identifiers (including associated passwords). Please refer to Trunking.io’s Privacy Policy for additional information.

 

10.         Service Changes

 

Customer understands and agrees that Trunking.io may modify the Service(s) at any time, for any reason. Trunking.io may, but has no obligation to, inform Customer of modifications.

 

11.         911, Regulatory, and Usage Standards

 

11.1       Wholesale 911 Services. Voice service Provider customers understand and acknowledge that Trunking.io's Services are primarily offered as a wholesale service to other voice service providers, and as such, 911, E911, emergency calling, and other PSAP operator-related services ("911 Services") are not supported by default under these Terms; Customer must enter into a Service Order that specifically provides for such Service. Unless and until the Parties enter into a Service Order that specifically contemplates Trunking.io's provision of such 911 Services, any voice service provider Customer agrees that it will not send any such 911-related traffic to Trunking.io for carriage or handling. Trunking.io reserves the right to reject any such traffic, and Customer shall defend, indemnify, and hold Trunking.io harmless from any costs, damages or losses incurred in connection with Customer passing such traffic to Trunking.io. In the event that the Parties enter into any Service Order that contemplates Trunking.io's provision of any 911 Services, Customer agrees to fully and completely comply with all applicable laws and rules relating to the carrier Customer's voice services, including, without limitation, those in 47 C.F.R. Section 9.11, including, without limitation, the duty to specifically advise every Customer subscriber prominently and in plain language, of the circumstances under which E911 service may not be available through the interconnected VoIP service or may be in some way limited by comparison to traditional E911 service. Such circumstances include, but are not limited to, relocation of the end user's IP-compatible CPE, use by the end user of a non-native telephone number, broadband connection failure, loss of electrical power, and delays that may occur in making a Registered Location or dispatchable location available in or through the ALI database, and to distribute to end user subscribers warning stickers or labels warning subscribers if E911 service may be limited or not available, and instructing the subscriber to place them on or near the equipment used in conjunction with the interconnected VoIP service; or to notify subscribers, prior to the initiation of that subscriber's service, by other conspicuous means if E911 service may be limited or not available, and keep appropriate records of such disclosures. Customer further agrees to contractually require its end user subscribers to hold harmless Trunking.io from any acts or omissions it may undertake relative to its provision of 911 Services hereunder.

 

11.2       End User 911 Services

 

11.2.1   Non-Availability of Traditional 911 or E911 Dialing Service:  At Trunking.io, 911 dialing service operates differently than traditional 911 service. You agree to inform any business invitees, guests, and other third persons who may be present at the physical location where you utilize the Services of the non-availability of traditional 911 or E911 dialing from your Trunking.io Services and equipment. The physical location where you advise us you are utilizing the Service for each phone number that could make a 911 emergency call must be registered as the actual physical street address where your calling equipment is located--and thus where you would expect emergency personnel to come if you called 911--not a P.O box, mail drop, or similar address.

 

11.2.2   Description of 911-Type Dialing Capabilities Activation Required

 

• Trunking.io offers 911-type dialing service in certain areas within the U.S. that differs from traditional 911 services. When you dial 911, your call is routed from the Trunking.io network to its 911 service provider to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the physical address that you listed for that phone number at the time of activation (or updated thereafter). If you change your 911 address using the Trunking.io online user interface, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information.

 

• Calls dialed by handset extensions included in your account with Trunking.io will be routed from the Trunking.io's network to Trunking.io's 911 service provider to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. If your equipment is used in multiple locations, you may choose to allow administrators on your account to create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided, however, that your system administrator has previously activated that functionality. It is your sole responsibility to make any necessary or appropriate changes and to ensure that all business invitees, residents, guests and other third persons who may be present at the physical location(s) where you utilize the Services are aware of this option. For any Trunking.io extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.

 

11.2.3   Service Outages: You acknowledge and agree that (i) 911 dialing does not work in the event of a power failure or disruption. If an interruption in the power supply occurs, the Services and 911 dialing will not work until power is restored and you may have to reset or reconfigure equipment prior to using the Services or 911 dialing; (ii) service outages or suspension or termination of service by your broadband provider and/or ISP will prevent all Services, including 911 dialing, from working; (iii) service outages due to suspension of your account as a result of billing issues will prevent all Services, including 911 dialing, from functioning; (iv) if there is a service outage for any reason, such outage will prevent all Service, including 911 dialing; and (v) Trunking.io's liability is limited for any Services outage and/or inability to dial 911 from your line or to access emergency service personnel.

 

11.2.4   Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911:  You acknowledge and agree that (i) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (ii) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider's facilities when such calls are routed using traditional 911 dialing; and (iii) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.

 

11.2.5   Automated Number Identification: Technical limitations may make it impossible for the PSAP and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture, or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Trunking.io's system is configured to send automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (i) the call is unable to be completed; (ii) the call is dropped or disconnected; (iii) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.

 

11.2.6   Limitation of Liability and Indemnification Related to 911 Services.:  Trunking.io relies on third parties for the forwarding of information underlying such 911 routing. Trunking.io and its third-party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. Trunking.io and its officers, directors, employees, contractors, affiliates (and the directors, employees, officers and representatives of such affiliates), parent (and the directors, employees, officers and representatives of parent), representatives, predecessors, successors, and permitted assigns may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to Trunking.io's 911 dialing. You further agree to defend, indemnify and hold harmless Trunking.io, its officers, directors, employees, affiliates (and the officers, directors, employees and representatives of such affiliates), parent (and the officers, directors, employees and representatives of parent), agents and its third-party provider(s) from any and all third-party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of, or resulting from (i) your failure to correctly activate 911 calling; (ii) your provision to Trunking.io of incorrect information in connection with your 911 calling or service; (iii) misrouted 911 or E911 calls; or (iv) the absence, failure or outage of the Services, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.

 

11.2.7   Traffic Hygiene: Trunking.io may from time to time provide specific requirements with respect to call and message data and analytics that are intended to preserve the integrity, maintenance, and/or compliance of Trunking.io's network and its Trunking.io networks. Trunking.io reserves the right to reject calls and/or messages that do not conform to its requirements. Unless expressly superseded by a contrary provision in an applicable Service Order, the following conditions and minimum commitments apply to the following service categories:

 

(a)  DID usage: All DIDs leased from Trunking.io to Customer will be maintained and paid for by Customer for a minimum period of six (6) months, even if Customer does not use the DID for the full six-month period.

 

(b)   Traffic Analytics:  All Customer traffic provided to Trunking.io hereunder in connection with a Conversational Traffic product must, as averaged each calendar week, meet the following minimum requirements: (i) answer seizure ratio must exceed 60%; (ii) average call duration must exceed 60 seconds; and (iii) 90% of all completed calls must be at least six seconds in duration. If Customer's traffic in any given study period does not meet those criteria, Customer understands and agrees to pay the then-applicable rates for Trunking.io's Short-Duration-Traffic services for all such traffic, even if no Service Order was in place for such traffic. If Customer's traffic fails to meet the traffic-quality conditions in this paragraph, Customer further understands and agrees that Trunking.io may, at its election and in its sole discretion, take any or all of the following actions: (i) apply then-applicable short-duration-traffic rates to any such non-conforming and any additional traffic Customer provides Trunking.io hereunder, (ii) reroute the traffic to short-call-duration routing trunks; (iii) adjust the Service and billing-and-payment cycles from monthly to weekly or daily, and/or (iv) suspend Services pending its investigation into why Customer's traffic did not meet the foregoing minimum conditions in this paragraph.

 

11.2.8   SMS/MMS:  In addition to any terms and conditions of any applicable Service Order, Customer agrees to use any Trunking.io SMS/MMS-related Services (i) in compliance with applicable federal and state law, then-applicable CTIA and wireless carrier guidelines; (ii) to provide full and complete information to register and maintain campaigns with the applicable parties (e.g., carriers, The Campaign Registry, aggregators, etc.); and (iii) to not use any such services in connection with traffic related to any prohibited content, so-called "S.H.A.F.T" messages (messages that pertain to Sex, Hate, Alcohol, Firearms or Tobacco); high-risk financial services (e.g., payday loans), debt-collection or forgiveness, third-party lead-generation services, illegal services (e.g., cannabis), gambling, or other prohibited content. Customer understands and agrees that any violation of these provisions could result in the suspension or termination of all SMS/MMS-related Services, including services to end users or customers whose traffic did not violate such rules or guidelines.

 

11.2.9   Porting:  Customer grants Trunking.io authority to initiate porting requests on Customer's behalf as Trunking.io determines is reasonably necessary for the provision of the Services. Trunking.io may place Customer's phone numbers with a new carrier or numbering-resource host without further notice to Customer, provided, however, that Trunking.io will not place Customer's assigned phone numbers, or otherwise enter into any agreement, with any numbering-resource host that would directly cause Customer's loss of its phone numbers. Upon receipt of appropriate documentation, including a complete and duly executed LOA, Trunking.io is authorized to initiate changes to telephone service and for the purpose of obtaining service records, to initiate or terminate ports, or to make changes to the ways in which Customer's telephone numbers are routed to the extent necessary for the provision of the Services and as duly requested by Customer. Customer further agrees to pay Trunking.io a port-out fee of $3 per DID for all port-out requests. Customer agrees to release and hold Trunking.io harmless from all costs, claims, and damages of any kind, including, without limitation, direct, consequential and exemplary or punitive damages, in the event of any porting-related errors or omissions, including in circumstances beyond Trunking.io's reasonable control, that result in porting-related service interruption or delays, delays in porting, or lost telephone numbers.

 

11.2.10 STIR/SHAKEN:  Voice service provider customers understand and agree that you will comply with applicable voice service industry rules, including, without limitation, 47 C.F.R.  64.6301 et seq., and guidelines concerning the signing and authentication of any traffic you send and receive in connection with the Services, and consent to Trunking.io's attestation, at the appropriate level per ATIS guidelines and applicable law, of any unsigned traffic it receives in connection with Customer's use of the Services. If Customer and Trunking.io enter into any Service Order under which Trunking.io signs or attests any of Customer's traffic, the terms and conditions of such Service Order shall control, subject to applicable law and industry guidelines vis-a-vis such third-party delegate attestation services.

 

11.2.11   Industry Traceback Cooperation:  Trunking.io works cooperatively with the communications industry, law enforcement, governmental entities, regulatory bodies, their designees, including the Industry Traceback Group ("ITG"), and other carriers to address alleged issues related to illegality, fraud, and abuse of voice service providers' voice services ("Traceback Requests"). In accordance with laws applicable to Trunking.io and the Services, and notwithstanding anything to the contrary contained in the Agreement between the Parties, Customer understands and agrees that Trunking.io may disclose Customer's information and such disclosure will not be a violation of these Terms or applicable law, including 47 U.S.C. Section 222. Customer agrees and warrants that it will participate in any traceback efforts by the ITG or other pertinent authority without the need for a subpoena or formal legal demand. Customer agrees that it will timely respond to Traceback Requests in good faith and shall indicate if it is in the call path as (i) the originating provider of the calls (i.e., Customer received the calls from Customer's end user) or (ii) an intermediate provider (i.e., Customer received the calls from another voice service provider), and if so, whether Customer was acting as a gateway provider for such traffic. The response shall also, if and as requested, identify the source of the calls, on-file KYC data, the results of Customer's investigation into such traffic, and any other information reasonably requested by Trunking.io in connection with such Traceback Requests, inquiries and investigations.

 

12.         Miscellaneous

 

12.1 Marketing: Customer will not publish or use any advertising, sales promotions, press releases or other publicity which uses the name, logo, trademarks, or service marks of Trunking.io without prior written approval. Customer consents to Trunking.io using its name and logo to identify it as a customer of Trunking.io, including on Trunking.io’s website and in marketing materials.

 

12.2 Notices: Notices to Trunking.io, or notices to you regarding breach or termination of this Agreement, must be in writing and will be deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to the other Party at the addresses provided in the Sales Quote or otherwise designated in writing.

 

12.3       Entire Agreement: These Terms, together with Trunking.io’s Privacy Policy, all applicable Exhibit(s) and Service Order(s), constitutes the entire understanding and agreement between the Parties and supersedes and renders null and void all prior or contemporaneous understandings or agreements. These Terms will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. Unless otherwise prohibited by applicable law or as otherwise expressly modified in a Sales Quote, Trunking.io can change these Terms at any time, with or without notice. Changes may include features, prices, fees, rates, new or modified policies, and usage limits. Trunking.io may, without prior notice, discontinue features of the Services to you or to users generally or the Services themselves. To the extent notice is provided, it may appear on the Trunking.io website, on your account web page, or in another form of communication. The changes will become effective and will be deemed accepted by Customer immediately upon Customer’s continued use of the Services.

 

12.4       Consent to the Used of Electronic Signatures and Records: These TermsTrunking.io provides access to its Services online, which may require Customer to enter into agreements or receive notices electronically. Accordingly, Customer acknowledges that by clicking “I Agree” or “I Accept” anywhere on the Trunking.io’s website it agrees: (a) to conduct electronically the particular transaction into which it is entering, including without limitation, entering into these Terms and any Service Orders or Exhibits; (b) that Customer has read and understands the electronic copy of contracts, notices, and records, including, without limitation, these Terms and any Service Orders, and any policies referred to herein; (c) to be bound by the terms of the particular transaction into which Customer has entered; (d) that Customer is capable of printing or storing a copy of electronic records of transactions into which it enters including, without limitation, these Terms and any Service Orders or Exhibits hereto; and (e) to receive information electronically about the Services and other records into which Customers enters including, without limitation, these Terms.

 

12.5       Severability: If any provision of these Terms is determined to be invalid or unenforceable in any respect or for any reason, the validity and enforceability of such provision in all other respects and the validity and enforceability of the remaining provisions of these Terms will not be impaired.

 

12.6       Assignment:  Neither Party shall, without the prior written consent of the other Party, assign or transfer any of the rights or obligations under these Terms. Trunking.io may, however, assign or transfer the Agreement in whole or in part to any Affiliate or successor in interest of Trunking.io's, provided that it shall promptly give written notice of such assignment or transfer to Customer. An "Affiliate," as used herein shall mean any individual, partnership, corporation, limited liability company, trust or other entity or association, directly or indirectly, through one or more intermediaries controlling, controlled by, or under common control of Trunking.io.

 

12.7       Force Majeure:  Neither Party will be liable for any failure or delay in its performance under the Agreement (except for Customer’s obligation to make payment), due to any cause beyond its reasonable control, including (but not limited to), acts of nature, strikes, war, invasion, insurrection, hostilities (whether or not war is declared), riots or other civil unrest, acts or threats of terrorism, cyber-attack (hacking and DDOS), natural disasters, pandemic, epidemic, quarantine restriction or state(s) of emergency, any action(s), order, law, regulation or restriction of any governmental or regulatory body (including, but not limited to, the denial or cancellation of any necessary license or permit, actions, embargoes or blockades), network or facility failure, shortage, upgrade, relocation or modification; or any act or omission of any underlying carrier, service provider, vendor, or other third party, including any impediment to the usage of the Services caused by any third party, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.

 

12.8       Governing Law: This Agreement and the relationship between Trunking.io and Customer are governed by the laws of the state of California 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 the arbitration requirement in these Terms, such action shall only be brought in Santa Clara County, California. Customer submits to the personal and exclusive jurisdiction of the courts located within the state of California and waives any objection as to venue or inconvenient forum.

 

12.9       Mandatory Binding Arbitration; Waiver of Jury Trial: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM TRUNKING.IO. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Each Party will be responsible for paying any JAMS filing, administrative and arbitrator fees. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Customer and Trunking.io further agree that each may bring suit in court to enjoin a breach of confidentiality or infringement or other misuse of IP Rights. Notwithstanding anything to the contrary in the Agreement, Trunking.io may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged breach of confidentiality or infringement of Trunking.io’s or any other person or entity’s IP or proprietary Rights. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS TRUNKING.IO AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND TUNKING.IO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

12.10    Independent Contractors:  The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.

 

12.11    No Waiver: No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the Party against whom it is asserted. Any such waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing waiver.

 

Revised October 31, 2024