911 Terms

911 TERMS AND CONDITIONS

MarketSpark provides its 911 Services (defined below) subject to these 911 Terms and Conditions (the “911 Terms”).

1. 911 Definitions. For the purposes of these 911 Terms, the following terms will have the following meanings:
   1. “911 Call(s)” means any call made dialing the digits 9-1-1, regardless of whether such call is made using Basic 911, Enhanced 911, or a PSAP.
   2. “911 Services” means functionality that allows end-users to contact emergency services by dialing the digits 9-1-1.
   3. “Approved Uses” means the provision of Enhanced 911 and/or Basic 911 to (a) End Users who principally utilize such services at such End User’s residence and occasionally at other locations; (b) End Users that are enterprises that use either an on-site or hosted Private Branch Exchange (“PBX”) during customary business hours and should reasonably be expected to have reasonably customary 911 usage patterns due to the nature of such enterprise’s business or operations; for clarity, the provision of Enhanced 911 service and/or Basic 911 service to enterprises that use either an on-site or hosted PBX but operate outside customary business hours, including, without limitation, assisted living facilities, nursing homes and other similar facilities, and to which Sections 1.c.vii and/or 1.d, below, do not apply; or should not reasonably be expected to have reasonably customary 911 usage patterns due to the nature of such enterprise’s business or operations and do not constitute “Approved Uses”; (c) End Users that operate non-emergency call center(s) that should reasonably be expected to have only occasional use of 911 due to the nature of such call center’s business or operations; for clarity, central station alarm and other similar call centers that direct calls to emergency services do not constitute “Approved Uses”; and (d) End Users that operate call center(s) that support the deaf and/or hard of hearing community, which are more commonly known as “relay services.”
   4. “Basic 911” means the ability to route an emergency call to the designated entity authorized to receive such calls serving the Customer’s Registered Emergency Address. With Basic 911, the 911 professional answering the phone will not have access to the End User’s telephone number or emergency address information unless the End User provides such information verbally during the emergency call.
   5. “E911 Authority” means a municipality or other state or local government unit, or an authorized agent of one or more municipalities or other state or local government units to whom authority has been lawfully delegated to respond to public emergency telephone calls, at a minimum, for emergency police and fire services through the use of one TTN. For clarity, an E911 Authority may be an individual PSAP, or an entity responsible for the management and operation of multiple PSAPs within a given geographic area.
   6. “End User” means the individual placing a 911 Call from a Customer’s TTN (defined below).
   7. “Enhanced 911” or “E911” means the ability to route an emergency call to the designated entity authorized to receive such calls serving the Customer’s provided address and to deliver the Subscriber’s telephone number and corresponding Registered Emergency Address or REA information automatically to the 911 professional answering the call.
   8. “P-Asserted-Identity” means a header field used among trusted SIP entities (typically intermediaries) to carry the identity of the user sending a SIP message as it was verified by authentication.
   9. “Private Branch Exchange” or “PBX” means a telephone system within an enterprise that switches calls between enterprise users on local lines while allowing all users to share a certain number of external phone lines.
   10. “Public-Service Access Point” or “PSAP” means an answering location for 911 Calls originating in a given area. The E911 Authority may designate a PSAP as primary or secondary, which refers to the order in which calls are directed for answering. Primary PSAPs answer calls; secondary PSAPs receive calls on a transfer basis. PSAPs are public safety agencies such as police, fire, emergency, medical, etc., or a common bureau serving a group of such entities.
   11. “Registered Emergency Address” or “REA” means the physical address provided by the Customer to be used for E911 and Basic 911, which may be used to dispatch police, fire, emergency medical and other emergency response resources.
   12. “SIP” means Session Initiation Protocol, which is the signaling protocol used between VoIP networks to establish, control and terminate voice calls.
   13. “Subscriber” means an End User or telephone device assigned a TTN.
   14. “TTN” or “MarketSpark Trunk Number” means a United States or Canada telephone number bought by the Customer from MarketSpark and assigned to a trunk for use with MarketSpark’s elastic SIP trunking service.
   15. “VoIP” means Voice over Internet Protocol.
2. 911 Service Description and Use of Service.
   1. E911 Services. With E911, when an End User places a 911 Call, such call will typically be routed to the local PSAP that covers Customer’s REA. In limited circumstances, as further described below in Section 1.c.ii, the 911 Call may be routed to a Regardless of which PSAP the 911 Call is routed to, if and only if the associate trunk is properly provisioned, the 911 professional will receive the (1) TTN associated with the 911 Call and (2) Customer’s REA.
   2. Basic 911. With Basic 911, when an End User places a 911 Call, this call is always sent to the local PSAP serving the End User’s physical location. 911 professionals answering 911 Calls from End Users will not automatically receive the associated TTN or REA because the PSAP to which the 911 Call was routed will not be equipped to receive, capture, or retain End User’s assigned TTN or REA. Accordingly, End Users must provide both call-back and emergency address information to the 911 professionals. If the 911 Call is dropped or disconnected, or if the End User is unable to speak, then the 911 professional will not be able to call the End User back or dispatch emergency assistance to the End User’s physical location. As additional local PSAPs are able to answer E911 calls, MarketSpark will upgrade Customer from Basic 911 to E911 service. MarketSpark is not obligated, however, to notify Customer of the upgrade. In limited circumstances, Customers equipped with Basic 911 may have their calls routed to a PSAP, as further described below.
   3. PSAP Service. Certain TTNs will not have access to either Basic 911 or E911 services. If Customer has TTNs that do not have access to either E911 or Basic 911, 911 Calls will be routed to a PSAP. A 911 professional at the PSAP will ask for End User’s name, telephone number, and location, and then transfer the End User to the appropriate local PSAP or otherwise determine the best way to provide emergency services to the End User. As with Basic 911, 911 professionals answering calls in a PSAP will not receive the End User’s TTN or REA because PSAPs are not equipped to receive, capture or retain this information. Accordingly, the End User must provide this information to the 911 professional. Other reasons that an End User’s 911 Calls may be sent to a PSAP is if (a) there is a problem validating the REA provided by Customer during provisioning, (b) Customer is located in an area that is not covered by the land line 911 network, or (c) Customer has Basic 911 or E911 service but these calls fail to complete and are routed to a PSAP for failover purposes.
3. Notwithstanding any term or condition of the MarketSpark TOU or these 911 Terms to the contrary, Customer will only utilize MarketSpark’s E911 and/or Basic 911 services pursuant to these 911 Terms for Approved Uses.
4. Customer will ensure that End Users do not block their TTN on a device they are using when placing a 911 Call and the TTN shall be made available in the From/P-Asserted-Identity SIP headers of the incoming SIP request.
5. The parties acknowledge and agree that MarketSpark can only provide E911 call routing in territories where the PSAP or E911 Authority offers E911. All other 911 calls made by End Users successfully registered in MarketSpark’s database will be routed using the ten-digit outbound trunks or a 911 professional.
6. Customer will provide MarketSpark with and keep current the correct and valid REA for each TTN for which the Customer desires 911 Services. The REA provided must include sufficient information to enable emergency responders to locate the End User and must comply with all Multi-line Telephone System (“MLTS”) requirements applicable to Customer. For example, one MLTS requirement may be that for each End User and Subscriber located in a multi-floor building, Customer must include a floor or suite number as part of the REA. MARKETSPARK WILL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES, OR ANY OTHER CONSEQUENCES CAUSED BY CUSTOMER’S FAILURE TO KEEP ITS AND ITS END USERS’ REA INFORMATION UPDATED. Customer will provide a TTN with every Subscriber and/or End User call presented to MarketSpark for processing. MarketSpark will have no obligation to provide 911 Services with respect to any Subscriber or End User call that does not include a TTN and will not be liable for any claims arising from any efforts undertaken by MarketSpark to provide 911 Services under such circumstances.
7. Customer Obligations. (i) Customer will be solely responsible for compliance with all applicable laws and/or other governmental requirements imposed or required by any state or other applicable governmental authority; and (ii) Customer will inform any party using (or any party that might use) the 911 Services of the difference between traditional 911 and VoIP 911 service in compliance with all applicable laws and/or other governmental requirements imposed or required by any governmental authority, including, without limitation, the Federal Communications Commission (“FCC”). For clarity, MarketSpark will not be responsible if 911 Service is unavailable due to loss of power; certain features may not be compatible with 911 service; and MarketSpark reserves the right to refuse provisioning or modification of features or service if such provisioning or modification adversely affects 911 service.
8. Customer Testing. Customer will be solely responsible to test the 911 Services after installation and periodically throughout the Term and will notify MarketSpark if Customer notes any issues at any time with the Service. Customer agrees to test 911 Services and share the results of such testing at the request of MarketSpark.
9. Equipment; Connection; Customer’s Responsibilities. MarketSpark will not provide any equipment or any electronic tools, except as may be expressly set forth in writing and executed by Customer and MarketSpark. Customer must connect to MarketSpark’s network in a manner and at locations determined by MarketSpark. Customer will, at Customer’s sole cost and liability as between Customer and MarketSpark, be solely responsible for (i) providing and successfully installing any and all equipment, software and the like necessary for End Users to use any service offered or sold by Customer; and (ii) any and all support for any End User to which Customer offers or sells services. CUSTOMER WILL INDEMNIFY AND HOLD MARKETSPARK HARMLESS AGAINST ANY AND ALL CLAIMS AND EXPENSES RESULTING FROM THE FAILURE OF CUSTOMER OR END USERS TO COMPLY WITH THIS SECTION.
10. Charges and Rates. If applicable, Customer shall pay an additional fee per TTN, as indicated in an SOF, enabled to use the 911 Services (“911 Fee”). All payments made hereunder shall be made pursuant to the payment terms indicated in an SOF.
11. CUSTOMER ACKNOWLEDGES AND AGREES THAT MARKETSPARK’S EMERGENCY SERVICE IS INTERNET-BASED AND THAT INTERNET 911 SERVICES ARE DIFFERENT THAN THAT OF A TRADITIONAL WIRELINE SERVICE. CUSTOMER FURTHER ACKNOWLEDGES THAT THE MARKETSPARK EMERGENCY SERVICE MAY NOT SUPPORT BASIC 911 OR E911 DIALING IN THE SAME MANNER AS A TRADITIONAL WIRELINE PHONE SERVICE. FOR BASIC 911 OR E911 TO BE ACCURATELY ROUTED TO THE APPROPRIATE EMERGENCY RESPONDER, THE CUSTOMER MUST PROVIDE THE REA FOR THE ASSOCIATED TTN.
12. CUSTOMER ACKNOWLEDGES AND AGREES TO INFORM END USERS OF THE POTENTIAL COMPLICATIONS ARISING FROM BASIC 911 OR E911 DIALING. SPECIFICALLY, CUSTOMER ACKNOWLEDGES AND AGREES TO INFORM ALL EMPLOYEES, GUESTS, AND OTHER THIRD PERSONS WHO MAY ALSO BE END USERS THAT BASIC 911 AND E911 SERVICES WILL NOT FUNCTION IF THERE IS A SERVICE FAILURE DUE TO ANY OF THE FOLLOWING CIRCUMSTANCES: (A) POWER FAILURE, (B) SUSPENDED OR TERMINATED BROADBAND SERVICE, (C) SUSPENSION OF SERVICES DUE TO BILLING ISSUES, (D) USE OF CERTAIN FEATURES WHICH ARE NOT COMPATIBLE WITH 911 SERVICES, AND/OR (E) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN. MARKETSPARK RESERVES THE RIGHT TO REFUSE PROVISIONING OR MODIFICATION OF FEATURES OR SERVICE IF SUCH PROVISIONING OR MODIFICATION ADVERSELY AFFECTS THE 911 SERVICES.
13. CUSTOMER FURTHER ACKNOWLEDGES THAT FAILURE TO PROVIDE A CORRECT PHYSICAL ADDRESS IN THE REQUISITE FORMAT MAY CAUSE ALL BASIC 911 OR E911 CALLS TO BE ROUTED TO AN EMERGENCY SERVICE PROVIDER NOT LOCATED NEAR THE END USER. FURTHERMORE, CUSTOMER RECOGNIZES THAT USE OF THE 911 SERVICES FROM A LOCATION OTHER THAN THE LOCATION INDICATED IN THE REA MAY RESULT IN BASIC 911 OR E911 CALLS BEING ROUTED TO AN EMERGENCY SERVICE PROVIDER NOT LOCATED NEAR THE END USER.
14. CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER MARKETSPARK, ITS UNDERLYING CARRIER, AND ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY OR ANSWERING OF 911 SERVICES OR IN RESPONDING TO 911 CALLS, NOR THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OR AGENTS MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY, OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS) ARISING FROM OR RELATING TO THE PROVISION OF ALL TYPES OF EMERGENCY SERVICES TO CUSTOMER AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION ARISING THEREFROM.
15. E911 Indemnification. The following apply in addition to the terms and conditions of the Agreement, including, without limitation, any applicable indemnity provisions: Customer agrees to release, indemnify, defend, and hold harmless MarketSpark, its affiliates, and their respective directors, officers, shareholders, employees, and agents from any claims, suits, proceedings, expenses, losses, liabilities, or damages (“911 Claims”) by any party or parties arising out of the use or attempted use of MarketSpark’s services by any person for purposes of placing 911 Calls, including (i) 911 Claims of infringement or invasion of the right of privacy or confidentiality of any person or persons; or (ii) all other 911 Claims arising out of any act or omission of Customer or any End User of Customer’s services, caused or claimed to have been caused, directly or indirectly, by the installation, operation, failure to operate, maintenance, removal, presence, condition, occasion or use of the 911 Services, features and the equipment associated therewith, or by any services furnished by MarketSpark in connection therewith, including, without limitation, the identification of the TTN, address or name associated with the telephone used by the party or parties accessing 911 Services hereunder, the incorrect routing of any 911 Call, or the mishandling of any 911 Call by 911 professionals. Customer will defend MarketSpark against any such 911 Claims and will pay, without limitation, all litigation costs, reasonable attorney’s fees and court costs, settlement payments, and any damages awarded or resulting any such 911 Claims.
16. E911 Limitation of Liability. The following applies in addition to the terms and conditions of the Agreement, including, without limitation, any applicable limitations of liability: (i) Customer agrees that MarketSpark, its affiliates, and their respective directors, officers, shareholders, employees, and agents will not be liable for any loss or damage sustained by Customer or ANY End Users due to any failure in or breakdown of the communication facilities associated with providing the 911 Services, or for any delay, interruption, or degradation of the Services whatsoever absent gross negligence or willful misconduct by MarketSpark, its directors, officers, shareholders, employees, and agents; (ii) in no event will MarketSpark’s liability to Customer for any loss arising out of the 911 Services provided pursuant to these 911 Terms or any errors, interruptions, defects, failures or malfunctions of the 911 Services provided pursuant to these 911 Terms, including, without limitation, any and all equipment and data processing systems associated therewith, exceed an amount equal to the total Charges paid by Customer to MarketSpark in the twelve (12) months preceding the claim. The parties waive any claim that these exclusions or limitations deprive it of an adequate remedy or cause the Agreement and/or these 911 Terms to fail of its essential purpose; and (iii) Customer further acknowledges, understands and agrees that MarketSpark has no control over how a foreign administration or third party carrier establishes its rules and conditions pertaining to international telecommunications service.