ITS Omnicom OmniTalk™ VoIP Service
These Terms and
Conditions constitute the agreement (the “Agreement") between ITS
Omnicom (“us,” “our” or “we”) and the user ("you,"
"user" or "customer") of ITS Omnicom’s OmniTalk
residential and business communications services and any related products or
services (“Service"). For purposes of the Agreement, "you" means
the customer, defined as either (i) the person identified in our account
records as responsible for payment of all charges; or (ii) any other person
with actual or apparent authority to represent that person or to use the
service(s).
BY ENROLLING IN,
USING, OR PAYING FOR THE SERVICE(S), YOU AGREE TO THE PRICES, CHARGES, TERMS
AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE PRICES, CHARGES,
TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES
IMMEDIATELY BY CONTACTING US AT THE ADDRESS ON YOUR EMAIL PURCHASE CONFIRMATION
OR YOUR INVOICE FOR FURTHER INSTRUCTIONS.
The Agreement
governs the Service and any devices, such as the Analog Telephone Adapter
(“ATA”) or any other IP connection device ("Device" or
"Equipment"), used in conjunction with the Service. By activating the
Service, you acknowledge that you have read and understood, and that you agree
to, the terms and conditions of the Agreement, and you represent that you are
of legal age to enter the Agreement and become bound by its terms.
We may change the
Terms and Conditions of the Agreement from time to time. Notices will be
considered given and effective on the date posted at www.Omni-Talk.com
(“service website”). The Agreement posted there supersedes all previously
agreed-to electronic and/or written Terms and Conditions.
The rates and
charges for the Service, which may be found at the service website, are
effective as of April 1, 2006, and are subject to change. For the most current
rates and charges, the most current version of the Agreement, or if you have
questions about your Service, please visit our service website (see Rates and
Terms & Conditions links) or call us at the tollfree number listed on the
first page of your invoice. All copyrights and service marks are our exclusive
property of unless otherwise specifically attributed otherwise.
II. EMERGENCY SERVICES - 911 DIALING
A. Possible
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
certified Devices or Equipment. The 911 Dialing feature cannot be used in
conjunction with a Softphone or Virtual Number. Our 911 Dialing feature is not
automatic; you must take the 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 Service 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 Service’s 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 our customer care department at
1-800-878-4487.
B.
Registration of Physical Location Required. For each phone number that you use for the Service, you
must register with us the physical location where you will be using the Service
with that phone number. When you move the Device to another location, you shall
register your new location. If you do not register your new location, any call
you make using the 911 Dialing feature may 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
following the instructions from the "911" registration link on your
web-based Service Control Panel page. 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.
C. 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 a confirmation from us that the
911 Dialing feature has been activated for that phone line.
D. 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 that
center. When the center receives your call, the operator may not have your
address or your phone number. You must therefore be ready to provide your
address and phone number in order to get 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.
E. Service
Outages.
(a) Service Outages
Due to Power Failure or Disruption. 911 Dialing will 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 Account. Service outages due to
suspension or termination of your account will prevent the 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 we are 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. 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.
G. 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.
H. 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 tell the operator your phone number, or if the Service is not
operational for any reason.
I. 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 tell the operator your location, or if the
Service is not operational for any reason.
J. Disclaimer of
Liability and Indemnification. We do
not have any control over whether, or the manner in which, calls using our 911
Dialing service are answered or addressed by any local emergency response
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 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 we nor our officers
or employees may be held liable for any claim, damage, or loss, and you hereby
waive any and all such claims or causes of action, arising from or relating to
our 911 Dialing service unless such claims or causes of action arose from our
gross negligence, recklessness or willful misconduct. You shall defend,
indemnify, and hold harmless, our officers, directors, employees, affiliates
and agents and any other service provider who furnishes services to you in
connection the Service, from any and all claims, losses, damages, fines,
penalties, costs and expenses (including, without limitation, attorneys’ fees)
by, or on behalf of, you or any third party relating to the absence, failure or
outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing
calls, and/or the inability of any user of the Service to be able to use 911 Dialing
or access emergency service personnel.
K.
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.
III. SERVICE
Term
Service is offered
for a term that begins on the date that we activate your Service (the
“Activation Date”) and ends on the last day of that same calendar month or the
last day of the term entered into.
Month-to-month: Subsequent terms of this Agreement automatically
renew on a calendar monthly basis without further action by you unless you give
us written notice of non-renewal at least fifteen [15] days before the end of
the month in which the notice is given. You are purchasing the Service for full
monthly terms, meaning that if you attempt to terminate the Service prior to
the end of a monthly term, you will be responsible for the full month's charges
to the end of the then-current term plus any unbilled charges, all of which
immediately become due and payable. You may cancel the Service for any reason
at any time. There is no disconnect fee.
Yearly Agreements: Expiration of the term or termination of Service
does not excuse you from paying all unpaid, accrued charges due in relation to
the Agreement. Upon expiration of the initial term, the service will continue
on a month-to-month basis at the existing rates unless or until a new term
arrangement is entered into.
Business Use
of Service and Device - Prohibition on Resale and Definition of Proper Use
If you have
subscribed to one of our Business Plans, the Service and Device are provided to
you as a business user. This means that you are not to resell or transfer the
service or device to any other person for any purpose. You agree that
subscribing to the Business Plan does not confer the right to use the service
for auto-dialing, continuous or extensive call forwarding,
telemarketing, fax broadcasting or fax blasting. We reserve the right to
immediately terminate, modify or upgrade your Service, if we determine, at our
sole discretion, that the Service is being used for any of these.
If you have
subscribed to one of our Residential Plans, the Service and Device are provided
to you as a residential user only. This means that you are not to use the
Service for business purposes, including, but not limited to auto-dialing,
continuous or extensive call forwarding, telemarketing, fax broadcasting or fax
blasting, or making more than fifty percent (50%) of your calls during weekday,
daytime hours (Monday through Friday, 8AM to 6PM your local time). We
reserve the right to immediately terminate, modify or upgrade your Service, if
we determine, in our sole discretion, that the Service is being used for
business purposes.
E. Notice of Rate
Changes
It may be necessary
to change the prices and charges for the Services from time to time due to
industry or network circumstances. We may increase or decrease prices and rates
without providing advance notice. Changes to any rates, charges, terms or
conditions in the Agreement will be published at our service web site and will
be immediately incorporated by reference into this Agreement.
F. Rounding
Policy
For billing
purposes, the length of each metered call is rounded as described in each
Calling Plan. If the computed charge for a call includes a fraction of a cent,
the fraction is rounded up to the nearest whole cent. If the computed charges
for taxes and surcharges include a fraction of a cent, the fraction is rounded
up to the nearest whole cent.
G. Calls to
International Mobile Telephones; International Special Services Calls
Our advertised rates
for international calls are generally the rates charged for calls to landline
telephones. Calls to international cellular (mobile) telephones, or to
international telephone numbers considered to be special services calls, are
charged a different (usually higher) rate than calls to landline telephones in
that same country or jurisdiction. The rates you will be charged for such calls
are set forth in the calling plan rate tables and are typically designated by a
“mobile” or “special services” notation.
H. Timing of
Calls
Generally, timing of
metered calls begins when the called party or an automated answering device
(such as an answering machine or a facsimile machine) answers the call, and
ends when one of the parties disconnects from the call. However, some foreign
carriers (with whom we must interconnect in order to terminate calls to foreign
countries) designate a call as “answered” when the called party’s line rings or
after a certain number of rings, and will charge us for a completed call. In
these situations, we will charge you for these calls as if they were answered
by the called party.
I. Use of
Service and Device by Customers Outside the United States and Canada
We provide the
Service and Equipment to you for use of the Service within the United States
and Canada and for placing calls to other countries. If you take or send the
Equipment to a country other than the United States or Canada and the Service
is used by you or another party from there, you/they do so at your/their own
risk, including the risk that such activity violates local laws in the country
where you/they do so. You are liable for any and all use of the Service and/or
Device by any person making use of the Service or Device provided to you by us.
J. Loss of
Service Due to Power Failure
The Service does not
function without power. Should there be an interruption in the power supply,
the Service will not function until power is restored. A power failure or
disruption may require you to reset or reconfigure equipment before using the
Service.
K. Copyright
/ Trademark / Unauthorized Usage of Device, Firmware or Software
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 service website(s)
are protected by trademark, copyright or other intellectual property laws and
international treaty provisions. All websites, corporate names, service marks,
trademarks, trade names, logos and domain names (collectively
"marks") belonging to us are and shall remain our exclusive property,
and nothing in this Agreement shall
grant you the right or license to use such marks. You acknowledge that you are
not given 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 (without making any modification thereto) strictly in
accordance with the terms and conditions of this Agreement, and that the Device
is exclusively for use in connection with the Service. If you decide to use the
Service through an interface device not provided by us, which we reserve the
right to prohibit in particular cases or generally, you promise that you
possess all required rights, including software and/or firmware licenses, to
use that interface device with the Service and you will indemnify and hold us
harmless against any and all liability arising out of your use of such
interface device with the Service.
L. Tampering with
the Device
You agree not to
change the electronic serial number or equipment identifier of the Device, or
to perform a factory reset of the Device, without express permission from us.
We reserve the right to terminate your Service should you tamper with the
Device, leaving you responsible for the full month's charges to the end of the
current term, including without limitation unbilled charges, plus any
applicable disconnect fee, all of which immediately become due and payable.
M. Theft of
Service
You agree to notify
us immediately, in writing, by electronic mail or by calling the customer
support line, if the Device is stolen or if you become aware at any time that
your Service is being stolen or used fraudulently . When you call or write, you
must provide your account number and a detailed description of the
circumstances of the Device theft or fraudulent use of Service. Failure to do
so in a timely manner may result in the termination of your Service and
additional charges to you. You are liable for ALL use of the Service, including
the use of a Device stolen from you and any and all stolen Service or
fraudulent use of the Service.
N. Number
Transfer on Service Termination
We may, solely at
our discretion, release any telephone number that was ported to us by you and
used in connection with your Service provisioned by us to a new provider of
service to you under the provisions of the Local Number Portability (LNP)
policies of the FCC, if such new service provider is able to accept such
number, upon your termination of the Service, and provided (i) your account has
been terminated; and (ii) your account with us is completely current including
payment for all charges and applicable disconnect fees; and (iii) you request
the transfer upon terminating your account. You will not be able to port away
any Service number if you cancel within ninety days of the Activation Date.
O. Service
Distinctions
You acknowledge and
understand that the Service is not a telephone service. Important distinctions
exist between telephone services and this enhanced Service offering provided by
us. The Service is subject to different regulatory treatment than phone
service. This treatment may limit or otherwise affect your rights of redress
before regulatory agencies.
P. Collect Call
and Operator Services
We do not offer
collect calls, operator services or calls to 900 numbers via this Service.
Q. International
Services
Foreign Carrier
Restrictions. Foreign carriers or regulatory agencies may impose, upon the
portion of the end-to-end international service or facilities they provide,
certain limitations or restrictions that may limit your ability to use the
Service. You must conform to any limitations or restrictions imposed by the
foreign carriers or agencies.
R. Surcharges
In addition to
surcharges that may be found in the applicable Calling Plan, we may adjust
rates and charges, or impose additional rates and charges required or permitted
by governmental or quasi-governmental authorities to collect from others or pay
to others in support of statutory or regulatory funds or programs
("Governmental Charges").
S. Taxes
All taxes, tax-like
charges, and tax-related surcharges are referred to collectively as
"Taxes.” We may elect to impose and collect such Taxes, unless otherwise
constrained by court order or direction. You agree to pay all Taxes charged on
your invoice. If we have collected Taxes and a challenged Tax is found to have
been invalid and unenforceable, we, in our sole discretion, will either reduce
service rates for a fixed period of time in the future in order to flow-through
to you an amount equivalent to the invalid amounts collected, or we will credit
or refund such amounts to affected customers (less reasonable administrative
costs), if the amounts collected were retained by us or if they were delivered
to the jurisdiction and returned to us, or we will negotiate an arrangement
with the jurisdiction to provide a future benefit for customers in that
jurisdiction.
If you provide us
with a duly authorized tax exemption certificate, we will exempt you in
accordance with law, effective from the date we receive the certificate.
IV. RESTRICTIONS ON THE USE OF SERVICE
A. We offer our services subject to availability of
facilities, limitations of service offerings, and the provisions of this
Agreement.
B. Services provided by us under the Agreement will not
be used: (1) For any unlawful purpose; (2) For making telephone calls that use
automatic dialing devices and terminate into electronic information services,
pay-per-call services, or other domestic or international audiotext services;
or (3) For international call-back offerings using uncompleted call signaling
to any country that prohibits such an offering by statute or regulatory
decision.
C. We may (1) deny, for any lawful reason, your request
for Service, or (2) limit or allocate the facilities available to or utilized
by any Service, if necessary, to manage our network in an efficient manner;
meet reasonable service expectations; furnish service to existing and future
customers based on forecasted customer requirements; or for any other lawful
reason.
D. We may, without notice (consistent with governing
laws or regulations), block traffic to or from specific countries, country
codes, cities, city codes, local telephone exchanges ("NXX
exchanges"), individual telephone stations, groups or ranges of individual
telephone stations, or calls using certain customer authorization codes,
whenever we deem it necessary to take such action to prevent (1) the unlawful
use of Service; (2) nonpayment for Service; (3) the use of Service in violation
of this Agreement; or (4) network blockage or the degradation of Service
furnished to you or other customers.
V. PAYMENT OBLIGATIONS
A. You must provide us with a valid credit card number
when the Service is activated for any residential or business product. If the
credit card expires, you close your credit card account or your billing address
changes, or the credit card is cancelled and replaced because of loss or theft,
you must advise us immediately. We will invoice all charges on a monthly basis,
in advance, to your credit card (unless you are paying by automatic bank debit)
including but not limited to: activation fees and monthly Service fees,
advanced feature charges, equipment purchases and shipping and handling
charges. Any charges not included in your rate plan and any additional usage
charges are billed after each billing period. If we change our rates, recurring
monthly charges affected by such change will be assessed at the new rate for
the full billing period during which the new recurring charge rate became
effective.
B. We may terminate your Service at any time, in our
sole discretion, if any charge to your credit card on file with us is declined
or reversed, your credit card expires and you have not provided us with a valid
replacement credit card or in case of any other nonpayment of account charges.
Termination of Service for declined or expired card, reversed charges or
nonpayment leaves you fully liable for all charges accrued before termination
and for all costs incurred by us in collecting such amounts, such as (but not
limited to) collection costs and attorneys’ fees.
C. You are responsible for payment of all charges for
Services furnished to you and to anyone authorized by you to use your Service.
This responsibility is not changed by virtue of any use, misuse or abuse of
your Service undertaken or caused by third parties.
D. You must promptly notify us of any change in your
invoicing address or, if applicable, in the credit card or bank account used
for payment by e-mailing us at the address listed on your Welcome Email and on
your Invoice.
E. We will invoice you for Services on a monthly basis,
in advance, and all payments are due and payable by you within ten (10) days
from the invoice date (the “Due Date”). Amounts not paid within twenty (20)
days of the invoice date will be considered past due. If you make any late
payments, and we bill you for the Services, we will charge you a late fee of
1.5%, which we apply to that period's charges and any outstanding charges and
late payment charges that remain unpaid at the time of the next bill. If the
state law where you receive the services requires a different rate, we will
apply that rate.
F. If we become concerned at any time about your
ability to pay for services, we may require that you pay its charges within a
specified number of days or even prepay and that you make such payments in cash
or the equivalent of cash.
G. If we hire a collection agency to collect, or
attempt to collect, any charges owed us, you will be liable for an additional
payment equal to 35% of the charges owed, where permitted by applicable law. If
we incur any fees or expenses, including attorneys’ fees, in collecting, or
attempting to collect, any charges owed other than by hiring a collection
agency, you will be liable to us for the payment of all such fees and expenses
reasonably incurred.
H. If billing systems or other support is not available
for a service, feature, surcharge, tax or other charge element at the time of
service provision, we will bill for that service, feature, surcharge, or other
charge element as soon as we are capable of doing so.
I. No Credit Allowances for Interruption of Service. You
acknowledge and agree that the Service is provided “as is.” Credit allowances
for interruption of Service, including international calling services, will not
be provided.
VI. CANCELLATION OF SERVICE
A. By You
1. If you cancel
your Service after any applicable term has expired, there is no cancellation
fee.
2. If you cancel
your Service, you may not be able to use the Device or Equipment with any other
VoIP service.
3. Cancellation may
take up to two business days.
4. Your credit card
will be charged for any usage after you contacted us to cancel your Service.
B. By Us
1. We reserve the
right to discontinue furnishing Services, cancel your account, and/or block
your access to our network, without incurring any liability, immediately and
without notice if we deem that such action is necessary to prevent or to
protect against fraud or to otherwise protect our personnel, agents,
facilities, or services. Without limitation, we may take such actions if:
a. You refuse to furnish information or
furnish false information that (i) is essential for billing; or (ii) pertains
to your creditworthiness, your past or current use of common carrier
communications service, or your planned use of such service;
b. You indicate that you will not comply with
a request for security for the payment for services;
c. Your service usage charges exceed
established parameters based on your history of usage, which may indicate a
likelihood of nonpayment or possible fraud;
d. You have been given written notice by us
of any past due amount (which remains unpaid, in whole or in part) for any of
our services or an affiliated carrier's service to which you either subscribe
or had subscribed or used;
e. You either refuse to pay when billed for
Service or indicate to us or an entity billing on our behalf that you do not
intend to pay for Service used by you;
f. You use, or attempt to use, Service with
the intent to avoid the payment, either in whole or in part, of the charges for
the Service by (i) using or attempting to use service by rearranging, tampering
with, or making connections to Service in an unauthorized manner; or (ii) using
tricks, schemes, false or invalid numbers, false credit devices or other
fraudulent means or devices;
g. You act, or fail to act, in a manner that
hinders or frustrates any investigation by us or others having legal authority
to investigate your legal obligations;
h. Your telephone equipment fails to pass
back to us the appropriate signal to start and stop billing for a call;
i. You were previously provided with notice
of breach of contract, took corrective action, but thereafter engage in the same
breach activity; or
j. You act in a manner that is threatening,
obscene, harassing or abusive to our personnel.
2. We reserve the right to discontinue
furnishing services, cancel your account and/or block your access to our
network, without incurring any liability, immediately upon written notice to
you if:
a. Any invoice charges remain outstanding and
owed by you after the 20th day from the date of the invoice notifying you of
the charges; or
b. You fail to comply with a request by us
for security for the payment for services.
3. The discontinuance of service(s) by us
pursuant to these provisions does not relieve you of any obligation to pay for
charges due and owing for service(s) furnished up to the time of
discontinuance.
VII. LIABILITY
A. We will not be
liable for: (i) any failure of performance due to causes beyond our control,
including, but not limited to, acts of God, fires, floods or other
catastrophes; national emergencies, insurrections, riots or wars, strikes,
lockouts, work stoppages or other labor difficulties; and any law, order,
regulation or other action of any governing authority or agency thereof; or
(ii) delayed installation of our facilities or commencement of service.
B. With respect to any other factual
allegation, legal claim, or dispute by you or by any others, for damages
associated with the ordering (including the reservation of any specific number
for use with a service), installation (including delays thereof), provision,
termination, maintenance, repair, interruption or restoration of any service or
facilities offered by us, our liability, if any, will be limited as follows:
1. With respect to the routing of calls by us
to public safety answering points or municipal emergency service providers, our
liability, if any, will be limited to the lesser of: (a) the actual monetary
damages incurred and proved by you as the direct result of our action, or
failure to act, in routing the call, or (b) the sum of $1,000.00.
2. With respect to the provisioning of, or
any error or omission in, data, information, or content furnished in connection
with any service provided by us, for example, Directory Assistance, our
liability will be limited to the lesser of: (a) the amount of actual money
damages proven by you to have been incurred as the proximate result of your
reliance on such data, information or content; or (b) $100.00.
C. IN NO EVENT WILL WE BE LIABLE TO YOU FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR
DAMAGE OF ANY KIND, INCLUDING LOST PROFITS (WHETHER OR NOT WE HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES) BY REASON OF ANY ACT OR OMISSION IN
ITS PERFORMANCE UNDER THIS AGREEMENT. THIS SECTION SURVIVES TERMINATION OF THIS
AGREEMENT.
D. We will be indemnified, defended, and held
harmless by you against all claims of loss or damage arising from the use of
Service furnished by us, including:
1. Allegations or claims for libel, slander,
invasion of privacy or infringement of copyright arising out of the material,
data, information or other content transmitted via our Service; and
2. All other allegations and claims arising
out of any intentional act or omission by you or others authorized by you to
use the Service, in connection with any Service provided by us.
E. WE MAKE NO EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES ABOUT OUR SERVICES AND DISCLAIM ANY IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NONINFRINGEMENT.
WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON OUR BEHALF AND YOU MAY NOT
RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY US.
F. We will not be liable for any act or
omission of any other company or companies furnishing a portion of the service,
or from any act or omission of a third party, including those vendors
participating in our offerings made to you, or for damages associated with
service, or equipment that it does not furnish, or for damages that result from
the operation of customer provided systems, equipment, facilities or services
that are interconnected with our services.
VIII. DISPUTE RESOLUTION
IT IS IMPORTANT THAT
YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF
DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR
INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION.
A. Binding
Arbitration
The arbitration
process established by this section is governed by the Federal Arbitration Act
("FAA"), 9 USC Sections 1-16. Both you and we have the right to take
any dispute that qualifies to Small Claims court rather than arbitration. All
other disputes arising out of or related to this Agreement (whether based in
contract, tort, statute, fraud, misrepresentation or any other legal or
equitable theory) must be resolved by final and binding arbitration. This
includes any dispute based on any product, service or advertising having a
connection with this Agreement and any dispute not finally resolved by a Small
Claims court. The arbitration will be conducted by one arbitrator using the
procedures described by this Section. If any portion of this Dispute Resolution
Section is determined to be unenforceable, then the remainder shall be given
full force and effect. The arbitration of any dispute involving $10,000 or less
shall be conducted in accordance with the Consumer Arbitration Rules of the
American Arbitration Association ("AAA"), as modified by this
Agreement, which are in effect on the date a dispute is submitted to the AAA. The
AAA's Commercial Arbitration Rules and fee schedules will apply to any disputes
in excess of $10,000. You have the right to be represented by counsel in an
arbitration. In conducting the arbitration and making any award, the arbitrator
shall be bound by and strictly enforce the terms of this Agreement and may not
limit, expand, or otherwise modify its terms. The arbitrator may not award
punitive, exemplary or similar damages. The parties agree that an award of such
damages will be void if issued.
NO DISPUTE MAY BE
JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER
PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES
THAT ARE NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE
DAMAGES OR ATTORNEYS' FEES UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A
STATUTE. YOU AND WE BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE
EXCLUDED UNDER THIS AGREEMENT.
B. Arbitration
Information and Filing Procedures
Before you take a
dispute to arbitration or to Small Claims court, you must first contact our
Customer Care Department at the customer service number on your invoice for the
Services, or write to us at the address on your invoice and give us an
opportunity to resolve the dispute.
You must describe
your dispute and provide us with any supporting documentation. Likewise, if we
have a dispute with you, we will notify you by email sent to your billing
address and attempt to resolve it before pursuing arbitration.
If the dispute
cannot be satisfactorily resolved within sixty days from the date you or we are
notified by the other of a dispute, then either party may then contact the AAA
in writing at the AAA Service Center nearest to you and request arbitration of
the dispute. Information about the arbitration process and the AAA's
Arbitration Rules and its fees are available from the AAA on the Internet at
www.adr.org. The arbitration will be based only on the written submissions of
the parties and the documents submitted to the AAA relating to the dispute,
unless either party requests that the arbitration be conducted using the AAA's
telephonic, online, or in-person procedures. Additional charges may apply for
these procedures. Any in-person arbitration will be conducted at a location
that the AAA selects in the state of your primary residence. Any arbitration
shall remain confidential. Neither you nor we may disclose the existence,
content or results of any arbitration or award, except as may be required by
law, or to confirm and enforce an award. Judgment of the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
ANY CLAIM OR DISPUTE
ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN TWO YEARS
AFTER THE DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES.
C. Fees and
Expenses of Arbitration
Each party must pay
its own expenses associated with any arbitration, including its attorneys’
fees. If you file a request for arbitration, you will have to pay a filing fee
in accordance with the AAA fee schedule. Under AAA rules, some costs such as
the arbitrator’s fees and expenses will be allocated between the parties. In
addition to the procedures described in this Section for resolving a dispute,
you may also have the right to file a complaint with an appropriate federal or
state regulatory agency.
IX. MISCELLANEOUS PROVISIONS
A. Entire
Agreement.
These Terms and
Conditions constitute the entire Agreement between you and we, and supersede
any and all prior agreements, oral or written, concerning the subject matter.
If there is any inconsistency or conflict between the terms of any calling
plan, promotion and/or authorized written communications you have received and
the provisions of this Agreement, the provisions of this Agreement will
control.
B. No Obligation
to Assist in Switching Carriers.
If you either
voluntarily cancel your account with us or if we cancel your service for any
reason set forth above, we will have no obligation whatsoever to assist you in
any respect in switching from us to another carrier.
C. Assignment.
You may not modify
or assign this Agreement. In our sole discretion, we may assign this Agreement.
D. No Waiver of
Rights.
If either party
fails to enforce any right or remedy under this Agreement, that does not waive
the right or remedy for any other breach or failure.
E. Binding
Effect.
This Agreement is
binding upon you and us and upon, respectively, your and our agents and heirs.
F. Severability.
If any part or
provision of this Agreement is finally determined to be invalid or
unenforceable under applicable law by a court of competent jurisdiction, then
that part or provision will be ineffective only to the extent of such
invalidity or unenforceability, without in any way affecting the remaining
parts or provisions of this Agreement.
G. Governing Law.
This Agreement is
governed by and construed under the laws of the State of California and
applicable federal law, without regard to its choice of law principles, except
that the arbitration provisions in Section VIII shall be governed by the
Federal Arbitration Act. This governing law provision applies no matter where
you reside, or where you use or pay for the services.
H. Survival.
Any liability or
obligation of a party to the other party under the provisions of Sections I,
IV, V and VII as applicable, will, in each case, survive cancellation or
termination of this Agreement.
I. Headings of No
Force or Effect.
Headings in this Agreement
are for reference only and have no effect on the meaning of any provision.