COMVOICE TERMS OF SERVICE (Schedule B)
These
Terms of Service constitute the agreement ("Agreement") between
COMVOICEHOLDINGS LLC. and/or COMVOICE INC. and/or
assignee by COMVOICE INC ("we," "us" or
"COMVOICE") and the user ("you," "user" or
"Customer") of ComVoice's enhanced small
business communications services and any related products or services
("Service"). This Agreement
governs both the Service and any devices, such as an IP phone, Multimedia
Terminal Adapter, Analog Telephone Adapter 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 you agree, to the terms and
conditions of this Agreement, and you represent that you are of legal age to
enter this Agreement and become bound by its terms. If you have purchased Equipment from any ComVoice authorized dealer, you will be deemed a
"Reseller Customer" and will be governed by certain Reseller Customer
terms and conditions as set forth herein.
1. SERVICE
1.1 Term
Service is offered on a contractual term basis for a term
which begins on the date that ComVoice
activates your service and ends on the date defined in schedule A on the front
of the contract. Subsequent terms of
this Agreement automatically renew after the contract ending date on a
month-to-month basis without further action by you unless you give ComVoice written notice of non-renewal at least ten (10)
days before the end of the term in which the notice is given. You are purchasing the Service for full
terms, meaning that if you attempt to terminate Service prior to the end of a
term, you will be responsible for the full charges to the end of the
then-current term, including without limitation unbilled charges, plus a
disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of
Service does not excuse the Customer from paying all unpaid, accrued charges
due in relation to the Agreement.
1.2.1 Small Business Use
of Service and Device - Prohibition on Resale If you have subscribed to ComVoice's Small Business services, the Service and Device
are provided to you as a small business user.
This means that you are not to resell or transfer the service or device
to any other person for any purpose, without express written permission from ComVoice in advance.
You agree that the ComVoice Small Business
Plans do not confer the right to use the service for auto-dialing, continuous
or extensive call forwarding, telemarketing (including without limitation
charitable or political solicitation or polling), fax broadcasting or fax
blasting. ComVoice reserves the right to immediately
terminate or modify the Service, if ComVoice
determines, in its sole discretion, that Customer's Service is being used for
any of the aforementioned activities.
1.2.2 Business Use of
Service - Prohibition on Resale If you have subscribed to ComVoice's Business services, the Service is provided to
you as a small business user. This means
that you are not to resell or transfer the service or device to any other
person for any purpose, without express written permission from ComVoice in advance.
Customer is responsible for purchasing the standard SIP based Customer
Premise Equipment (CPE) ('device') for use with the service. Business customers are solely responsible for
maintaining, operating the device they use in conjunction with ComVoice's service. ComVoice
reserves the right to immediately terminate or modify the service, if ComVoice determines, in its sole discretion, that
Customer's Service is being used for any of the aforementioned activities.
1.2.3 Ownership of
Equipment & Collateral You agree that the equipment you
receive will remain ComVoice’s property until your
service agreement is fully fulfilled and account is satisfied. Once this
agreement is fulfilled and an account balance of zero is maintained the
ownership of any equipment on the Customer site will be transferred to your
company at no charge. This includes any passwords, telephones, adapters and
firewalls that the Customer has been receiving services from ComVoice on. Any equipment not returned to ComVoice in the event of a failure to complete this
agreement will be treated as theft of ComVoice
property and the appropriate action will be taken. All equipment on your site
will be held as collateral until any outstanding finial debt or agreements are
resolved with ComVoice.
1.3 Lawful Use of
Service and Device
1.3.1 Prohibited Uses You agree to use the Service and Device only for lawful
purposes. This means that you agree not
to use them for transmitting or receiving any communication or material of any
kind when in ComVoice's sole judgment the
transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a
civil liability, or otherwise violate any applicable local, state, national or
international law or (ii) encourages conduct that would constitute a criminal
offense, give rise to a civil liability, or otherwise violate any applicable
local, state, national or international law.
ComVoice reserves the right to terminate your
service immediately and without advance notice if ComVoice,
in its sole discretion, believes that you have violated the above restrictions,
leaving you responsible for the full contractual term charges to the end of the
current term, including without limitation unbilled charges, plus a disconnect
fee, all of which immediately become due and payable and may at ComVoice's discretion be immediately charged to your company. You are liable for any and all use of the
Service and/or Device by yourself and by any person making use of the Service
or Device provided to you and agree to indemnify and
hold harmless ComVoice against any and all liability
for any such use. If ComVoice,
in its sole discretion believes that you have violated the above restrictions, ComVoice may forward the objectionable material, as well as
your communications with ComVoice and your personally
identifiable information to the appropriate authorities for investigation and
prosecution and you hereby consent to such forwarding.
1.3.2 Use of Service and
Device by Customers Outside the United States While we encourage use of the Service
within the United States to other countries, ComVoice
does not presently offer or support the Service to customers located in other
countries including Canada. If you
remove the Device to a country other than the
1.4 Loss of Service Due
to Power Failure or Internet Service Outage or Termination or Suspension or
Termination by ComVoice. You
acknowledge and understand that the Service does not function in the event of
power failure. You also acknowledge and
understand that the service requires a fully functional broadband connection to
the Internet (which is not provided by ComVoice) and
that, accordingly, in the event of an outage of, or termination of service with
or by, your Internet service provider ("ISP") and/or broadband
provider, the service will not function in its entirety, but that you will
continue to be billed for the service unless and until you or ComVoice terminate the Service in accordance with this
Agreement. Should there be an
interruption in the power supply or ISP outage, the service will not fully
function until power is restored or the ISP outage is cured. A power failure or disruption may require the
Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages
will also prevent dialing to emergency service numbers including the 911
calling feature. Should ComVoice suspend or terminate your Service, the Service
will not function until such time as ComVoice
restores your Service (which may require payment of all invoices and reconnection
fees owed by you or cure of any breach by you of this Agreement).
1.5 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 ComVoice's 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") of ComVoice are and shall remain
the exclusive property of ComVoice and nothing in
this Agreement shall grant you the right or license to use any of 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 in object code form (without making any modification
thereto) strictly in accordance with the terms and conditions of this
Agreement. You expressly agree that the
Device is exclusively for use in connection with the Service and that ComVoice will not provide any passwords, codes or other
information or assistance that would enable you to use the Device for any other
purpose. If you decide to use the
Service through an interface device not provided by ComVoice,
which ComVoice reserves the right to prohibit in
particular cases or generally, you warrant and represent 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 harmless ComVoice against any and all liability arising out of your
use of such interface device with the Service.
You shall not reverse compile, disassemble or reverse engineer or
otherwise attempt to derive the source code from the binary code of the
firmware or software.
1.6 Tampering with the
Device or Service 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 ComVoice
in each instance which ComVoice may deny in its sole
discretion. ComVoice
reserves the right to terminate your Service should you tamper with the Device,
leaving you responsible for the full contractual term charges to the end of the
current term, including without limitation unbilled charges, plus a disconnect
fee, all of which immediately become due and payable. You agree not to “hack” or otherwise disrupt
the service or to make any use of the Service that is inconsistent with its
intended purpose or to attempt to do so.
1.7 Theft of Service You agree to notify ComVoice
immediately, in writing or by calling the ComVoice
customer support line, if the Device is stolen or if you become aware at any
time that your Service is being stolen or fraudulently used. 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.
Until such time as ComVoice receives notice of
the theft or fraudulent use, you will be liable for all use of the Service
using a Device stolen from you and any and all stolen Service or fraudulent use
of the Service.
1.8 Return of Device(s) The
Device(s) may be returned to ComVoice within the
contract term for a credit towards the termination of Service penalty fee. To
receive a credit for the fair market value of the equipment towards the
disconnect fee (35% of remainder of the contract) (refer to section 4.6 of this
document regarding termination fees), if the following are provided: (i) you have retained, and return along with the Device,
proof of purchase and original packaging; (ii) contents are undamaged and in
original condition, reasonable wear and tear excluded; (iii)
all parts, accessories, documentation and packaging materials are
returned; and (iv) equipment is returned with a valid return authorization
number obtained from ComVoice's customer care
department. You are responsible for the
cost and risk of return shipping of equipment.
If you receive cartons and/or Devices that are visibly damaged, you must
note the damage on the carrier's freight bill or receipt and keep a copy. In such event, you must keep the original carton,
all packing materials and parts intact in the same condition in which they were
received from the carrier and contact ComVoice's
customer care department immediately. To
obtain a return authorization number, you must contact support@comvoice.com or
1-877-878-VOIP.
1.9 Number Transfer on
Service Termination Upon termination of the Service, ComVoice may, at its sole discretion, release a telephone
number that was ported in from a previous service provider to ComVoice by you and used in connection with your Service
provisioned by ComVoice to your new service provider.
If such new service provider is able to accept such number, and provided that (i) your account has been terminated; (ii) your ComVoice
account is completely current including payment for all charges and disconnect
fees; and (iii) you request the transfer upon terminating your account. (iiii) any fees associated with
number porting must be paid in advance to ComVoice by
the customer.
1.10 Service
Distinctions You acknowledge and understand that
the service is not a telephone service.
Important distinctions (some, but not necessarily all, of which are
described in this Agreement) exist between telephone service and the enhanced
service offering provided by ComVoice. The service is subject to different
regulatory treatment than telephone service.
This treatment may limit or otherwise affect your rights of redress
before Federal, State or Provincial telecommunications regulatory agencies.
1.11 Ownership and Risk
of Loss You shall be deemed the owner of the
Device, and bear all risk of loss of, theft of, casualty to or damage to the
Device, from the time it is delivered, installed or shipped to you until the
time (if any) when it is returned by you pursuant to Section 1.8 and has been
received by ComVoice.
1.12 No 0+ Calling ComVoice's Service does not support 0+ calling
(including without limitation collect, third party billing or calling card
calling). ComVoice's
Service may not support 311, 511 and/or other x11 (other than 911, 611, 711 and
411, which are provided for elsewhere in this Agreement) services in one or
more (or all) service areas.
2. EMERGENCY SERVICES-
911 DIALING
2.1 Non-Availability of
Traditional 911 or E911 Dialing Service You acknowledge and understand that
the Service does NOT support traditional 911 or E911 access to emergency
services. ComVoice
does offer a limited 911-type service available only on ComVoice
Devices as described herein, but you acknowledge and understand that 911-type
dialing is NOT automatic, that you must separately take affirmative steps, as
described in this Agreement and on ComVoice's website
including a separate 911 release, to activate such 911-type dialing
capabilities and that such 911-type dialing is different in a number of
important ways (some, but not necessarily all, of which are described in this
Agreement) from traditional 911 service.
ComVoice 911 dialing cannot be used in
conjunction with a ComVoice Soft Phone application
and is only available on ComVoice-certified Devices
or Equipment. You agree to inform any household residents, business or office
tenants, guests and other third persons who may be present at the physical
location where you utilize the Service of the non-availability of traditional
911 or E911 dialing from your ComVoice Service and
Device(s). If you activate ComVoice 911-type dialing service, you agree to inform any
household residents business or office tenants, guests and other third persons
who may be present at the physical location where you utilize the Service as to
the important differences and limitations of ComVoice
911 dialing service as compared with traditional 911 or E911 dialing that are
set forth in this Agreement.
2.2 Description of
911-Type Dialing Capabilities – Automatic Activation ComVoice does offer a 911-type dialing service
in the
2.3 Service Outage
2.3.1 Power Failure or
Disruption You acknowledge and understand that
911 dialing does not function in the event of a power failure or
disruption. Should there be an
interruption in the power supply, the Service and 911 dialing will not function
until power is restored. A power failure
or disruption may require the Customer to reset or reconfigure equipment prior
to utilizing the Service or 911 dialing.
2.3.2 Broadband Service
/ ISP Outage or Termination / Suspension or Termination by ComVoice You acknowledge and understand that service outages or
suspension or termination of service by your broadband provider and/or ISP or
by ComVoice will prevent ALL Service including 911
dialing.
2.3.3 Service Outage Due
to Suspension of Your Account You acknowledge and understand that
service outages due to suspension of your account as a result of billing issues
will prevent ALL Service, including 911dialing.
2.3.4 Other Service
Outages You acknowledge and understand that if
there is a service outage for ANY reason, such outage will prevent ALL Service,
including 911 dialing. Such outages may
occur for a variety of reasons, including, but not limited to those reasons
described elsewhere in this Agreement.
2.3.5 SLA of Service
Agreement ComVoice agrees to provide a service and server
availability of 99.90%
2.3.6 Limitation of
Liability and Indemnification You acknowledge and understand that ComVoice's liability is limited for any Service outage and/or
inability to dial 911 from your line or to access emergency service personnel,
as set forth in this document. You agree
to defend, indemnify, and hold harmless ComVoice, its
officers, directors, employees, affiliates and agents and any other service provider
who furnishes services to Customer in connection with this Agreement or the
Service, from any and all claims, losses, damages, fines, penalties, costs and
expenses (including, without limitation, reasonable attorneys fees) by, or on
behalf of, Customer or any third party or user of Customer's Service relating
to the absence, failure or outage of the Service, including 911 dialing and/or
inability of Customer or any third person or party or user of Customer's
Service to be able to dial 911 or to access emergency service personnel.
2.4 911 Dialing Requires
Activation You acknowledge and understand that
911 dialing does not function unless you have successfully contacted and filed
your 911 location information and until such later date that such activation
has been confirmed to you through a confirming email. You acknowledge and understand that you
cannot dial 911 from this line unless and until you have received a confirming
email.
2.5 Failure to Designate
the Correct Physical Address When Activating 911 Dialing Failure to
provide the current and correct physical address and location of your ComVoice equipment by following the instructions from ComVoice staff will result in any 911 communication you may
make being routed to the incorrect local emergency service provider. This must be the actual physical street
address where you are located, not a post office box, mail drop or similar
address.
2.6 Requires
Re-Activation if You Change Your Number or Add or Port New Numbers You acknowledge and understand that 911 dialing does not
function if you change your phone number or (for such newly added or ported
numbers) if you add or port new numbers to your account, unless and until you
have successfully activated the 911 dialing feature for your changed, newly
added or newly ported number by following the instructions, please contact
customer support, and until such later date that such activation has been
confirmed to you through a confirming email.
Although you may have activated 911 dialing with your former ComVoice phone number, you must separately activate 911
dialing for any changed or newly added or ported number.
2.7 Requires
Re-Activation if You Move or Change Location You acknowledge and understand that 911 dialing does not
function properly or at all if you move or otherwise change the physical
location of your ComVoice Device to a different
street address, unless and until you have successfully updated your address
information through ComVoice, and until such later
date that such activation has been confirmed to you through a confirming
email. 911 dialing must be re-activated
although you may have activated 911 dialing using your former address, and you
must separately activate 911 dialing for any new physical address. Failure to provide the current and correct
physical address and location of your ComVoice
equipment will result in any 911 dialing you may make being routed to the
incorrect local emergency service provider
2.8 Possibility of
Network Congestion and/or Reduced Speed for Routing or Answering 911 Due to the technical constraints on the manner in which
it is possible to provide the 911 dialing feature for ComVoice
Service at this time, you acknowledge and understand that there is a greater
possibility of network congestion and/or reduced speed in the routing of a 911
communication made utilizing your ComVoice equipment
as compared to traditional 911 dialing over traditional public telephone
networks. You acknowledge and understand
that 911 dialing from your ComVoice equipment will be
routed to the general telephone number for the local emergency service provider
(which may not be answered outside business hours), and will 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. You acknowledge
and understand that there may be a greater possibility that the general
telephone number for the local emergency service provider will produce a busy
signal or will 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. You
acknowledge and accept that ComVoice relies on third
parties for the forwarding of information underlying such routing, and
accordingly ComVoice and its third party provider(s)
disclaim any and all liability or responsibility in the event such information
or routing is incorrect. ComVoice or its officers or employees, may not 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 911 dialing unless it
is proven that the act or omission proximately causing the claim, damage, or
loss constitutes gross negligence, recklessness, or intentional misconduct on
the part of ComVoice.
2.9 Automated Number
Identification At this time in the technical
development of ComVoice 911 dialing, it may or may
not be possible for the Public Safety Answering Point (PSAP) and the local
emergency personnel to identify your phone number when you dial 911. ComVoice's system
is configured in most instances to send the automated number identification
information; however, one or more telephone companies, not ComVoice,
route the traffic to the PSAP and the PSAP itself must be able to receive the
information and pass it along properly, and PSAPs are not yet always
technically capable of doing so. You
acknowledge and understand that PSAP and emergency personnel may or may not be
able to identify your phone number in order to call you back if the call is
unable to be completed, is dropped or disconnected, or if you are unable to
speak to tell them your phone number and/or if the Service is not operational
for any reason, including without limitation those listed elsewhere in this
Agreement.
2.10 Automated Location
Identification At this time in the technical
development of ComVoice 911 Dialing, it is not
possible to transmit identification of the address that you have listed to the
Public Safety Answering Point (PSAP) and local emergency personnel for your
area when you dial 911. You acknowledge
and understand that you will need to state the nature of your emergency
promptly and clearly, including your location, as PSAP and emergency personnel
will NOT have this information. You
acknowledge and understand that PSAP and emergency personnel will not be able
to find your location if the call is unable to be completed, is dropped or disconnected,
if you are unable to speak to tell them your location and/or if the Service is
not operational for any reason, including without limitation those listed
elsewhere in this Agreement.
2.11 Alternative 911
Arrangements You acknowledge that ComVoice does not offer primary line or lifeline services.
You should always have an alternative means of accessing traditional E911
services.
3. CHANGES TO THIS
AGREEMENT
ComVoice may change the terms and conditions
of this Agreement from time to time.
Notices will be considered given and effective on the date posted on to
the "Service Announcements" section of ComVoice's
website (currently located at
http://www.ComVoice.com/features_terms_service.php ). Such changes will become
binding on Customer, on the date posted to the ComVoice
website and no further notice by ComVoice is
required. This Agreement as posted
supersedes all previously agreed to electronic and written terms of service,
including without limitation any terms included with the packaging of the
Device and also supersedes any written terms provided to Reseller Customers in
connection with resale distribution, including without limitation any written
terms enclosed within the packaging of the Device..
4. CHARGES / PAYMENTS /
DEFAULT / TAXES / TERMINATION
4.1 Billing We must receive from you the completed
credit application form delivered to you by ComVoice before
the Service activated. If your credit application is not deemed acceptable by ComVoice, the payment of an advance one month deposit for the payment of services
may be required. ComVoice will accept credit cards or
a company check as valid forms of payment for service. We will bill all
charges, applicable taxes and surcharges monthly in advance (except for
usage-based charges, which will be billed monthly in arrears, and any other
charges which ComVoice decides to bill in arrears) to
your credit card, including but not limited to: activation fees, monthly
Service fees, international usage charges, advanced feature charges, equipment
purchases, disconnect fees and shipping and handling charges. ComVoice reserves
the right to bill at more frequent intervals if the amount due at any time
exceeds fifty dollars ($50.00). Any
usage charges will be billed in increments that are rounded up to the nearest
minute except as otherwise set forth in the rate schedules found on ComVoice's website. ComVoice
reserves the right to collect any unpaid balance exceeding fifty dollars
($50.00) and will be charged to a credit card on file without further
authorization from the customer.
4.2 Billing Disputes You must notify ComVoice in
writing within 7 days after receiving your statement if you dispute any ComVoice charges on that statement or such dispute will be
deemed waived. Billing disputes should
be notified to the following address:
Customer Care Billing Department
ComVoice
Or billing@ComVoice.com or 1-877-878-VOIP
or 602-424-9900 option 2
4.3 Payment ComVoice accepts payments only by credit card
or company check as set forth in Section 4.1.
Your initial use of the Service authorizes ComVoice
to charge the credit card account number on file with ComVoice,
including any changed information given to ComVoice
if the card expires or is replaced, or if you substitute a different card, for ComVoice charges as set forth in Section. You agree to
promptly notify ComVoice
of any changes to your credit card used for billing purposes.
4.4
This authorization will remain
valid until 30 days after ComVoice receives your
written notice terminating ComVoice's authority to
charge your credit card, whereupon ComVoice will
charge you the disconnect fee(s) and any other outstanding charges and
terminate the Service.
4.5 ComVoice may terminate your Service at any time in its sole
discretion, if any charge to your credit card on file with ComVoice
is declined or reversed, your credit card expires and you have not provided ComVoice with a valid replacement credit card or in case of
any other non-payment of account charges.
Termination of Service for declined or expired card or failure to pay by
check, reversed charges or non-payment leaves you FULLY LIABLE to ComVoice for ALL CHARGES ACCRUED BEFORE TERMINATION and for
all costs incurred by ComVoice in collecting such
amounts, such as (but not limited to) collection costs and attorney's fees.
4.6
Termination/Discontinuance of Service ComVoice reserves the right to suspend or
discontinue providing the Service generally, or to terminate your Service, at
any time in its sole discretion. If ComVoice discontinues providing the Service generally, or
terminates your Service in its discretion without a stated reason, you will
only be responsible for charges accrued through the date of termination,
including a pro-rated portion of the final month's charges. If your Service is terminated for any stated
reason, including without limitation violation of this Agreement, or because of
any improper use of the Service or Device (such as, but not limited to, your
attempts to hack, disrupt, or misuse the Service or your acts or omissions that
violate any acceptable use policy of ComVoice or of a
third party provider to which ComVoice is subject),
you will be responsible for the full contractual terms charges to the end of
the current term, including without limitation unbilled charges, plus the disconnect
fee set forth in Section 4.6, all of which immediately become due and payable.
4.7 Taxes You
are responsible for, and shall pay, any applicable federal, state, provincial,
municipal, local or other governmental sales, use, excise, value-added, personal
property, public utility or other taxes, fees or charges now in force or
enacted in the future, that arise from or as a result of your subscription or
use or payment for the Service or a Device.
Such amounts are in addition to payment for the Service or Devices and
will be billed to your account as set forth in this Agreement. If you are exempt from payment of such taxes,
you shall provide ComVoice with an original
certificate that satisfies applicable legal requirement attesting to tax-exempt
status. Tax exemption will only apply
from and after the date ComVoice receives such
certificate.
4.8 Early Disconnect Fee Customer will be charged a disconnect fee of 100% of the
remaining contact upon termination of Service for any reason or for convenience
by Customer. The disconnect fee becomes
due and payable immediately upon termination and will billed directly to
Customer's account. If Customer has
multiple extensions, Customer will be charged a disconnect fee of 100% for each
extension disconnected. To receive a 65%
credit for the disconnect fee, Customer must return the Device(s) undamaged and
in original condition within fourteen (14) days of termination as set forth in
Section 1.8. ComVoice
will not credit Customer if the Device(s) is damaged or not in its original
condition as received by the Customer or if Customer has otherwise failed to
comply fully with the requirements of Section 1.8.
4.8.1 Early Port Out Any telephone number ported to ComVoice
from another carrier that is ported out prior to Three-Hundred and Sixty-Five
(365) days will incur a Two-Hundred Dollars ($200.00) early port fee on top of
any Early Disconnect Fee’s for each number.
4.8.2 Early Partial
Disconnect of One or More Devices Disconnect may occur on devices that
are no longer in use as long as the Customer maintains the minimum Service
requirement. The Customer will have to extend the contract terms to the
satisfaction the existing contract and is at the sole discretion of ComVoice. The
minimum requirement to keep Service active; requires at minimum five (5)
telephones or fifty percent (50%) of the total contract, unless Customer has
received prior written authorization signed by a corporate Officer of ComVoice.
4.9 Money Back
Guarantee; Limitations and Conditions
4.9.1 Client Money Back
Guarantee ComVoice offers subscribers a 14 day Money
Back Guarantee from date of activation of service (such 14 day period, the "Warranty
Period"), applicable only to User's initial service package and not to
additional or secondary orders. Under terms of this Money Back Guarantee, ComVoice refunds the first month of service fee provided
the terms described below are satisfied. All equipment must be returned within
the 14 day period. Federal excise taxes and any other applicable taxes cannot
be refunded. ComVoice reserves the right to terminate
or revoke this Money Back Guarantee at any time, without prior notice.
In
order to be entitled to this Money Back Guarantee, User (i)
must cancel service within the 14 day Warranty Period after the account
activation; (ii) must not have exceeded 250 minutes of usage. User remains responsible for any charges for
domestic usage in excess of the amount included within the Plan to which User
subscribes, international usage (including the charges described in Section
4.9), payphone calls to ComVoice toll free numbers
and directory assistance. To qualify a valid return authorization number
obtained from ComVoice customer care. User is responsible for the cost and risk of
return shipping and de-installation of equipment. THE MONEY BACK GUARANTEE WILL
NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS.To
obtain a return authorization number, User must contact billing@ComVoice.com or
1-877-878-VOIP or 602-424-9900.
.
4.10 Payphone Charges If you make use of ComVoice's
Toll Free feature any toll free feature that may be offered by ComVoice in the future, you acknowledge and agree that ComVoice is entitled to recover from you any charges
imposed on ComVoice by payphone owners or operators,
either directly or indirectly through ComVoice's
suppliers in connection with toll free calls made to your number, or any
charges imposed on ComVoice by its suppliers to
recover such costs. ComVoice
may recover these amounts by means of a per-call charge, rounded up to the next
cent, or in such other fashion as ComVoice deems
appropriate for the recovery of these costs
4.11 Charges for
Directory Calls ComVoice will charge $1.50 for each call made
to ComVoice directory assistance.
5. WARRANTY and
LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of
Liability ComVoice shall not be liable for any delay or
failure to provide the Service, including 911 dialing, at any time or from time
to time, or any interruption or degradation of voice quality that is caused by
any of the following:
1.) act or omission of an underlying
carrier, service provider, vendor or other third party;
2.) equipment, network or facility
failure;
3.) equipment, network or facility
upgrade or modification;
4.) force major events such as (but
not limited to) acts of god; strikes; fire; war; riot; government actions;
5.) equipment, network or facility
shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or
facility failure caused by the loss of power to Customer;
8) outage of Customer's ISP or
broadband service provider;
9) act or omission of Customer or any
person using the Service or Device provided to Customer; or
10) any other cause that is beyond ComVoice's control, including without limitation a failure
of or defect in any Device, the failure of an incoming or outgoing
communication, the inability of communications (including without limitation
911 dialing) to be connected or
completed, , or degradation of voice quality.
ComVoice's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to ComVoice's performance or nonperformance hereunder or (iii)
any ComVoice act or omission in connection with the
subject matter hereof shall in no event exceed Service charges with respect to
the affected time period.
5.2 Disclaimer of
Damages
YOU
AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN
RISK. YOU AGREE THAT COMVOICE WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR
ANY (a) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE(S), (b)
USE OF OR INABILITY TO USE THE SERVICE(S), (c) INTERRUPTION OF BUSINESS, (d)
ACCESS DELAYS OR INTERRUPTIONS OR IN CONNECTION WITH THE USE OR INABILITY TO
USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY
SERVICE PERSONNEL THROUGH THE SERVICE. (e) EVENTS BEYOND REGISTER.COM'S AND
SUBCONTRACTOR'S REASONABLE CONTROL OR (f) ANY OTHER MATTER RELATING TO YOUR USE
OF THE SERVICE(S). COMVOICE ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS,
GOODWILL, DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, OR OTHER INTANGIBLE
LOSSES) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EVEN IF COMVOICE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL COMVOICE’S MAXIMUM AGGREGATE LIABILITY
EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN NO EVENT GREATER
THAN FIVE HUNDRED DOLLARS ($500.00). BECAUSE SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,
IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY
LAW. IN NO EVENT SHALL COMVOICE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES
OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN
CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT,
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR
FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF
REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF THE LIMITATIONS SET FORTH HEREIN
APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT
LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER
OR NOT COMVOICE WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF
DAMAGES.
5.3 Indemnification Customer agrees to defend, indemnify, and hold harmless ComVoice, its officers, directors, employees, affiliates
and agents and any other service provider who furnishes services to Customer in
connection with this Agreement or the Service, from any and all claims, losses,
damages, fines, penalties, costs and expenses (including, without limitation,
reasonable attorneys fees) by, or on behalf of, Customer or any third party or
user of Customer's Service, relating to this Agreement, the Services, including
911dialing, or the Device. This
paragraph shall survive termination of this Agreement.
5.4 No Warranties on
Service COMVOICE MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR
NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING
OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S
REQUIREMENTS. WITHOUT LIMITING THE
FOREGOING, COMVOICE DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE,
DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT,
DATA OR INFORMATION. NEITHER COMVOICE
NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER
SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN
CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED
ACCESS TO COMVOICE'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES
EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION
OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH
ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF
WHETHER SUCH DAMAGE OCCURS AS A RESULT OF COMVOICE'S OR ITS SERVICE PROVIDER'S
OR VENDORS' NEGLIGENCE. STATEMENTS AND
DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY COMVOICE OR
COMVOICE'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A
WARRANTY OF ANY KIND.
5.5 No Warranties, or
Limited Warranties, for Devices If Customer received the Device new
from ComVoice and the Device included a limited
warranty at the time of receipt; Customer must refer to the separate limited
warranty document provided with the Device for information on the limitation
and disclaimer of certain warranties.
Remedies for breach of any such warranties will be limited to those
expressly set forth in such documentation.
If Customer's Device did not include a limited warranty from ComVoice at the time of receipt, Customer agrees that it
accepts its Device "as is" and that Customer is not entitled to
replacement or refund in the event of any defect, except that for Retail
Customers only, ComVoice will provide a limited
warranty on the Device as to manufacturing defects only for a period of one (1)
year from the date of purchase. This
Reseller Customer limited warranty shall not apply to any defect or failure
other than a manufacturing defect, and, without limiting the generality of the
foregoing, shall not apply to any defect caused by damage in transit, reseller
handling or Reseller Customer handling.
Reseller Customer's sole remedy for any breach of this Retail Customer
limited warranty is to obtain a repaired or replacement Device, by following
the return procedures set forth in Section 1.8.
Reseller Customer must include with the returned Device a letter stating
that the Reseller Customer is returning the Device for warranty repair or
replacement and stating the nature of the defect. This Reseller Customer limited warranty shall
also apply in lieu of the limited warranty included with the Device if such
included limited warranty is less favorable to Reseller Customer than that
contained herein.
OTHER
THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED
WITH THE DEVICE AND THE RESELLER CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH
HEREIN, COMVOICE MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE
FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY
USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT
THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET
CUSTOMER'S REQUIREMENTS. THE FOREGOING
WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET
5.6 No Third Party
Beneficiaries No provision of this Agreement
provides any person or entity not a party to this Agreement with any remedy,
claim, liability, reimbursement, or cause of action or creates any other third
party beneficiary rights.
5.7 Content You
are liable for any and all liability that may arise out of the content
transmitted by or to you or Users using the Services. You shall assure that your or User's use of
the Services and content will at all times comply with all applicable laws,
regulations and written and electronic instructions for use. ComVoice reserves the right to terminate or suspend
affected Services, and/or remove your or Users' content from the Services, if ComVoice determines that such use or content doer not
conform with the requirements set forth in this Agreement or interferes with ComVoice's ability to provide Services to you or others or
receives notice from anyone that your or Users' use or Content may violate any
laws or regulations. ComVoice's actions or inaction
under this Section shall not constitute review or approval of your or Users'
use or Content. You will indemnify and
hold ComVoice against any and all liability arising
from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether
authorized or unauthorized, using the Service and/or Device provided to you.
6. GOVERNING LAW /
RESOLUTION OF DISPUTES
6.1 Mandatory
Arbitration Any dispute or claim between Customer
and ComVoice arising out of or relating to the
Service or Device provided in connection with this Agreement shall be resolved
by arbitration before a single arbitrator administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules
(or, for Customers subscribing to service in Canada, a Canadian arbitration
organization of ComVoice's choosing). The arbitration shall take place in,
6.2 Governing Law The Agreement and the relationship between you and ComVoice shall be governed by the laws of the State of
6.3 Entire Agreement This Agreement and the rates for Services can be
requested from ComVoice helpdesk constitute the
entire agreement between you and ComVoice and govern
your use of the Service, superseding any prior agreements between you and ComVoice and any and all prior or contemporaneous
statements, understandings, writings, commitments, or representations
concerning its subject matter. No amendment
to this Agreement shall be binding upon ComVoice
unless and until posted in accordance with Section 3 hereof.
6.4 Severability If
any part of this Agreement is legally declared invalid or unenforceable, all
other parts of this Agreement are still valid and enforceable. Such invalidity
or non-enforceability will not invalidate or render unenforceable any other
portion of this Agreement.
7. PRIVACY
ComVoice Service utilizes, in whole or in
part, the public Internet and third party networks to transmit voice and other
communications. ComVoice
is not liable for any lack of privacy which may be experienced with regard to
the Service. Please refer to our Privacy
Policy applicable to you at www.ComVoice.com for additional information.
8.
Notices Subject to the terms of this
Agreement, you agree that, any notices required to be given under this
Agreement will be deemed to have been given if delivered by email or fax, or
sent by certified mail, return receipt requested, or by Federal Express or other
recognized overnight delivery service to each of the parties in accordance with
the most current contact information you have provided to us. all notices shall
be effective upon receipt, except that email and fax notices shall be effective
upon transmission.
By providing such contact information to ComVoice,
you agree that ComVoice may use the information you
have provided to contact you via email, postal mail, telephone or fax in any
format or manner. ComVoice may, but shall have no
obligation to, send a single notice by various means of delivery (i.e., fax,
email, certified mail or express mail). In no event shall ComVoice
be liable to you for choosing to send notice to one address, or by one means of
delivery, and not others.
9. Conflicts with other Agreements. In
the event of any conflict between this terms of Agreement the terms and
conditions of this Agreement shall govern as it relates to any rights and
remedies as between you and ComVoice.
10. Entire Agreement; Section
Headings This Agreement as well as any
additional ComVoice rules and policies, together with
all modifications thereto, constitute the entire agreement between you and ComVoice concerning your use of the Services, and supercede and govern all prior proposals, agreements or
other communications between you and ComVoice
(including, but not limited to, any prior versions of the Agreement). You also
may be subject to additional terms and conditions that may apply when you use
third party, affiliate or other ComVoice goods or
services not addressed herein. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW
TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE
OF THE SERVICES OR THE AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH
CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. The section titles in the
Agreement are for convenience only and have no legal or contractual effect.
11. Force Majeure. Neither
party shall be deemed in default hereunder, nor shall it hold the other party
responsible for, any cessation, interruption or delay in the performance of its
obligations hereunder due to earthquake, flood, fire, storm, natural disaster,
act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott,
provided that the party relying upon this section shall take all steps
reasonably necessary under the circumstances to mitigate the effects of the
force majeure event upon which such notice is based; provided further, that in
the event a force majeure event described in this Section extends for a period
in excess of thirty (30) days in the aggregate, ComVoice
may immediately terminate this Agreement and shall have no liability therefore.
12 General You
agree and acknowledge that any acceptance of your application for the services
and the performance thereof will occur at ComVoice’s
offices the location of our principal place of business.
Except as otherwise set forth herein, your rights under this Agreement are
neither assignable nor transferable. Any attempt by your creditors to obtain an
interest in your rights under this Agreement, whether by attachment, levy,
garnishment or otherwise, renders this Agreement voidable at our option. You
agree not to resell any of the Services without ComVoice
prior express written consent.
Nothing contained in this Agreement shall be construed as creating any agency,
partnership, or other form of joint enterprise between the parties. Except as
expressly stated herein, this Agreement shall not be construed to create any
obligation by ComVoice to any non-party or Assignee
to this Agreement.
The failure of ComVoice to require your performance
of any provision hereof shall not affect the full right to require such
performance at any time thereafter; nor shall the waiver by ComVoice
of a breach of any provision hereof be taken or held to be a waiver of the
provision itself. In the event that any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall not render this
Agreement unenforceable or invalid as a whole. ComVoice
will amend or replace such provision with one that is valid and enforceable and
which achieves, to the extent possible, the original objectives and intent of ComVoice as reflected in the original provision.