|
1. Definitions:
-
"Activate"
or "Activation" means the commencement of MyPhoneCompany Enhanced
Internet Voice Service. Activation is deemed to occur immediately at such
time as Sipmedia turns up the Service, when the Service is available to be
used and calls are able to be made and received via the Equipment provided
by us, regardless of whether any calls subsequently are made or received.
-
Broadband
Internet Service: Internet access which is delivered over high speed
cable, DSL, T1 lines, or other means of high-speed access.
-
Computer:
An electronic device that can store, receive and process data and which
has the minimum hardware and software requirements necessary to receive
Broadband Internet Service.
-
Equipment:
All equipment owned by Sipmedia or purchased by you from Sipmedia which is
delivered to and installed in your home or other premises. When we use the
term "Equipment," we mean such instruments as an internet protocol ("IP")
phone, Analog Telephone Adapter, Multimedia Terminal Adapter, Cisco
ATA-186, SPA 2000, Cable/DSL Router or any other IP connection device used
in conjunction with the Service, together with certain software necessary
to receive the Service. We may also mean all wire and the Modem, unless
those items are purchased separately.
-
Modem:
A device that converts and transmits data over cable or DSL lines.
-
Subscriber:
You and every other individual, whether or not an actual member of your
household, who uses the Service, regardless of whose name the account is
in or who owns, rents or uses the premises in which the Service is
located.
2. Services Provided:
-
We will
provide you with voice Service so long as you possess and maintain in good
operating order (i) any Equipment furnished to you by us; (ii) a cable
Modem, DSL Modem or T1 line; and (iii) Broadband Internet Service. You
acknowledge that Sipmedia is not an internet service provider ("ISP") and
that the installation and cost of Broadband Internet Service is your
responsibility separate from the Service provided under this Agreement.
-
Equipment
provided by us to be used with Sipmedia Service in the United States
carries a 30-day limited warranty. Within the first 30 days, if the
original Sipmedia-provided Equipment malfunctions and if you so request,
new Equipment will be sent to you. You will be billed for the replacement
Equipment; however, upon return of the original Equipment and after the
device has been tested to determine that it malfunctioned and was not
damaged by your misuse, you will be refunded the cost of the new
Equipment. After the initial 30 days, you will not be eligible to receive
a refund for any replacement Equipment. For Cable/DSL Routers furnished by
us, the same 30-day limited warranty shall apply. After the expiration of
the first 30 days, please contact your equipment manufacturer for further
details applicable to Cable/DSL Routers. For all Equipment furnished by
us, if you receive cartons and/or any item(s) of Equipment that are
visibly damaged, please note the damage on the carrier's freight bill or
receipt and keep a copy. Keep the original carton, all packing materials
and parts intact and contact Sipmedia's customer care department
immediately.
-
The list of
available Services and the costs of each depend upon the specific
MyPhoneCompany Plan that you select. All MyPhoneCompany Plans include:
local, regional and long distance calling within the United States and to
Canada, Caller ID, Call Waiting, Call Waiting Disable, Call Waiting with
Caller ID, Caller ID Block, Call Forwarding, Call Transfer, 3-Way Calling,
and Return Call. Depending upon the MyPhoneCompany Plan that you select,
Voice Mail may be included or may be available for an additional fee.
Other Enhanced Services, such as Second Line, Fax Line, Virtual Phone
Number and Toll-Free Number, are available for an additional fee. The
rates for international calling depend upon the location dialed. The
Service does not support directory listed numbers, operator-assistance,
pay services or third-party billing (except calling cards or prepaid
services).
-
Use of
Service and Equipment:
(i)
Personal Residential Use: If you sign up for a Residential usage
plan, then the Service and Equipment are being provided to you for your
personal, residential, non-business and non-professional use. This means
that you are not using the Service or the Equipment for any commercial
or governmental activities, profit-making or non-profit, including but
not limited to telemarketing, call center services, autodialing or
predictive dialing services, home office, business, sales,
telecommuting, continuous or extensive call forwarding, fax broadcast,
fax blasting or any other activity that would be inconsistent with
normal residential usage patterns. This also means that you are strictly
prohibited from reselling or transferring the Service or the Equipment
to any other person for any purpose, or make any charge for the use of
the Service or Equipment, without our express written permission
obtained in advance. We shall have the right to determine, in our sole
discretion, what constitutes improper Personal Residential Use of our
Service. If you violate any of these restrictions, we may charge you a
higher rate or impose per-minute charges for all Services used during
the period in which you were in violation. We also reserve the right to
disconnect without notice any prohibited transmissions or uses, or to
immediately terminate or modify the Service if we determine, in our sole
discretion, that your Service is being used for non-residential or
commercial use.
(ii) Business Use: If you sign up for a Business usage plan, then
by entering into that form of Agreement, you are subscribing for the
Service and Equipment as a small business user. Your rights to use the
Service are subject to certain limitations. You are not permitted to use
the Service or Equipment for telemarketing, autodialing or predictive
dialing services, continuous or extensive call forwarding, fax
broadcast, fax blasting or any other activity that would be inconsistent
with normal business usage patterns. This also means that you are
strictly prohibited from reselling or transferring the Service or the
Equipment to any other person for any purpose, or make any charge for
the use of the Service or Equipment, without our express written
permission obtained in advance. We shall have the right to determine, in
our sole discretion, what constitutes improper use of our Service. We
reserve the right to disconnect without notice any prohibited
transmissions or uses, or to immediately terminate or modify the Service
if we determine, in our sole discretion, that your Service is being used
in violation of the terms of this Agreement.
(iii) Additional Prohibited Uses: In addition to the specific
uses prohibited in the immediately preceding subparagraph, you agree not
to use the Equipment except with the Services provided by Sipmedia
hereunder. Any use of the Services or any other action that causes a
disruption in the network integrity of Sipmedia or its vendors, whether
directly or indirectly, is strictly prohibited and could result in
termination of the Services. You understand that neither we nor any of
our vendors are responsible for the content of the transmissions that
may pass through the Internet and/or the Services. You agree not to use
the Services or Equipment or permit the Services or Equipment to be used
for transmission, receipt or possession of any communication or material
of any kind which, in our sole judgment would encourage or constitute a
criminal offense, give rise to a civil liability, or otherwise violate
any applicable local, state, national or international law. We reserve
the right to terminate your service immediately and without advance
notice if we believe, in our sole discretion, that you have violated the
above restrictions. In such event, you will be responsible for the
charges to the end of the month in which your Service ends, including
without limitation unbilled charges, plus a disconnect fee ($119), all
of which immediately become due and payable. You are liable for any and
all use of the Service and/or Equipment by any person, and you agree to
indemnify and hold us harmless against any and all liability for any
such use that fails to comply with this Subsection. The complete
Sipmedia Acceptable Use Policy is printed as Annex A at the end of this
Subscriber Agreement.
(iv) Use Outside the United States: One of the prime benefits of
your Service is that you can use it to call from within the United
States to other countries. However, we do not presently support the
Service to users located in other countries. If you remove the Equipment
to a country other than the United States and use the Service from
there, you do so at your own risk, including the risk that such activity
violates local laws in the country where you do so. You are liable for
any and all use of the Service and/or Equipment by any person making use
of the Service or Equipment provided to you. (v) Trademarks and Other
Intellectual Property: The Service and Equipment, together with any
firmware or software embedded in the Equipment or used to provide the
Service, or furnished to Subscriber in conjunction with the Service or
Equipment, and all information, documents and materials on any Sipmedia
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 Sipmedia are, and shall remain,
the exclusive property of Sipmedia. Nothing in this Agreement shall
grant you any ownership right or license to use such Marks. You
acknowledge that you are not given any license to use the firmware or
software embedded in the Equipment or used to provide the Service, or
furnished to Subscriber in conjunction with the Service or Equipment,
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. You also
agree that the Equipment is exclusively for use in connection with the
Service. If you decide to use the Service through some other kind of
device not provided by Sipmedia, which Sipmedia 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 alternate device with the Service, and you will
indemnify and hold harmless Sipmedia against any and all liability
arising out of your use of such alternate device with the Service.
(vi) No Tampering With Equipment: You agree not to change the
electronic serial number, MAC address or equipment identifier of the
Equipment, or to perform a factory reset of the Equipment, or to
otherwise modify the Equipment in any way without express permission
from Sipmedia in each instance. Sipmedia reserves the right to terminate
your Service should you tamper with the Equipment. If this happens, you
will be responsible for the full month's charges to the end of the
current month, including without limitation, unbilled charges, plus a
disconnect fee of $119 per Cisco ATA-186, SPA 2000 or like device, all
of which immediately become due and payable.
(vii) Theft of Service: You agree to notify Sipmedia immediately,
in writing or by calling the Sipmedia MyPhoneCompany customer support
line or by submitting an e-mail to Customer Care on the Sipmedia
website, if the Equipment is stolen or if you become aware at any time
that your Service is being stolen or fraudulently used. You must provide
your account number and a detailed description of the circumstances.
Failure to do so in a timely manner may result in the termination of
your Service and additional charges to you. You will be liable for all
use of the Service even through Equipment stolen from you, including any
and all stolen Service or fraudulent use of the Service or Equipment, as
well as the value of the Equipment itself.
(viii) Return of Equipment Upon Termination of Service: You
acknowledge and agree that if the Equipment is furnished to you without
separate or additional charge, it is being done so in consideration for
your subscribing for the Service and continuing to pay for the Service
that you use. Upon termination or other discontinuance of the Service
for any reason, except for Equipment which you have purchased from us,
you agree to return to Sipmedia, within fourteen (14) days, all
Equipment which has been furnished to you by us. You must obtain a
Return Merchandise Authorization (RMA) from Sipmedia (see Subsection
5(d) below for instructions) prior to returning any Equipment. The
Equipment must be returned undamaged, in its original packaging and with
all original documentation. Upon termination or other discontinuance of
the Service for any reason, pending Sipmedia's receipt and inspection of
the Equipment, Sipmedia initially will impose a charge against your
account in the amount of $119 per Cisco ATA-186, SPA 2000 or like
device. Upon your return of the Equipment in compliance with this
section, and upon Sipmedia's receipt and verification of the condition
of the returned Equipment, you will receive a credit for up to the full
amount of the $119 per device charge. The final determination of the
condition of each item of returned Equipment shall be within the sole
judgment of Sipmedia. In the event that you purchased your Equipment
from Sipmedia or you otherwise utilized your own equipment to access the
Service, the foregoing terms and conditions of this subparagraph
2(d)(vii) shall not apply.
-
No 911
Service: You acknowledge and understand that that the Service does not
include "911" emergency dialing. EQUIPMENT AND SERVICES DO NOT SUPPORT 911
OR OTHER EMERGENCY FUNCTIONS. In the event of an emergency, you will not
be able to use the Equipment or the Service to summon assistance through
the 911 system. In case of emergency, you will have to use a different
instrument that reaches the 911 emergency system in another way. You agree
that you are responsible for informing any household residents, guests and
other third persons who may be present at the physical location where you
utilize the Service, that no traditional 911 or E911 dialing is available
from your MyPhoneCompany Enhanced Internet Voice Service and the
Equipment.
-
Loss of
Service Due to Power Failure or Internet Service Outage: You
acknowledge and understand that the Service does not have its own power
supply, and in the event of a power failure, the Service will not work
without an independent power supply. Accordingly, just as cordless phones
will not work without electrical power, the Service will not work during
an electrical power outage at the premises where Service is provided. The
Service also will not function if an electrical power outage affects the
Sipmedia network or the function of your Broadband Internet Service. The
Service will resume only when the power is restored. EQUIPMENT AND
SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER OR PROPER
NETWORK CONNECTION AND FUNCTION. A power failure or disruption may require
you to reset or reconfigure the Equipment prior to utilizing the Service.
In addition, since the Service utilizes and is dependent upon your
Broadband Internet Service, you acknowledge and understand that the
MyPhoneCompany Service will not function at all if your Broadband Internet
Service is interrupted for any reason, and MyPhoneCompany Service will not
be restored until your Broadband Internet Service is restored.
-
Transfer of Your Number Upon Termination of MyPhoneCompany Service:
You acknowledge and agree that any telephone number provided by Sipmedia
to you shall be leased and not sold. This means that you do not obtain or
retain any right, title or interest in or to the number upon the
conclusion or other termination of your Service. Upon termination of your
Service for whatever reason, you may request that we release the telephone
number that corresponded to your Service. In our sole discretion, we will
decide whether to release that number.
-
Distinctions Between MyPhoneCompany Service and Telephone Service:
You acknowledge and understand that the MyPhoneCompany Service is a data
transfer service that works in conjunction with your existing Broadband
Internet Service. You acknowledge and understand that the MyPhoneCompany
Service is not a telephone service. Important distinctions exist between
telephone service and the MyPhoneCompany Enhanced Internet Voice Service
provided by Sipmedia. The Service is subject to different regulatory
treatment than phone service. This treatment may limit or otherwise affect
your right to bring any complaints before Federal and State
telecommunications regulatory agencies.
3. Charges and Payments:
-
All Services,
Equipment deliveries and the performance of any other responsibilities
required of us under this Agreement shall at all times be subject to
credit approval or review by Sipmedia. You agree to provide such credit
information or assurance as is requested by us at any time.
-
You agree to
pay Sipmedia for all charges invoiced to your account, including, but not
limited to, set-up or Activation fees (if any), monthly Service fees,
international usage charges, advanced feature charges, Equipment charges,
and any other applicable fees. Monthly service fees are paid in advance of
each month's service, and toll charges and any other applicable charges
are billed at the end of each month's service. You must give us a valid
credit card number when the Service is Activated. If the credit card
expires, or if you close your account or your billing address changes, or
if the credit card is cancelled and replaced owing to loss or theft, you
must advise us without delay. We will bill all charges monthly to your
credit card. We also reserve the right to bill at more frequent intervals
if the amount due at any time exceeds $50.
-
For all
Service Plans which include per-minute charges, there is a minimum call
duration of Sixty (60) seconds. After the initial minimum, the duration of
each call is calculated and billed in one-minute increments, with each
call rounded up to the next full minute. Rates for the Service, Equipment,
installation and all related services under this Agreement are subject to
change in accordance with applicable law.
-
In the event
of any error in your invoice or other billing dispute, you must notify us
in writing within fourteen (14) days after receiving your credit card
statement containing the charges that you are attempting to dispute. Your
failure to submit a timely notice of dispute will be deemed a waiver of
such dispute. Billing disputes should be directed to the following
address:
You can call 611 from your MyPhoneCompany phone.
Or, you can call us toll free from any phone at 1-800-MPC-6922
(1-800-672-6922).
Email: cc@myphonecompany.com
-
All payments
for MyPhoneCompany Service shall be made by credit card. Each month we
will bill your card account for all charges arising during that billing
cycle. Your initial use of the Service authorizes Sipmedia to charge the
credit card account that you provided to us when you subscribed for the
Service. This will include any changed credit card account information
given to us if the card expires or is replaced. This authorization will
remain valid until 30 days after we receive your written notice
terminating our authority to charge your credit card. We may terminate
your Service at any time in our sole discretion if any charge to the
credit card account that we have on file for you is declined or reversed,
or in case of any other non-payment of account charges. In the event of
any declined or reversed credit card payments, or in case of any other
non-payment of account charges, you will remain fully liable to Sipmedia
for all charges accrued before termination and for all charges incurred by
us owing to your non-payment. These include, but are not limited to, late
fees equal to the lesser of 1.5% per month or the maximum allowed by law,
collection costs, declined or reversed credit card expenses, and
reasonable attorney's fees and disbursements. This is in addition to any
other remedies that may be available to us by law.
-
You are
responsible for, and shall pay any applicable federal, state, 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 any Equipment. Such amounts are in
addition to payment for the Service or Equipment and will be billed to
your account. If you are exempt from payment of such taxes, you must
provide us with an original government-issued certificate attesting to
tax-exempt status. In such a case, your tax exemption will apply only from
and after the date we receive the qualifying tax exempt certificate. If we
honor your tax exempt certificate, you agree to defend, indemnify and hold
us harmless from and against any claims or penalties imposed against us by
any taxing authorities in connection with your subscription for the
Service or your use thereof.
4. Term and Termination:
-
Term:
The initial term of this Agreement ("Term") begins on the date that we
Activate your Service and ends on the day which is exactly one calendar
month following the date of Activation. Thereafter, this Agreement
automatically renews on a monthly basis without further action by you
unless you give us written notice of non-renewal at least ten [10] days
before the end of the monthly term in which the notice is given. You
acknowledge that upon each such automatic renewal, all pricing is subject
to change. You understand and agree that you are purchasing the Service
for full monthly terms. This means, if you attempt to terminate Service
prior to the end of any monthly term, you will be responsible for the full
month's charges for that month, including without limitation unbilled
charges and a disconnect fee of $119 per Cisco ATA-186, SPA 2000 or like
device, all of which immediately become due and payable. Even if you give
timely notice of cancellation of the Service, or if the Term of this
Agreement has expired or the Service is otherwise terminated, you still
are responsible for paying the disconnect fee and all unpaid, accrued
charges due in relation to the Agreement.
-
Termination:
We reserve the right to suspend or discontinue providing the Service
generally, or to terminate your Service, at any time in our sole
discretion. If we do discontinue providing the Service generally, or if we
terminate your Service in our discretion without a stated reason, you will
be responsible only 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,
dishonor of the credit card number that you provided for payment of your
account, violation of this Agreement, or because of any improper use of
the Service or Equipment (such as, but not limited to, your attempts to
hack, disrupt, or misuse the Service), you will be responsible for the
full month's charges to the end of the current monthly term, including
without limitation unbilled charges and a disconnect fee of $119 per Cisco
ATA-186, SPA 2000 or like device, all of which immediately become due and
payable.
-
Termination
for Bankruptcy or Insolvency:
We reserve the right to terminate this Agreement immediately in the event
that you make a general assignment of your assets for the benefit of
creditors, or in the event that a voluntary or involuntary petition is
filed by or against you under any laws relating to bankruptcy or
reorganization.
-
Termination
For Breach: This Agreement may be terminated at our option, and our
Equipment may be removed, in the event of any breach of this Agreement by
you, including without limitation (i) your failure to pay for the
Services, (ii) any breach of our Acceptable Use Policy (printed as Annex A
at the end of this Subscriber Agreement) committed by you or any user of
the Services at your premises or through your Equipment, (iii) fraud or
suspected fraud in connection with the use of the Service or your
Equipment, (iv) your failure to abide by the rates, rules and regulations
of Sipmedia and its third-party providers, or (iv) your use of the Service
which, in our sole judgment, threatens the Services, the Sipmedia network
or the network of any of our third-party providers. If we delay or
otherwise fail to remove our Equipment, this shall not be deemed
abandonment of the Equipment by us. You shall be required to pay our
reasonable collection and/or attorney's fees in the event that we find it
necessary to enforce collection or to preserve and protect our rights
under this Agreement. If we reinstate your Service following a rumination
for breach, you may be required to pay a reactivation fee.
-
Obligations
Upon Termination: Upon termination of this Agreement for any reason,
you will be responsible for (i) payment in full for your use of the
Equipment and Services either to the effective date of termination or the
date on which the Service has been disconnected, whichever is later; (ii)
prompt return of all Equipment to Sipmedia or its designee, as specified
above (except for Equipment which you have purchased from us); and (iii)
payment of a refundable disconnect fee of $119 per Cisco ATA-186, SPA 2000
or like device.
-
Renewal after
Cancellation or Termination:
You acknowledge and agree that, in the event of renewal after cancellation
or termination of Service, you will be subject to the pricing, warranties
and terms of Service as are effective at the time of such renewal.
5. Money-Back Guarantee:
-
Sipmedia
provides you with a 14-day money-back guarantee, applicable to one primary
line per account, but not to additional or secondary lines. Under terms of
this Money-Back Guarantee, we will refund the Activation fee (if any),
first month of service and shipping charges. We reserve the right to
terminate or revoke the Money-Back Guarantee at any time, without prior
notice.
-
In order to be
eligible for the Money-Back Guarantee, you must cancel your Service within
fourteen (14) days of the day your account is Activated. Equipment must be
returned within 14 days. Usage must not exceed 300 minutes within the
first 14 days of Service. You are responsible for any charges for overage,
international traffic or directory assistance. Accounts exceeding 300
minutes of usage are not eligible for refund.
-
All returned
Equipment must be in the original packaging with the UPC or bar code
intact. All components, manuals and registration card(s) must be included.
Equipment must be returned with a valid return authorization number
obtained from Sipmedia Customer Care. You are responsible for return
shipping of Equipment. The Money-Back Guarantee will not be honored if you
fail to meet any of the requirements detailed in this Section 5.
-
To obtain a
return authorization number, you must contact Sipmedia at:
You can call 611 from your MyPhoneCompany phone.
Or, you can call us toll free from any phone at 1-800-MPC-6922
(1-800-672-6922).
Email:
customercare@sipmedia.com
Note: You must insert "RMA Request" in the subject line of the e-mail.
6. Privacy:
-
At Sipmedia,
we are committed to respecting your privacy. Once you choose to provide
personally identifiable information, it will only be used in the context
of your customer relationship with us. We will not sell, rent, or lease
your personally identifiable information to others. Unless required by law
or your prior permission is obtained, we will share the personal data you
provide only with other Sipmedia entities and/or business partners who are
acting on our behalf to complete the activities described herein. Such
entities and/or national or international business partners are governed
by our privacy policies with respect to the use of this data. We also
reserve the right to use personally identifiable information to
investigate and help prevent potentially unlawful activity that threatens
either Sipmedia or any company affiliated with us. Moreover, upon the
appropriate request of a government agency, law enforcement agency, court
or as otherwise required by law, we may disclose personally identifiable
information.
-
Notwithstanding everything we have said above about respecting your
privacy, you understand and agree that our Service utilizes, in whole or
in part, the public Internet and third-party networks to transmit voice
and other communications. We are not responsible or otherwise liable for
any lack of privacy which may be experienced with regard to your Broadband
Internet Service or your use of our Service through your Broadband
Internet Service.
-
For additional
information about our Privacy Policy, please refer to
privacy policy.
7. Technical Support:
We will provide you and the other users of your Service with technical
support in accordance with our policies and procedures then in effect. Our
technical support is limited to the Services and the Equipment provided
under this Agreement. Our technical support may be rendered as available via
e-mail or telephone by us or one of our partners. Support for other
applications and uses is not provided or implied.
8. Warranty; Limitation of Liability; Indemnification:
-
Limitation of
Liability:
Neither Sipmedia nor any of its partners or affiliated entities shall be
liable for any delay or failure to provide the Service at any time or from
time to time, or any interruption or degradation of voice quality, or any
damage to other equipment on your premises or your network, that is caused
by any of the following:
(i) act or
omission of an underlying carrier, service provider, vendor or other
third party;
(ii) Equipment, network or facility failure;
(iii) Equipment, network or facility upgrade or modification;
(iv) Equipment, network or facility shortage;
(v) Equipment or facility relocation; or
(vi) Service, equipment, network or facility failure caused by events of
force majeure including, but not limited to, acts of god; strikes; fire;
war or acts of terrorism; riot; government actions; also, power outages;
cable cuts; other failure of an incoming or outgoing communications; the
inability of communications to be connected or completed; degradation of
voice quality; and all other causes beyond the control of Sipmedia.
-
Limitation
of Damages: Sipmedia's liability for any failure or mistake shall in
no event exceed the Service charges actually paid by you with respect to
the affected time period. In no event shall Sipmedia, its officers,
directors, employees, affiliates or agents or any other service provider
who furnishes services to you in connection with this Agreement or the
Service be liable for any incidental, indirect, special, punitive,
exemplary or consequential damages, or for any damages, including but not
limited to loss of data, loss of revenue or profits, or arising out of or
in connection with the use or inability to use the Service, including the
inability to dial 911 or to access emergency service personnel through the
Service. The limitations stated here apply to claims founded in breach of
contract, breach of express warranty, breach of implied warranty, products
liability, tort, negligence of Sipmedia or our vendors, and any and all
other theories of liability. Such limitations apply whether or not
Sipmedia was informed of the likelihood of any particular type of damages.
-
Indemnification: You agree to defend, indemnify, and hold harmless
Sipmedia, its officers, directors, employees, affiliates and agents and
any other service provider who furnishes services to you in connection
with this Agreement or the Service, from any and all claims, losses
(including personal injury or death), damages, fines, penalties, costs and
expenses (including, without limitation, reasonable attorneys fees)
arising out of (i) your subscription for the Service; (ii) your personal
use of the Service or Equipment, or the use of your Service or Equipment
by any other person; or (iii) your inability or the inability of any other
user of your Service to dial 911 or to access any emergency response
system or personnel. In the event of your breach of the terms of this
Agreement, including without limitation, failure to pay any sum due
hereunder, or in the event of any breach by any other person using the
Services or Equipment furnished to you, you shall reimburse Sipmedia for
all attorney, court, collection and other costs incurred by Sipmedia in
the enforcement of our rights hereunder and we may keep any deposits or
other payments which previously have been made by you.
-
Limitation
of Warranty: Except for our undertaking to maintain the quality of the
Sipmedia network in accordance with industry standards and reasonable
commercial practice, Sipmedia makes no warranties, express or implied,
including but not limited to, any implied warranties of merchantability or
fitness of the Service or the Equipment for a particular purpose. Sipmedia
does not warrant that the Service or Equipment will be without Service
failure, delay, interruption, error, degradation of voice quality or loss
of content, data or information. Neither Sipmedia nor its officers,
directors, employees, affiliates or agents or any other service provider
or vendor who furnishes services or products to you in connection with
this Agreement or the Service or Equipment will be liable for unauthorized
access to our or to your transmission facilities or premises equipment or
for unauthorized access to, or alteration, theft or destruction of, your
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 our or any of our service providers' or
vendors' negligence. Statements and descriptions concerning the Service or
Equipment, if any, by us or by any agents or installers purporting to act
on our behalf are informational only, and are not given as a warranty of
any kind. Our liability is limited to repair, replacement, credit or
refund. We may elect to provide a refund in lieu of credit, replacement or
repair. To the extent that any warranties may be found to exist on the
Equipment, such warranties cover only the defects arising under normal use
and do not include malfunctions or failures resulting from misuse, abuse,
neglect, alteration, modification, improper installation, or repairs by
anyone other than Sipmedia or its designee.
-
Limitation
of Time for Claims: Any claim against Sipmedia in connection with any
failure of the Service must be made within 90 days of the event of the
claim or 90 days from the termination of Service, whichever is earlier.
Sipmedia shall have no liability for any claims related to the provision
or failure of the Service that are not timely submitted with the specified
90-day period.
-
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.
-
Content:
You understand that you are responsible for any and all liability that may
arise out of the content transmitted by or to you or any other persons
using your Equipment or Services. You shall make certain that your use of
the Services, Equipment and content, and the use of the same by any other
person using your equipment, will at all times comply with all applicable
laws, regulations and written and electronic instructions for use. We
reserve the right to terminate or suspend affected Services, and/or remove
your or any other user's content from the Services, if we determine that
such use or content doer not conform with the requirements set forth in
this Agreement or interferes with our ability to provide Services to you
or others, or if we receive notice from anyone that your or any other
user's use or content may violate any laws or regulations. Our actions or
inaction under this subparagraph shall not constitute review or approval
of your content or the content of any other user of your Equipment or
Service. You agree to indemnify and hold Sipmedia harmless against any and
all liability arising from the content transmitted by you or to you, or by
or to any other user of your Equipment or Service. When we use the term
"user," we mean any person, whether authorized or unauthorized, using the
Service and/or Equipment provided to you. We have no obligation to monitor
Service content. However, you acknowledge and agree that we have the right
to disclose any information as necessary to satisfy any law, regulation or
other governmental request, to operate our Service properly, or to protect
ourselves and our other Subscribers.
-
Subscriber
Property: We assume no liability for the condition or repair of any of
your owned hardware or software, including your Computer and Modem. You
are solely responsible for the repair and maintenance of all such hardware
and software that you may use in connection with the Service.
9. Governing Law; Resolution Of Disputes:
-
Governing Law:
The Agreement and the relationship between you and Sipmedia shall be
governed by the laws of the State of New York without regard to its
conflict of law provisions. Subject to the provision in the next
subparagraph pertaining to mandatory arbitration, you and Sipmedia agree
to submit to the personal and exclusive jurisdiction of the courts located
within the Borough of Manhattan in the City and State of New York.
-
Mandatory
Arbitration:
Any dispute or claim between you and Sipmedia arising out of or relating
to the Service or Equipment 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. The arbitration shall be conducted within the Borough
of Manhattan in the City and State of New York. The arbitrator's decision
shall follow the plain meaning of the relevant documents, and shall be
final and binding. Without limiting the foregoing, the parties agree that
no arbitrator has the authority to: (i) award relief in excess of what
this Agreement provides; or (ii) award punitive or exemplary damages.
Judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. All claims shall be arbitrated
individually, and you agree not to bring or join a punitive or certified
class action to arbitration or seek to consolidate or bring previously
consolidated claims in arbitration. You acknowledge that this arbitration
provision constitutes a waiver of any right to a jury trial.
10. Miscellaneous:
-
The failure of
Sipmedia to exercise or enforce any right or provision of this Agreement
shall not constitute a waiver of such right or provision at that time or
on any other occasion in the future.
-
If any
provision of the Agreement is found by a court of competent jurisdiction
to be invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties' intentions as reflected in the
provision, and the other provisions of the Agreement remain in full force
and effect.
-
You agree that
regardless of any statute or law to the contrary, and subject to any other
time period specified in Subsection 8(e) or elsewhere in this Agreement,
any claim or cause of action arising out of or related to use of the
Service or the Agreement must be filed within one (1) year after such
claim or cause of action arose, or be forever barred.
-
The Agreement
and the Equipment supplied by Sipmedia are not assignable or otherwise
transferable by you or any other person falling within the definition of
"Subscriber." Sipmedia may assign this Agreement or any or all of its
rights or responsibilities under this Agreement at any time to any
affiliated company or to any merger partner.
-
You agree, on
behalf of yourself and all users having access to your Service and/or
Equipment, to comply with all U.S. Export laws concerning the transmission
of technical data and other regulated materials via the Services. You
agree to comply with applicable local, state and federal regulations
governing the locality in which the Equipment and Services are used.
11. Amendment:
Sipmedia may, in its sole discretion, change, modify, add or remove portions
of the MyPhoneCompany Enhanced Internet Voice Service and the terms and
conditions applicable to the Service at any time. Sipmedia may notify you of
any such changes by posting notice of such changes on the Sipmedia or the
MyPhoneCompany Enhanced Internet Voice Service Web site, or by sending
notice via e-mail or postal mail. You are responsible for providing Sipmedia
with any change of e-mail or postal mail address. Notice will be considered
received by you, and such changes will become binding on you, on the date
posted to the Sipmedia or the MyPhoneCompany Enhanced Internet Voice Service
Web site and no further notice by us is required. Any posted changes will
supersede all previously agreed to electronic and written Terms of Service.
Your continued use of the MyPhoneCompany Enhanced Internet Voice Service
following notice of such change, modification or amendment shall be deemed
to be your acceptance of any such modification. If you do not agree to any
modification of the MyPhoneCompany Enhanced Internet Voice Service and/or
its terms and conditions, you must immediately cease using the Service and
notify Sipmedia that you are terminating the Service. In addition,
MyPhoneCompany Enhanced Internet Voice Service and/or its terms and
conditions are subject to change in compliance with applicable law.
12. Multiple Users:
You acknowledges that by "clicking" the Acceptance icon below and/or by
using the MyPhoneCompany Enhanced Internet Voice, you are agreeing to the
terms and conditions of this Agreement on behalf of all persons who use the
MyPhoneCompany Enhanced Internet Voice Service or the Services through the
Equipment or your account. You will be responsible for ensuring that all
person who use the Service understand and comply with the terms and
conditions of this Agreement. You acknowledge and agrees that you are
responsible and liable for any and all breaches of the terms and conditions
of this Agreement, whether such breach is the result of use of the
MyPhoneCompany Enhanced Internet Voice Service.
13. Entire Agreement:
This Agreement and the rates for Services found on the Sipmedia or
MyPhoneCompany Enhanced Internet Voice Service Web site constitute the
entire agreement between you and Sipmedia and govern your use of the
Service, superseding any prior agreements between you and Sipmedia and any
and all prior or contemporaneous statements, understandings, writings,
commitments, or representations concerning its subject matter. No
undertaking, representation or warranty made by any agent or representative
of Sipmedia or any other entity in connection with the sale, installation,
maintenance or removal of MyPhoneCompany Enhanced Internet Voice Service
shall modify or amend any of the terms or conditions or Service in this
Agreement or posted on the Sipmedia or MyPhoneCompany Enhanced Internet
Voice Service Web site. No waiver or amendment to this Agreement or these
terms and conditions shall be binding on Sipmedia unless made in writing
expressly stating that it is such a waiver or amendment and signed by an
officer of Sipmedia. Your application and subscription for Service shall be
deemed submitted when we receive, via our website, your electronic
acceptance of all the terms and conditions contained in this Agreement, and
when you receive a confirmation e-mail that we have received your
submission.
ANNEX A: DETAILED SIPMEDIA ACCEPTABLE USE POLICY ("AUP")
In general, customers may not use the Sipmedia network, Equipment or
Services in any manner which:
-
Violates any
applicable law, regulation, treaty or tariff
-
Violates the
acceptable use policies of any networks, machines, or services which are
accessed through Sipmedia's network
-
Infringes on
the intellectual property rights of Sipmedia or others
-
Violates the
privacy of others
-
Involves
deceptive or other improper telemarketing or other online marketing
practices, including, without limitation, practices that violate the
United States Federal Trade Commission's guidelines for proper
telemarketing or other online marketing schemes; or
-
Otherwise
violates this AUP.
Prohibited activities also include, but are not limited to, the following:
-
Attempting to
interfere with or denying service to any user or host (e.g., denial of
service attacks)
-
Falsifying
header information, user identification or user information;
-
Introduction
of malicious programs into the network (e.g., viruses, worms, Trojan
horses, etc.)
-
Monitoring or
scanning the networks of others without permission (e.g., port scan);
-
Attempted or
successful security breaches or disruption of Internet communication,
including without limitation accessing data, machines or networks of which
you are not an intended recipient or user, or logging into a server or
account that you are not expressly authorized to access (e.g., hacking or
cracking);
-
Executing any
form of network monitoring (e.g., packet sniffer) which will intercept
data not intended for your use;
-
Using any
program/script/command, or sending messages of any kind, designed to
interfere with a third party customer terminal session, via any means,
locally or via the Internet;
-
Making any
telemarketing calls through the use of Sipmedia Equipment or through the
Sipmedia network to any person or business in violation of any federal or
state "Do Not Call" regulations, or any other federal or state consumer
protection regulations;
-
Use of
Sipmedia Equipment or the Sipmedia network with any automated dialing
mechanisms or other predictive dialing systems that violate any federal or
state statutes or regulations;
-
Sending
unsolicited commercial e-mail or unsolicited bulk e-mail (e.g., UCE, UBE,
or spamming) through the use of Sipmedia Equipment or through the Sipmedia
network; or sending unsolicited commercial or bulk e-mail through another
provider advertising or implicating, directly or indirectly, the use of
any Service provided by Sipmedia, including without limitation e-mail,
web, FTP and DNS Services;
-
Providing
(with or without an associated fee) automated tools, software and/or
support services that allow others to engage in improper telemarketing or
spamming;
-
Maintaining an
open relay mail server; ยท collecting e-mail addresses from the Internet
for the purpose of sending unsolicited e-mail or to provide collected
addresses to others for that purpose (e.g., database scraping and/or
database harvesting);
-
Transmitting
or receiving copyright infringing material, including but not limited to
copyrighted music, video, software, books, programs or other published
material;
-
Transmitting
or receiving obscene, indecent, offensive, racist, defamatory,
unreasonably violent, threatening, intimidating or harassing material;
-
Export Control
Violations - The law limits the ability of persons to export encryption
software, over the Internet or otherwise, to points outside the United
States; or
-
Other
Activities, whether lawful or unlawful, that Sipmedia or any of its third
party providers or peering partners determines to be harmful to its
customers, subscribers, operations or reputation, including any activities
that restrict or inhibit any other user from using and enjoying the
Service or the Internet.
Without in any way limiting Sipmedia's rights under this AUP and/or the
Subscriber Agreement, Subscribers or users of your Service who make
unsolicited or other improper telemarketing calls or who send unsolicited
commercial or bulk e-mail agree to pay Sipmedia the cost of Sipmedia labor
to respond to complaints, with a minimum charge of $200.00.
As we have pointed out, the responsibility for avoiding the harmful
activities just described rests primarily with the Subscriber. Sipmedia will
not, as an ordinary practice, monitor the communications of Subscribers or
other users of your Service to ensure that you or they comply with Sipmedia
policy or applicable law. When Sipmedia becomes aware of harmful
communications, or when it is notified or becomes aware of actual or
potential violations of this AUP, Sipmedia may take any action to stop the
harmful activity, including but not limited to suspending or terminating the
Service; and/or taking any other actions as deemed appropriate by Sipmedia.
Sipmedia shall have the sole discretion to determine which action is
appropriate under the circumstances. Sipmedia may take action immediately
without regard to any cure periods that may be set forth in the Subscriber's
applicable Service Agreement. Sipmedia shall have the sole right to
interpret the meaning of any provision of this AUP or whether a Subscriber's
or any user's or account holder's activity violates this AUP |