1.         Definitions:

(a)      “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.

(b)      Broadband Internet Service: Internet access which is delivered over high speed cable, DSL, T1 lines, or other means of high-speed access.

(c)      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.

(d)      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.

(e)      Modem:  A device that converts and transmits data over cable or DSL lines.

(f)       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:

(a)      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.

(b)      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.

(c)      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).

(d)      Use of Service and Equipment:  

(i)               Personal Residential Use:  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 commercial 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:  By entering into this 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.

(e)      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.

(f)       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.

(g)      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.         911 Emergency Service:

(a)      No Traditional 911 Service:  PLEASE NOTE: IF MYPHONECOMPANY E911 SERVICE IS NOT AVAILABLE IN YOUR AREA OR ON YOUR PARTICULAR PHONE NUMBER, THEN THERE IS NO WAY FOR YOU TO REACH EMERGENCY SERVICE BY DIALING 911. You acknowledge and understand that that the Service does not include “911” emergency dialing which operates in the same manner as traditional telephone emergency dialing. In the event of an emergency, you will not be able to use the Equipment or the Service to summon assistance through the traditional 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 dialing is available from your MYPHONECOMPANY Enhanced Internet Voice Service and the Equipment. 

(b)      MYPHONECOMPANY E911 Service:  MYPHONECOMPANY E911 Service is a limited emergency calling service available only on Sipmedia-certified Equipment. MYPHONECOMPANY E911 Service cannot be used in connection with a Soft Phone or Virtual Numbers. The MYPHONECOMPANY E911 Service is not automatic and currently is not available in every location or for every MYPHONECOMPANY phone number. In the areas and for those numbers where MYPHONECOMPANY E911 Service is available, there are things you must do, as described in this Agreement and on our website, to register the physical location of your Equipment with Sipmedia. If you are in an area where the MYPHONECOMPANY E911 Service is available generally but not for your particular phone number, you may select a new telephone number in that same area has MYPHONECOMPANY E911 Service immediately available. You must do this for each MYPHONECOMPANY phone number for which you subscribe. You will receive an e-mail message confirming that your Service has been activated, and confirming whether MYPHONECOMPANY E911 Service is functional.

(c)      Additional Service Fees Applicable to E911 Service:  In accordance with U.S. federal regulations, you are not permitted to “opt out” of the MYPHONECOMPANY E911 Service. You will be subject to a one-time provisioning fee of $15.00 and a monthly service fee of $1.50 for MYPHONECOMPANY E911 Service. The provisioning fee and monthly E911 Service fee are in addition to the applicable residential or business plan charges for the associated line. The monthly fee for E911 Service is assessed on a “per-line” (meaning “per phone number”) basis. It is intended to reimburse Sipmedia for the direct and indirect costs it incurs in providing the E911 Service, including state, county or municipal E911 surcharges, E911 Automatic Location Information (ALI) database storage, line information database and caller ID expenses, and any other taxes or surcharges directly or indirectly associated with the provision of E911 Service. Sipmedia reserves the right to modify the charges associated with the provision of E911 Service in order to reflect increases or decreases in the costs incurred by Sipmedia.

(d)      Operation of E911 Service:  When you dial 911 on a Sipmedia phone line with MYPHONECOMPANY E911 Service, Sipmedia will utilize the location information provided by you at the time of Activation of your Service, or as updated by you from time to time. You acknowledge and understand that any enhanced location information passed to an emergency operator by Sipmedia will be based upon the physical location on file with Sipmedia.  You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location. You are responsible to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of the MYPHONECOMPANY E911 Service as compared with traditional 911 or E911 dialing. The documentation that accompanies each item of Equipment that you received from Sipmedia should include a sticker or card concerning the potential non-availability of traditional 911 or E911 dialing (the “911 Card”). It is your responsibility, in accordance with the instructions that accompany each item of Equipment, to place the 911 Card on each item of Equipment that you use with the Service. If you did not receive a 911 Card with your Equipment, or you require additional 911 Cards, please contact our customer care department at cc@myPhoneCompany.com.

(e)      Unique Characteristics of MYPHONECOMPANY E911 Service:  You further acknowledge that the MYPHONECOMPANY E911 Service operates with certain characteristics that distinguish it from traditional, legacy, circuit-switched 911 service, as well as other E911 services such as those associated with mobile telephones. These characteristics may make the MYPHONECOMPANY E911 Service unsuitable for you. Because your circumstances may be different from those of other subscribers, you should carefully evaluate your own circumstances when deciding whether to rely upon the MYPHONECOMPANY E911 Service. You acknowledge that it is your responsibility to determine which technology or combination of technologies is best suited to meet your emergency calling needs. You also agree and undertake to make the necessary provisions for access to emergency calling services (such as maintaining a conventional landline phone or wireless phone as a backup means of completing emergency calls). Please note the following ways in which the MYPHONECOMPANY E911 Service is different from traditional, legacy, circuit-switched 911 or other E911 services:

(i)               MYPHONECOMPANY E911 Service will not function if your telephone or any instrument connected to the Equipment fails or is not configured correctly, or if your MYPHONECOMPANY or other Sipmedia Service is not functioning for any reason, including, but not limited to, electrical power outage, broadband service outage, or suspension or disconnection of Service because of billing or other issues. If there is a power outage, you may be required to reset or reconfigure your Equipment before being able to use the MYPHONECOMPANY or other Sipmedia Service, whether for regular or for E911 purposes. In addition, your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the MYPHONECOMPANY E911 Service, may not function. You acknowledge that neither Sipmedia nor any of its Affiliates or service partners is responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including MYPHONECOMPANY E911 Service, that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.

(ii)              After an initial Activation of the MYPHONECOMPANY E911 Service, there may be some delay before the automatic number and location information is passed through to the local emergency service operator. This delay could be as much as 5 days after the Service is activated. Since processing by the local emergency service operator is not within the control of Sipmedia, Sipmedia cannot guarantee that the automatic number and location information will be activated within this timetable. If you change your number or add or port new numbers to your account, the MYPHONECOMPANY E911 Service will not function, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.

(iii)            It is possible that the local emergency service operator which would receive MYPHONECOMPANY E911 Service calls may not have a system configured for E911 services and may not be able to capture and/or retain automatic number or location information. This means that the operator may not know the phone number or physical location of the person who is making the MYPHONECOMPANY E911 call. You will need to state the nature of your emergency promptly and clearly, including your location and your telephone number, as you cannot assume that the operator will have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason. Due to technical factors in network design, and in the event of network congestion, there is a possibility that a MYPHONECOMPANY E911 call will produce a busy signal or will experience unexpected answering wait times, or that it will take longer for the local emergency service operator to answer than for other 911 calls placed over traditional, legacy, circuit-switched telephone networks or other E911 services.

(iv)            If you do not correctly identify the actual location where your Sipmedia MYPHONECOMPANY Equipment will be located at the time of Activation of the Service, or if you do not provide updated location information to Sipmedia in the event that you move your Equipment to another place, then your MYPHONECOMPANY E911 Service calls may not be directed to the correct local emergency operator.

(f)       Registration of Physical Location Required:   For each phone number that utilizes the Service, you must register with Sipmedia the physical location where you will be using the Service with that phone number. When you move your Equipment to another location, you must register your new location. If you do not register your new location, any call you make using the MYPHONECOMPANY E911 Service may be sent to an emergency center near your old address or the place where you last used the Service with your Equipment. You will register your initial location of use when you subscribe to the Service.  Thereafter, you may register a new location by following the instructions from the “911” registration link on your Sipmedia personal web account page www.myphonecompany.com/myaccount.aspx . Any change in registered location will not be effective immediately. For purposes of the MYPHONECOMPANY E911 Service, you may register only one location at a time for each phone line you use with the Service.

(g)      Additional Terms and Conditions Pertaining to 911 and E911 Service:  You expressly acknowledge and understand that neither Sipmedia nor any of its Affiliates or provider partners will be liable for any Service outage and/or inability to dial 911 using Sipmedia or the MYPHONECOMPANY Service (whether normal or E911), or to access an emergency service operator due to the 911 dialing characteristics and limitations set forth in this Agreement. We do not have any control over whether, or the manner in which, calls using our MYPHONECOMPANY E911 Service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing MYPHONECOMPANY E911 Service calls to local emergency response centers and to a central emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Sipmedia nor its Affiliates, nor the officers, directors or employees of any of them, may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to the MYPHONECOMPANY E911 Service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Sipmedia, its Affiliates, officers, directors, employees, agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including MYPHONECOMPANY E911 Service, incorrectly routed MYPHONECOMPANY E911 Service calls, and/or the inability of any user of the Service to be able to use MYPHONECOMPANY E911 Service or access emergency service personnel.

(h)      Alternate 911 Arrangements:  PLEASE NOTE: IF MYPHONECOMPANY E911 SERVICE IS NOT AVAILABLE IN YOUR AREA OR ON YOUR PARTICULAR PHONE NUMBER, THEN THERE IS NO WAY FOR YOU TO REACH EMERGENCY SERVICE BY DIALING 911. In addition, if you are not comfortable with the limitations of the MYPHONECOMPANY E911 Service where it is available, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.

4.         Charges and Payments:

(a)      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.

(b)      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.

(c)       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. (c)      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.