netTALK.com Inc. Subscriber Agreement
This Agreement ("Agreement") is between netTALK.com Inc., and an end user of netTALK.com's enhanced voice communications services as described below. This Agreement governs both the services described below and any devices provided by netTALK.com for use in conjunction with the services, including but not limited to the "netTALK.com Equipment" (as defined herein). In this Agreement, "you" and "your" mean the customer of the netTALK.com services defined below, and "netTALK.com," "we," "our," and "us" mean netTALK.com Inc., and any netTALK.com affiliates authorized to provide you with netTALK.com services. BY ENROLLING IN, ACTIVATING, USING, OR PAYING FOR THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING THOSE PERTINENT TO 911 EMERGENCY DIALING, AND TO THE PRICES, CHARGES, TERMS AND CONDITIONS PROVIDED TO YOU WITH RESPECT TO THE SERVICE DURING THE SERVICE REGISTRATION PROCESS, INCLUDING IN MARKETING AND INFORMATIONAL MATERIALS ASSOCIATED WITH YOUR OFFER, AND ON THE netTALK.com SERVICE WEB SITE, ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THE AFOREMENTIONED TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES IMMEDIATELY BY CONTACTING netTALK.com AT www.nettalk.ca/contact FOR FURTHER DIRECTIONS. CERTAIN TELEWORKER OFFERS WILL CONTAIN ADDITIONAL TERMS AND CONDITIONS WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND WILL GOVERN IN THE EVENT OF A CONFLICT WITH THE TERMS OF THIS AGREEMENT.
netTALK.com Service is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol ("IP") and carried, in part, over high-speed Internet access, also known as broadband Internet service. This service may be generically referred to as "voice over IP". It is separate and distinct from standard netTALK.com Local, Local Toll and Long-Distance services. "Service" or "Services" is defined to include Voice over IP calling and certain calling and call management features or advanced features associated with the Service, including additional features or advanced features which netTALK.com, in its sole discretion, may add, modify, or delete from time to time.back to top
netTALK.com Service requires: (a) specialized customer premises equipment called a telephone adapter ("TK6000/DUO/DEVICES" or "netTALK.com Equipment") obtained through netTALK.com or a third party that allows connectivity from a regular telephone handset (which you need to supply) to your broadband connection and which you are responsible for installing yourself pursuant to instructions provided to you by netTALK.com or a third party supplier; and (b) a broadband connection via cable modem (2-way cable) or DSL with broadband capability of at least 128 Kbps upstream speed that you have a right to use at your own expense. Since voice over IP is dependent on the broadband connection, the availability of an adequate power supply and correct TK 6000/DUO/DEVICES configuration, netTALK.com does not guarantee that the service will be continuous or error-free. In addition, Service may, from time to time, be interrupted for equipment, network, or facility upgrades or modifications.back to top
a. PLEASE READ THE INFORMATION BELOW ABOUT 911 DIALING CAREFULLY. BY USING AND PAYING FOR THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO ALL OF THE INFORMATION BELOW REGARDING THE LIMITATIONS OF netTALK.com 911 EMERGENCY DIALING SERVICE, AND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR e911 CALLS.
netTALK 911 service is different from traditional wireline 911 and cellular/wireless 911, but it is a safe and reliable means of emergency dialing that may differ depending on where you are located, and the device used, when using your netTALK.com service.
netTALK.com customers have access to Enhanced 911 (E911), basic 911 or our national emergency call center. With E911 service, when you dial 911 your netTALK.com phone number and registered address is sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary. With basic 911, when you dial 911, local emergency operators answering the call may not see your netTALK.com telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your netTALK.com telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Once local emergency centers are capable of receiving our customers' information, we automatically upgrade customers with basic 911 to E911 service.
If you do not have access to either basic 911 or E911 for any reason, your 911 call will be sent to the netTALK.com national emergency call center, where a trained agent will ask for your name, telephone number, and location, and then transfer you to the local emergency center nearest to your location.
We require you to provide the physical address where you will be using our service for 911 purposes. For E911 and basic 911, this address is used to route 911 calls to your local emergency center. When you initially provide your physical address, it can take up to 120 minutes to verify your address and activate 911 service at this address. You will receive an email letting you know when 911 service is activated.
If you move this device to another location, you must update your address. You may register only one location at time. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. When you update your location, it can take several hours to activate 911 service at the updated address. You will receive an email letting you know when 911 service is activated at the updated address.
b. Please note that our 911 Dialing service will not function in the event of a broadband or power outage or if your broadband, Internet Service Provider (ISP), or netTALK.com phone service is terminated.
YOU ACKNOWLEDGE THAT netTALK.com DOES NOT OFFER PRIMARY LINE OR LIFELINE SERVICES, AND THAT netTALK.com STRONGLY RECOMMENDS THAT YOU ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.back to top
a. Privacy and Security
Voice over IP communication utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that netTALK.com cannot guarantee that voice over IP communication is completely secure. netTALK.com always respects your privacy and treats the content of all communications as private, except as may be required by law.
b. Power Outages
You acknowledge and understand that the Service does not function in the event of power failure. Should there be an interruption in the power supply; the Service will not function until power is restored. A power failure or disruption may require you to reset or reconfigure equipment prior to utilizing the netTALK.com Service.
c. Broadband Service Interruptions
You acknowledge and understand that the Service does not function in the event of interruption of your broadband or high speed Internet access service.
d. Home Security Systems and other Non-voice Communications Equipment
All non-voice communications equipment, including but not limited to, home security systems that are set up to make automatic phone calls, fax machines, modems and medical monitoring devices, may not be compatible with netTALK.com Service. By accepting this Agreement, you waive any claim against netTALK.com for interference with or disruption of such systems due to the Services.
e. Local Number Portability
In the event you are not utilizing a new phone number for your netTALK.com Service, but rather are transferring an existing phone number, which currently is subscribed to a carrier other than netTALK.com for local, local toll and/or long distances telecommunications services, to netTALK.com Service, the terms and conditions of this paragraph shall apply:
1) you hereby authorize netTALK.com to process your order for netTALK.com Service and to notify your local telephone company of your decision to switch your local, local toll and long distance services to netTALK.com Service, and represent that you are authorized to take this action;
2) you agree and acknowledge that if you set up your TK6000/DUO/DEVICES prior to the date that the number switch becomes effective ("Port Effective Date"), you will be able to make outgoing calls only over the phone you have connected to the TK6000/DUO/DEVICES. In such event, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able to both make and receive calls using the netTALK.com Service; and
3) you agree and acknowledge that if your TK6000/DUO/DEVICES is not yet activated as of the Port Effective Date, your existing phone service for the number you are transferring will be disconnected you will have no service for that line. Therefore, to avoid an interruption in your phone service, it is extremely important that you install the TK6000/DUO/DEVICES prior to, or on, the Port Effective Date. An estimate of the Port Effective Date will be sent to you via e-mail by netTALK.com following your completion of the ordering process.
a. Lawful, Non Fraudulent Use of Service and TK 6000/DUO/DEVICES
netTALK.com will accept no more than 3 orders for netTALK.com Service per household. You agree to use the Service and TK6000/DUO/DEVICES only for lawful purposes. You will not use the Service or TK6000/DUO/DEVICES for any unlawful, abusive, or fraudulent purpose, including, for example, using the Service in a way that (1) interferes with our ability to provide Service to you or other customers; or (2) avoids your obligation to pay for communication services. If netTALK.com has reason to believe that you or someone else is abusing the Service or using it fraudulently or unlawfully, we can immediately suspend, restrict, or cancel the Service without advance notice. The TK6000/DUO/DEVICES is intended for use only in the United States. If you remove the TK6000/DUO/DEVICES to a country other than the United States and attempt to 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. netTALK.com reserves the right to terminate your service immediately and without advance notice if you violate the above restrictions, leaving you responsible for all outstanding charges, all of which immediately become due and payable.
b. Theft of netTALK.com Equipment or Service
You agree to notify netTALK.com immediately, in writing or by calling the netTALK.com customer support line, if the TK6000/DUO/DEVICES 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 TK6000/DUO/DEVICES theft or stolen 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.
c. Prohibited Uses of Service or Inconsistent with Normal Use
d. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and TK6000/DUO/DEVICES and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the TK6000/DUO/DEVICES, and all Services, information, documents and materials on netTALK.com's web site(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 netTALK.com are and shall remain the exclusive property of netTALK.com and nothing in this Agreement shall grant you the right to right or license to use such Marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the TK6000/DUO/DEVICES, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the TK6000/DUO/DEVICES is exclusively for use in connection with the Service. If you decide to use the Service through an interface device not provided by netTALK.com, which netTALK.com 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 netTALK.com against any and all liability arising out of your use of such interface device with the Service.
e. Tampering with the TK6000/DUO/DEVICES
You agree not to change the electronic serial number or equipment identifier of the TK6000/DUO/DEVICES, or to perform a factory reset of the TK6000/DUO/DEVICES, without express permission from netTALK.com in each instance. netTALK.com reserves the right to terminate your Service should you tamper with the TK6000/DUO/DEVICES.
You may cancel the Service in accordance to our RETURNS POLICY. If for any reason you cancel netTALK.com Service or if netTALK.com cancels the Service pursuant to the terms of this Agreement, netTALK.com will provide instructions on how to return the TK6000/DUO/DEVICES (netTALK.com Equipment). If you receive the netTALK.com Equipment associated with your netTALK.com Service free of charge and you do not subscribe to netTALK.com Service within one months of your receipt of the TK6000/DUO/DEVICES or you cancel your netTALK.com Service at any time, netTALK.com reserves the right to request that You return the netTALK.com Equipment to netTALK.com at netTALK.com's expense. In such case, if you do not return the netTALK.com Equipment within 16 days of the earlier of (i) the date that netTALK.com requests the return of the netTALK.com Equipment or (ii) the date of your Service cancellation, you will be charged a fee.back to top
a. netTALK.com will render to you monthly on-line call detail records for netTALK.comService, with the following charges:
1. A onetime flat fee for unlimited local/long distance calling, call features, and advanced service. Depending on the specific calling plan to which you subscribe, other types of calls, such as in-state, state-to-state, or outbound international calling, may either be included in the monthly service flat fee on an unlimited basis, or may carry additional per-minute rates. All such rate information will be described in the marketing materials and/or international rate table associated with your offer and/or subscription.
2. Any additional calls which are not included in the onetime fee, will be charged on a per minute usage basis. You can view the rates for international calls placed over netTALK.com Service at http://www.netTALK.ca/.
3. Depending on your calling plan and method of installation, you may also be charged for activation, early termination, plan change, separate features, modifying features on your account, inside wire and installation, disconnect and/or other fees, as further described in the marketing materials pertinent to your offer. If an early termination fee applies to your offer, it will not apply if you cancel your service less than 30 days or more than one year after the date we commence billing for your service. You may incur charges or experience a change in the terms of your plan offer if you change your phone number after your netTALK.com Service has been activated. Where you obtained your TK 6000/DUO/DEVICES directly from netTALK.com, netTALK.com also reserves the right to charge for shipping and handling charges associated with the TK 6000/DUO/DEVICES.
If, in addition, you also receive traditional non-Voice over IP netTALK.com local, local toll and/or long distance services, the charges for these services will not appear on the same online bill. You will continue to be separately responsible for those charges.
All fees and charges will be billed in advance except for usage-based charges and any other charges which netTALK.com decides to not advance bill, all of which will be billed monthly, in arrears. netTALK.com reserves the right to increase the frequency of your billing if at any time the amount you owe netTALK.com for the Service exceeds $75.
b. Payment Method for Online Bills
You authorize netTALK.com to charge any amounts payable by you in connection with your use of the Service automatically by credit card. Your right to use the Service is subject to any limits established by your credit card issuer. Your charges and credits issued in accordance with Section 7(a) above will appear on an online billing statement that you may access from the netTALK.com web site at www.netTALK.ca. You give netTALK.com permission to obtain authorization for use of your credit card from your credit card issuer.
c. Commencement of Billing
You understand that you are responsible for self-installing the TK 6000/DUO/DEVICES once you receive it. Where you purchase the TK 6000/DUO/DEVICES directly from netTALK.com, once your order is processed and the Service is provisioned, we will ship you the TK 6000/DUO/DEVICES by mail, and will begin billing for the Services promptly after the TK 6000/DUO/DEVICES shipment date (we refer to this date as the "Service Activation Date"). You are encouraged to complete installation of the TK 6000/DUO/DEVICES promptly because you will be responsible for full payment for the charges on your netTALK.com bill even if you have not yet installed the TK 6000/DUO/DEVICES and used the Service at the time the bill is rendered.
d. Price Changes
We may change the prices and charges for the Services and/or international calling from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Services and/or international calling are effective no sooner than fifteen days after we post them on our web site at http://www.netTALK.ca.. Increases to charges that recover our costs associated with government programs are effective no sooner than 3 days after we post the increases on our web site.
e. Charges and Billing
Charges accrue through a full billing period. To determine the charge for each international call, we round up to the next full minute for any fraction of minutes used. We will determine the format of the bill and the billing period, and we may change both the bill format and the billing period from time to time.
f. Service Suspension, Termination and Restoration
We may suspend or terminate your Account, and may terminate this Agreement, if you fail to renew your service prior to the expiration date, or if you fail to meet any or all of your payment obligations. Failure to renew Services or any suspension or termination shall result in the loss of Customer's access to Services and benefits, including but not limited to: (1) Customer shall be required to add credit in order to make calls to the U.S. and Canada; (2) Customer will lose access to the telephone number associated with its Account; (3) Customer will not be able to receive calls unless Customer purchased a phone number. In addition, if the Customer fails to renew Services or if the Service is suspended or terminated due to non-payment, Customer will be required to pay the applicable re-activation fee. The Company may, in our sole discretion, choose to restore or re-establish our provision of Services, which have been suspended or disconnected for failure to renew or nonpayment of charges, prior to payment of all charges due. Such restoration or re-establishment shall not be construed as a waiver of our right to receive full payment for all charges due or any rights to suspend or disconnect Service for failure to renew Services or nonpayment of any such charges due and unpaid or for the violation of the provisions of these Terms of Service; nor shall the failure to suspend or disconnect Service for failure to renew or nonpayment of any past due Account or Accounts operate as a waiver or estoppel to suspend or disconnect service for nonpayment of such Account or of any other past due Account. Should Service be suspended for failure to renew Services or nonpayment of charges, it will be restored when appropriate payments are made and at our discretion.
g. Late Payment Charge
We may add interest charges to any past-due amounts at the lower of 1.5% per month or the maximum rate allowed by state law, prorated for each day payment is past due. Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of our rights to collect the full amount of your charges for the Service. Notice of any disputes must be in writing and received by us within 30 days after you received your bill or you will waive any objection. You agree to reimburse us for reasonable attorneys' fees and any other costs associated with collecting delinquent or dishonored payments. If charges cannot be processed through your credit card, we will charge you an additional $15.00. If the state law where you receive the Service requires a different fee, we will charge you that amount.
h. Taxes and Other Charges
netTALK.com will charge you for and you must pay any applicable taxes, fees, surcharges or other charges associated with nationwide and international calls using the Service, unless you can show with documentation satisfactory to us that you are exempt. Taxes will be in the amounts that federal, state and local authorities require us to bill you.
i. No Credit Allowances for Interruption of netTALK.com Service
You acknowledge and agree that the Services are provided "as is." Credit allowances for interruption of netTALK.com Service, including international calling services, will not be provided.
4. Telecommunications Recovery Fee - netTALK uses this fee to recover certain costs associated with taxes, fees and surcharges imposed by state, county, parish, borough, district and municipal governments, such as state universal service funds, local 911 services, sales and utility taxes and other local taxes, fees and surcharges, based on the registered location of your netTALK device.
Regulatory Compliance Fee - netTALK uses this fee to recover certain costs associated with compliance with regulatory, legal and tax requirements including: (1) fees netTALK is required to pay to support the TRS fund, which supports facilities and services used to provide telecommunications services for individuals with hearing or speech disabilities; (2) annual regulatory fees assessed on netTALK by the Federal Communications Commission; (3) costs netTALK incurs administering, billing, collecting and making required tax and regulatory filings and complying with other regulations; (4) regulatory surcharges netTALK pays to the providers of telecommunications that netTALK uses to provide its services.
Federal Program Fee - netTALK uses this fee to recover certain costs to administer contributions netTALK is required to make to the federal Universal Service Fund, which provides support to promote access to telecommunications services at reasonable rates for those living in rural and high-cost areas, income-eligible consumers, rural health care facilities, and schools and libraries.
911 Service Fee - netTALK uses this fee to recover its costs of providing E911 service for netTALK customers as required by Federal Communications Commission regulations.
netTALK.com does not make available home wiring solutions.back to top
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD netTALK.com, ITS AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, HARMLESS FROM CLAIMS OR DAMAGES RELATING TO OR ARISING OUT OF THIS SERVICE, THE TELEPHONE ADAPTER, OR ITS INSTALLATION, OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE LACK OF 911 DIALING OR DIALING ASSOCIATED WITH A SECURITY SYSTEM. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
YOU AGREE THAT netTALK.com SHOULD NOT BE RESPONSIBLE FOR ANY THIRD PARTY CLAIMS AGAINST US THAT ARISE FROM YOUR USE OF THE SERVICES. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS' FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER THE AGREEMENT ENDS.
BY ENROLLING IN, ACTIVATING, USING OR PAYING FOR THE SERVICES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE LIMITATIONS OF netTALK.com SERVICE DESCRIBED HEREIN.
netTALK.com'S LIABILITY TO YOU ON ACCOUNT OF ANY ACT OR OMISSION OF netTALK.com RELATED TO THIS AGREEMENT, INCLUDING ACTS OR OMISSIONS RELATED TO 911 DIALING, SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR ATANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY netTALK.com'S INTENTIONAL MISCONDUCT OR RECKLESSNESS. EXCEPT FOR DAMAGES THAT ARE THE DIRECT RESULT OF netTALK.com'S WILLFUL OR INTENTIONAL MISCONDUCT, YOU WILL NOT BE ENTITLED TO ANY OTHER DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS OR REVENUE OR OTHERWISE REGARDLESS OF THE FORM OF ACTION. netTALK.com AND OUR EMPLOYEES, AGENTS, CONTRACTORS AND REPRESENTATIVES WILL HAVE NO LIABILITY WHATSOEVER FOR LOSS OF PROFITS OR REVENUE OR ANY DAMAGES OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF, ANY OF YOUR SOFTWARE, FILES, DATA OR PERIPHERALS.
netTALK.com SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES RESULTING FROM INSTALLATION WORK PERFORMED BY YOU OR BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY WIRING, SOFTWARE DOWNLOAD OR OTHER WORK ASSOCIATED WITH ENABLING THE SERVICE OR CREATING EXTENSIONS THERETO.
EXCEPT AS THIS AGREEMENT EXPRESSLY STATES, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE MATERIALS ACCOMPANYING THE EQUIPMENT, WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICES OR EQUIPMENT OR ANY INSTALLATION SERVICE AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, netTALK.com EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.back to top
IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY. THIS SECTION DOES NOT APPLY TO RESIDENTS OF CALIFORNIA.
a. Binding Arbitration
The arbitration process established by this section is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16. You have the right to take any dispute that qualifies to small claims court rather than arbitration. All other disputes arising out of or related to this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved by final and binding arbitration. This includes any dispute based on any product, service or advertising having a connection with this Agreement and any dispute not finally resolved by a small claims court. The arbitration will be conducted by one arbitrator using the procedures described by this Section. If any portion of this Dispute Resolution Section is determined to be unenforceable, then the remainder shall be given full force and effect.
The arbitration of any dispute shall be conducted in accordance with the American Arbitration Association's ("AAA") Supplementary Procedures for Consumer-Related Disputes, as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. You have the right to be represented by counsel in arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.
NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE BARRED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS' FEES UNLESS SUCH DAMAGES OR FEES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND NetTALK.com BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
b. Arbitration Information and Filing Procedures
Before you take a dispute to arbitration or to small claims court, you must first contact our customer account representatives at the customer service number on your netTALK.com bill for the Services, or write to us at NetTALK.com, 1100 NW 163RD DRIVE SUITE B4 MIAMI FL 33169, and give us an opportunity to resolve the dispute. Similarly, before netTALK.com takes a dispute to arbitration, we must first attempt to resolve it by contacting you. If the dispute cannot be satisfactorily resolved within sixty days from the date you or netTALK.com is notified by the other of a dispute, then either party may then contact the AAA in writing at AAA Service Center, 134555 Noel Road, Suite 1750, Dallas, Texas 75240-6620 and request arbitration of the dispute. Information about the arbitration process and the AAA's Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org, or by contacting us at netTALK.com, 1100 NW 163RD DRIVE SUITE B4 MIAMI FL 33169. The arbitration will be based only on the written submissions of the parties and the documents submitted to the AAA relating to the dispute, unless either party requests that the arbitration be conducted using the AAA's telephonic, online, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in the state of your primary residence. Arbitrations under this Agreement shall be confidential as permitted by federal law. By notifying netTALK.com within twenty days after commencing an arbitration proceeding, you may elect to relieve both parties to the arbitration of confidentiality obligations.
c. Fees and Expenses of Arbitration
You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. The AAA's filing fee and administrative expenses for a document arbitration will be allocated according to the AAA's Rules, except as stated herein, for claims of less than $10,000, you will only be obligated to pay a filing fee of $20 and we will pay all of the AAA's other costs and fees. For claims between $10,000 and $75,000, you will pay a fee to the AAA of no more than $375, and we will pay all of the AAA's other costs and fees. If you elect an arbitration process other than a document ("desk") or telephone arbitration, you must pay your allocated share of any higher administrative fees and costs for the process you select. If you request such an alternative process, or for claims of $10,000 or greater, netTALK.com will also consider, upon receiving your request and on a case-by-case basis, paying some or all of the AAA's fees and expenses that you would otherwise be allocated under the AAA's rules. You also may ask the AAA about the availability of a pro bono arbitrator and/or a waiver or deferment of fees and expenses from the AAA; more information about the AAA's rules and policies is available at the AAA's web site, which is www.adr.org. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production and presentation of evidence. If you prevail before the arbitrator, however, you may seek to recover the AAA's fees and the expenses of the arbitrator from us. If we prevail before the arbitrator, and if we show that you acted in bad faith in bringing your claim, then we may seek to recover the AAA's fees and expenses of the arbitrator from you.
a. No Third Party Rights
This Agreement does not provide any third party with a remedy, claim, or right of reimbursement.
b. Acts Beyond Our Control
Neither you nor we will be responsible to the other for any delay, failure in performance, loss or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control, except that you must pay for any Services used.
We can assign all or part of our rights or duties under this Agreement without notifying you. If we do that, we have no further obligations to you. You may not assign this Agreement or the Services without our prior written consent.
Notices from you to netTALK.com must be provided as specified in this Agreement. Notice from you to netTALK.com made by calling netTALK.com at 866-967-1063 is effective as of the date that our records show that we received your call. netTALK.com's notice to you under this Agreement will be provided by one or more of the following: posting on our web site, recorded announcement, bill message, bill insert, newspaper ad, postcard, letter, call to your billed telephone number, or e-mail to an address provided by you.
If any part of this Agreement is found invalid, the rest of the Agreement will remain valid and enforceable.
f. Governing Law
This Agreement is governed by the Federal Communications Act to the extent applicable, and otherwise This Agreement will be governed by the law of the State of Florida, without regard to its choice of law rules, except that the arbitration provisions in Section 11 are also governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services.
g. Entire Agreement
This Agreement constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements or proposals concerning the Service, including representations, whether written or oral. This Agreement can only be amended as provided in Section 7(d) and Section 13(h) herein. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor netTALK.com is relying on any representations or statements by the other party or any other person that are not included in this Agreement.
h. Changes to this Agreement
netTALK.com may change this Agreement from time to time. If we make any changes to the prices or charges, we will comply with our notice commitments described in this Agreement. IF YOU CONTINUE TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICES AFTER ANY CHANGES IN THE PRICES, CHARGES, TERMS OR CONDITIONS, YOU AGREE TO THE CHANGES.
Where required by law in specific states, and subject to the requirements thereof, customers who cancel their service within the first three, five, seven, fifteen or other number of days specified by state law, as applicable, following acceptance of this Agreement, will be refunded all charges incurred with respect to their account.
Addendum to General terms and conditions for promotional lifetime service offering
"Equipment" refers to a base unit such as the TK6000/DUO/DEVICES personal netTALK telecommunications device as well as other equipment offered through our website. Descriptions of our Equipment and the prices for the Equipment are published on our website, and those descriptions and prices may be modified without notice and are incorporated by reference into this Agreement.
"High Speed Internet" refers to an internet connection capable of data speeds of at least 384 kilobits downstream and 256 kilobits upstream.
"Basic Services" include reasonable residential calls, as described in the general terms and conditions, to the United States/Canada for the life of the Equipment subject to the terms and limitations of this Agreement.
1 Purchase and Licensing of Equipment
3 Additional terms and conditions
Any item or condition not specifically addressed or covered under this addendum will be subject to the general terms and conditions that NetTALK provides for all services and product.
As amended: November 8, 2012
1. Grant of Rights to Use Services
1.1 Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services, netTALK .Com Inc. hereby grants You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license during the Term of this Agreement in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by netTALK .Com Inc. that augment or enhance the current Services shall also constitute "Services" and shall be subject to these terms and conditions. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by netTALK .Com Inc.
1.2 You may send SMS Text messages, or may receive Text Messages via the Service, at any time that the Services are available provided that those requests do not violate the terms of the Acceptable Use Policy or other terms of this Agreement.
1.3 Provided that You comply with the terms of this Agreement and our policies and procedures including the Acceptable Use Policy, You may use the Services to text mobile phone numbers owned or lawfully obtained by You. You are solely responsible for Your text message content, including any data, text, images or content contained therein.
1.4 You are personally responsible for all traffic originating from Your account credentials to the Services. As such, You should protect Your account information. Actions taken using Your credentials shall be deemed to be actions taken by You, with all consequences including service termination, civil and criminal penalties.
1.5 Subject to our commercially reasonable efforts and so long as Your account remains in good standing, data generated by Your use of the Service such as text log entries will remain available via our Service for at least three months from the date such data was generated. Notwithstanding the above and without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur with respect to loss of data associated with Your account and data therein.
2. Term, Termination and Suspension
2.1 The term ("Term") of this Agreement will commence once You accept this Agreement as provided above. The Agreement will remain in effect until terminated by You or us in accordance with this Section 2.
2.2 You may terminate this Agreement for any reason or no reason at all, at Your convenience, by closing Your account for any Service for which we provide an account closing mechanism.
2.3 We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), for any reason or for no reason, at our discretion at any time by providing You thirty (30) days' advance notice in accordance with the notice provisions set forth in Section 10 below.
2.4 We may suspend Your right and license to use the Service or terminate this Agreement in its entirety (and, accordingly, Your right to use the Service), for cause effective as set forth below:
2.4.1 Immediately upon our notice to You in accordance with the notice provisions set forth in Section 10 below if (i) You violate any provision of the Acceptable Use Policy or we have reason to believe that You have violated the Acceptable Use Policy, (ii) there is an unusual spike or increase in Your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
2.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is invalid or charges are refused for such payment mechanism.
2.4.3 Five (5) days following our provision of notice to You in accordance with the notice provisions set forth in Section 10 below if You breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.
2.5 Effect of Suspension or Termination.
2.5.1 Upon our suspension of Your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the Services shall be terminated during the period of the suspension.
2.5.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.
2.6 In the event this Agreement expires or is cancelled or terminated for any reason, Sections 6, 7, 8, 9, 10 and 11 and any applicable definitions will survive any such expiration, cancellation or termination.
2.7 Following the suspension or termination of Your right to use the Services by us or by You for any reason other than a termination for cause, You shall be entitled to take advantage of any post-termination assistance we may generally elect to make available with respect to the Services such as data retrieval arrangements. We may also endeavor to provide You with unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to You, shall be conditioned upon Your acceptance of and compliance with any fees and terms we specify for such assistance.
3. Downtime and Service Suspensions; Security
3.1 In addition to our rights to terminate or suspend Services to You as described in Section 2 above, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to You, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide You notice of any Service Suspension in accordance with the notice provisions set forth in Section 10 below and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
3.2 We strive to keep information You provide to us secure, but cannot guarantee that we will be successful at doing so. Accordingly, without limitation to Section 7 below, You acknowledge that You bear sole responsibility for adequate security, protection and backup of Your content associated with Your account. We strongly encourage You, where available and appropriate, to use encryption technology to protect Your content from unauthorized access and to routinely archive Your content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your content.
4.1 If You have subscribed to our Services, then You agree to pay applicable fees (including any minimum subscription fees) as set forth here. There are no credits given for unused texts and unused texts do not rollover to succeeding months. No partial credits will be given if you cancel your account after the month/year has been paid for. We may increase or add new fees for any existing Service or Service feature by giving You 30 days' advance notice. All fees payable by You are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from You.
4.2 We may specify the manner in which You will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by You under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
4.3 Should You have any dispute as to fees associated with Your account, please contact us at sales@netTALK.com within 90 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to Your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
5. Intellectual Property
5.1 Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the netTALK Properties; (iii) the netTALK Marks; and (iv) any other technology and software that we provide or use to provide the Services and the netTALK Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the netTALK Properties, the netTALK Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
5.2 In the event You elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the netTALK Properties or the netTALK Marks (collectively, "Feedback"), we shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information You post or provide to netTALK via comments, forums, emails and the like (collectively, "Communications") shall be considered the property of netTALK. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
5.3 During and after the Term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
6. Representations and Warranties; Disclaimers; Limitations of Liability
6.1 You represent and warrant that You will not use the Services in a manner that violates the Acceptable Use Policy. To this effect, we ask that You take reasonable precautions to promote best practices. Although netTALK and the underlying service providers do not assume the duty or obligation to monitor any materials created, posted or uploaded by You or any third parties, netTALK and the underlying service providers reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies (including our Acceptable Use Policy) relating to our Services.
6.3 You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) You are duly authorized to do business or use the service in the jurisdiction where You operate; and (iii) You are an authorized representative of Your entity duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account.
6.4 netTALK PROPERTIES, THE netTALK MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE netTALK PROPERTIES, THE netTALK MARKS, THE SERVICES OR THE PROMOTIONAL CREDITS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICES OR WEBSITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE OR WEBSITE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.5 In addition to the foregoing, we specifically disclaim all liability, and You shall be solely responsible for the operation and use of the Service and You agree that You shall, without limitation, be solely responsible for:
6.5.1 ensuring that any text messages sent through your use of the Service do not violate our Acceptable Use Policy, are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
6.5.2 any of Your use's or claims relating to Your use of the Service.
6.5.3 SMS TEXT MESSAGES ARE SENT AND RECEIVED ON A BEST EFFORTS BASES, AND MESSAGES CAN BE DELAYED FOR UP FOR 48 HOURS FOR REASONS THAT MAY NOT BE IN OUR CONTROL, AND FOR WHICH WE ACCEPT NO LIABILITY AS FURTHER DESCRIBED IN 6.5.4 OF THIS DOCUMENT.
6.5.4 NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE NETTALK PROPERTIES, THE NETTALK MARKS OR THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
7.1 You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) Your use of the Services, in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, the Acceptable Use Policy, and/or applicable law, (ii) Your violation of any term or condition of this Agreement, the Acceptable Use Policy or any applicable additional policies.
8.1 By using the Services, You agree that the laws of the State of Florida, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between You and us.
9.1 Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via the email address provided to us in Your registration for the Services or in any updated email address You provide to us in accordance with standard account information update procedures we may provide from time to time. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email.
9.2 For notices made by You to us under this Agreement and for questions regarding this Agreement or the Services, You may contact netTALK as follows: by US Postal Mail at netTALK, 1080 NW 163 DR, Miami Florida 33169, or by contacting us at sales@netTALK.com
10. Miscellaneous Provisions
10.1 Responsibility. If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
10.2 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
10.3 Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
10.4 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
As amended November 8, 2012
This Acceptable Use Policy describes actions that netTALK prohibits when You use its SMS Texting Services (the "Services"). You acknowledge and agree that this policy may be revised from time to time by netTALK at its sole discretion, with any such modifications effective when the revised Acceptable Use Policy is posted here. It is Your responsibility to review this Acceptable Use Policy frequently and remain informed about any changes to it, so we encourage You to visit this page often. This Acceptable Use Policy is governed by our Terms of Service, and all undefined terms herein shall be as defined in the Terms of Service.
netTALK may in its sole discretion determine whether You are in violation of this Acceptable Use Policy. The Services may be used only for lawful purposes and may not be used for any illegal activities. As specified below, netTALK maintains the position that using the Services in an illegal, abusive or any other manner that interferes with or diminishes others' use and enjoyment of the Services is prohibited.
The following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behavior while using the Services. This list is provided by way of example and shall not be considered exhaustive.
Violation of this Acceptable Use Policy may result in the immediate suspension or termination of Your account, civil and/or criminal liability, and netTALK may, in addition to any remedy that it may have at law or in equity, terminate permission for You to use the Services. In such event, You are still liable for any and all outstanding charges accumulated through Your use of the Services, including uses in violation of this Acceptable Use Policy or the laws of any jurisdiction. In addition, netTALK may investigate incidents that are contrary to this Acceptable Use Policy and provide requested information to third parties who have provided notice to netTALK stating that they have been harmed by Your failure to abide by this Acceptable Use Policy. netTALK's failure to enforce this policy in each and every instance in which it might have application does not amount to a waiver of netTALK's rights hereunder.