|
INS Communications TERMS OF SERVICE
These Terms of Service constitute the agreement ("Agreement") between INS Communications ("we," "us" or "Company") and the user ("you," "user" or "Customer") of Company's enhanced Residential communications services or enhanced Small Business communications services and any related products or services ("Service"). This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. If you have purchased Equipment from any Company retail dealer, you will be deemed a "Retail Customer" and will be governed by certain Retail Customer terms and conditions as set forth herein.
1. SERVICE
1.1 Term
Service is offered on a monthly basis for a term which begins on the date that Company activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Company written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
1.2.1 Residential Use of Service and Device
If you have subscribed to Company's Residential services, the Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, 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 not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Company in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay Company's higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. Company reserves the right to immediately terminate or modify the Service, if Company determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
1.2.2 Small Business Use of Service and Device - Prohibition on Resale
If you have subscribed to Company's Small Business services, the Service and Device are provided to you as a small business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Company in advance. You agree that the Company Small Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. Company reserves the right to immediately terminate or modify the Service, if Company determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
1.3 Lawful Use of Service and Device
1.3.1 Prohibited Uses
You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Company's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Company reserves the right to terminate your service immediately and without advance notice if Company, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at Company¿s discretion be immediately charged to your credit card. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Company against any and all liability for any such use. If Company, in its sole discretion believes that you have violated the above restrictions, Company may forward the objectionable material, as well as your communications with Company and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1.3.2 Use of Service and Device by Customers Outside the United States
While we encourage use of the Service within the United States to other countries, Company does not presently offer or support the Service to customers located in other countries except Canada. If you remove the Device to a country other than the United States or Canada and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Company against any and all liability for any such use. Should the removal from the United States or Canada of the Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless Company against any and all liability for such violation. Company reserves the right to terminate your Service immediately and without advance notice if it determines that you are using it outside the United States or Canada.
1.4 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by Company
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which is not provided by Company) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider (¿ISP¿) and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or Company terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 911 calling feature. Should Company suspend or terminate your Service, the Service will not function until such time as Company restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
1.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on Company's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Company are and shall remain the exclusive property of Company and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that Company will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by Company, which Company 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 Company against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.6 Tampering with the Device or Service
You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Company in each instance which Company may deny in its sole discretion. Company reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
1.7 Theft of Service
You agree to notify Company immediately, in writing or by calling the Company customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as Company receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
1.8 Return of Device
The Device may be returned to Company within fourteen (14) days of the termination of Service to receive a credit for the $39.99 disconnect fee (refer to section 4.6 of this document regarding termination fees), provided: (i) you have retained, and return along with the Device, proof of purchase and original packaging; (ii) contents are undamaged and in original condition, reasonable wear and tear excluded; (iii) all parts, accessories, documentation and packaging materials are returned; and (iv) equipment is returned with a valid return authorization number obtained from Company¿s customer care department. You are responsible for the cost and risk of return shipping of equipment. If you receive cartons and/or Devices that are visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact Company's customer care department immediately. To obtain a return authorization number, you must contact billing@inscommunications.com.
1.9 Number Transfer on Service Termination
Upon termination of the Service, Company may, at its sole discretion, release a telephone number that was ported in from a previous service provider to Company by you and used in connection with your Service provisioned by Company to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has been terminated; (ii) your Company account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account.
1.10 Service Distinctions
You acknowledge and understand that the Service is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the enhanced Service offering provided by Company. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
1.11 Ownership and Risk of Loss
You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to Section 1.8 and has been received by Company.
1.12 No 0+ Calling; May Not Support x11 Calling
Company¿s Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling). Company¿s Service may not support 311, 511 and/or other x11 (other than 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2. EMERGENCY SERVICES- 911 DIALING
2.1 Non-Availability of Traditional 911 or E911 Dialing Service
You acknowledge and understand that the Service does NOT support traditional 911 or E911 access to emergency services. Company does offer a limited 911-type service available only on Company Devices as described herein, but you acknowledge and understand that 911-type dialing is NOT automatic, that you must separately take affirmative steps, as described in this Agreement and on Company¿s website, to activate such 911-type dialing capabilities and that such 911-type dialing is different in a number of important ways (some, but not necessarily all, of which are described in this Agreement) from traditional 911 service. Company 911 dialing cannot be used in conjunction with a Company Soft Phone application and is only available on Company-certified Devices or Equipment. You agree 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 non-availability of traditional 911 or E911 dialing from your Company Service and Device(s). If you activate Company 911-type dialing service, you agree to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service as to the important differences and limitations of Company 911 dialing service as compared with traditional 911 or E911 dialing that are set forth in this Agreement.
2.2 Description of 911-Type Dialing Capabilities - Activation Required
Company does offer a 911-type dialing service in the U.S. (but may not offer such service in Canada) that is different in a number of important ways from traditional 911 service. You acknowledge and understand that 911-type dialing is NOT automatic. You must successfully activate the 911 dialing feature by following the instructions from the "Dial 911" link on your dashboard. You acknowledge and understand that you cannot dial 911 from this line unless and until you have received a confirming email. Once you have received a confirming email that 911 dialing has been successfully activated, you may dial 911 as needed. When you dial 911, your call is routed from the Company network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. You acknowledge and understand that when you dial 911 from your Company equipment it is intended that you will be routed to the general telephone number for the PSAP or local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. Company relies on third parties for the forwarding of information underlying such routing, and accordingly Company and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. As described herein, this 911-type dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing. Neither Company nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Company. You agree to indemnify and hold harmless Company and its third party provider from any claim or action arising out of misroutes of 911 calls, including but not limited to your failure to follow correct activation procedures for 911 calling or your provision to Company of incorrect information in connection therewith.
2.3 Service Outage
2.3.1 Power Failure or Disruption
You acknowledge and understand that 911 dialing does not function in the event of a power failure or disruption. Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service or 911 dialing.
2.3.2 Broadband Service / ISP Outage or Termination / Suspension or Termination by Company
You acknowledge and understand that service outages or suspension or termination of service by your broadband provider and/or ISP or by Company will prevent ALL Service including 911 dialing.
2.3.3 Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension of your account as a result of billing issues will prevent ALL Service, including 911dialing.
2.3.4 Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
2.3.5 Limitation of Liability and Indemnification
You acknowledge and understand that Company's liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this document. You agree to defend, indemnify, and hold harmless Company, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service relating to the absence, failure or outage of the Service, including 911 dialing and/or inability of Customer or any third person or party or user of Customer's Service to be able to dial 911 or to access emergency service personnel.
2.4 911 Dialing Requires Activation
You acknowledge and understand that 911 dialing does not function unless you have successfully activated the 911dialing feature by following the instructions from the "Dial 911" link on your dashboard, and until such later date that such activation has been confirmed to you through a confirming email. You acknowledge and understand that you cannot dial 911 from this line unless and until you have received a confirming email.
2.5 Failure to Designate the Correct Physical Address When Activating 911 Dialing
Failure to provide the current and correct physical address and location of your Company equipment by following the instructions from the ¿Dial 911¿ link on your dashboard will result in any 911 communication you may make being routed to the incorrect local emergency service provider. This must be the actual physical street address where you are located, not a post office box, mail drop or similar address.
2.6 Requires Re-Activation if You Change Your Number or Add or Port New Numbers
You acknowledge and understand that 911 dialing does not function if you change your phone number or (for such newly added or ported numbers) if you add or port new numbers to your account, unless and until you have successfully activated the 911 dialing feature for your changed, newly added or newly ported number by following the instructions from the "Dial 911" link on your dashboard, and until such later date that such activation has been confirmed to you through a confirming email. Although you may have activated 911 dialing with your former Company phone number, you must separately activate 911 dialing for any changed or newly added or ported number.
2.7 Requires Re-Activation if You Move or Change Location
You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your Company Device to a different street address, unless and until you have successfully activated the 911 dialing feature following the instructions from the "Dial 911" link on your dashboard, and until such later date that such activation has been confirmed to you through a confirming email. 911 dialing must be re-activated although you may have activated 911 dialing using your former address, and you must separately activate 911 dialing for any new physical address. Failure to provide the current and correct physical address and location of your Company equipment will result in any 911 dialing you may make being routed to the incorrect local emergency service provider
2.8 Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911
Due to the technical constraints on the manner in which it is possible to provide the 911 dialing feature for Company Service at this time, you acknowledge and understand that there is a greater possibility of network congestion and/or reduced speed in the routing of a 911 communication made utilizing your Company equipment as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that 911 dialing from your Company equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider's facilities when such calls are routed using traditional 911 dialing. You acknowledge and understand that there may be a greater possibility that the general telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. You acknowledge and accept that Company relies on third parties for the forwarding of information underlying such routing, and accordingly Company and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. Company or its officers or employees, may not be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Company.
2.9 Automated Number Identification
At this time in the technical development of Company 911 dialing, it may or may not be possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. Company's system is configured in most instances to send the automated number identification information; however, one or more telephone companies, not Company, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
2.10 Automated Location Identification
At this time in the technical development of Company 911 Dialing, it is not possible to transmit identification of the address that you have listed to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you dial 911. You acknowledge and understand that you will need to state the nature of your emergency promptly and clearly, including your location, as PSAP and emergency personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to find your location if the call is unable to be completed, is dropped or disconnected, if you are unable to speak to tell them your location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
2.11 Alternative 911 Arrangements
You acknowledge that Company does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional E911 services.
3. CHANGES TO THIS AGREEMENT
Company may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the "Service Announcements" section of Company¿s website (currently located at http://www.utg-inc.net/cgi-bin/terms.cgi?inscommunications ). Such changes will become binding on Customer, on the date posted to the Company website and no further notice by Company is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device..
4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
4.1 Billing
You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by Company) when the Service is activated. Company reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Company at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Company decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. Company reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on Company¿s website.
4.2 Billing Disputes
You must notify Company in writing within 7 days after receiving your credit card statement if you dispute any Company charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
INS Communications
ATTN: Billing
PO BOX 1268
Salem, IL 62881
or
billing@inscommunications.com
4.3 Payment
Company accepts payments only by credit card as set forth in Section 4.1. Your initial use of the Service authorizes Company to charge the credit card account number on file with Company, including any changed information given Company if the card expires or is replaced, or if you substitute a different card, for Company charges as set forth in Section 4.1. This authorization will remain valid until 30 days after Company receives your written notice terminating Company's authority to charge your credit card, whereupon Company will charge you the disconnect fee and any other outstanding charges and terminate the Service. Company may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Company is declined or reversed, your credit card expires and you have not provided Company with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to Company for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by Company in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
4.4 Termination/Discontinuance of Service
Company reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If Company discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Company or of a third party provider to which Company is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.6, all of which immediately become due and payable.
4.5 Taxes
You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide Company with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date Company receives such certificate.
4.6 Charges for Directory Calls
Company will charge 99 cents for each call made to Company directory assistance.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
Company shall not be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
1.) act or omission of an underlying carrier, service provider, vendor or other third party;
2.) equipment, network or facility failure;
3.) equipment, network or facility upgrade or modification;
4.) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5.) equipment, network or facility shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or facility failure caused by the loss of power to Customer;
8) outage of Customer¿s ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond Company's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, , or degradation of voice quality.
Company's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Company¿s performance or nonperformance hereunder or (iii) any Company act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages
IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT COMPANY WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless Company, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device. This paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service
COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER¿S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER COMPANY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO COMPANY'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF COMPANY'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY COMPANY OR COMPANY'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer received the Device new from Company and the Device included a limited warranty at the time of receipt, Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If Customer's Device did not include a limited warranty from Company at the time of receipt, Customer agrees that it accepts its Device "as is" and that Customer is not entitled to replacement or refund in the event of any defect, except that for Retail Customers only, Company will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Retail Customer limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. Retail Customer¿s sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 1.8. Retail Customer must include with the returned Device a letter stating that the Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. This Retail Customer limited warranty shall also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein.. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS ¿ERROR FREE¿ OR WILL MEET CUSTOMER¿S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
5.6 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
5.7 Content
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. Company reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if Company determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with Company's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. Company's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold Company against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and Company arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (or, for Customers subscribing to service in Canada, a Canadian arbitration organization of Company¿s choosing). The arbitration shall take place in Marion County, Illinois (or, for Customers subscribing to service in Canada, Toronto, Ontario) and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and Company shall be governed by the laws of the State of Illinois (or, for Customers subscribing to service in Canada, applicable Canadian law) without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and Company agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Illinois (or, for Customers subscribing to service in Canada, courts sitting within the province of Ontario) and waive any objection as to venue or inconvenient forum. The failure of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.3 Entire Agreement
This Agreement and the rates for Services found on Company's website constitute the entire agreement between you and Company and govern your use of the Service, superseding any prior agreements between you and Company and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon Company unless and until posted in accordance with Section 3 hereof.
6.4 Severability
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
7. PRIVACY
Company Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Company is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy applicable to you at www.inscommunications.com for additional information.
Last Updated: April 27, 2004
|
