Terms of VOIP Services Page 1 of 15 These Terms of Service constitute the agreement ( Agreement ) between Trans Global Communications, Inc., 3505 North Roxboro Street, Durham, North Carolina 27704 ( Service Provider ) and the Customer of business Voice over Internet Protocol (VOIP) 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, switch, router or any other IP connection device ( Device or Equipment ), used in conjunction with the Service. BY ACCEPTANCE OF THE PROPOSAL(S) COVERING THE SERVICE, CUSTOMER REPRESENTS THAT THEY ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS. 1. EMERGENCY SERVICES 911 DIALING 1.1 General Operation and Requirements As with any traditional emergency call, when a user dials 911 to report a police, fire or medical emergency, every effort is made to rout the call to the correct Public Safety Answering Point (PSAP), along with location information, telephone number and name of the individual to which the phone is assigned. This allows the PSAP Dispatcher to expedite their response to the call and is particularly useful if the call is terminated prior to completion of the full conversation. The Service covered in this Agreement is different from the traditional telephone service in that the location (physical address) of each phone must be registered within the VOIP system. The Service is very flexible in that the devices can be easily moved to any location where an appropriate interface to the internet exists. Therefore, when a device is moved to a different physical address it must be re-registered for each new location so emergency services can properly respond. Service Provider may use third party services to process the emergency calls to the correct PSAP location. The route of the call will likely transit a variety of facilities of different public telecommunications and internet companies, and the capabilities of individual PSAPs may differ. See Sections 1.4 for more detailed description of Service Impairments and Outages and Section 1.7 for Disclaimers and Indemnification. 1.2 Registration Responsibilities The Customer has the sole responsible for registering the correct location information within the VOIP System for each device. Although Service Provider may assist Customer in registering the initial locations within the system, based on the Customer s information, the Customer is ultimately responsible for the timeliness and accuracy of the location information within each device. This includes the maintenance of proper location information if the device(s) is relocated to a different physical address. The Customer should follow the instructions from the 911 Registration Link on Service Provider s Service Provider s account, dashboard features page. Only one location can be programmed into a telephone at a time.
Terms of VOIP Services Page 2 of 15 1.3 Confirmation of Activation The 911 Dialing feature may not be activated for any phone line used with the Service, unless and until Customer receive an email confirming that the 911 Dialing feature has been activated for that phone line. If the email is not received within one business day, contact our support center at support@transglobalcomm.com. 1.4 Service Outages and Impairments (a) Service Outages. The 911 Dialing will not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, Customer may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing. (b) Service Outages Due to Internet Outage or Suspension or Termination of Internet Service or ISP Service. Service outages or suspensions or terminations of service by Customer internet provider or ISP will prevent all Service, including 911 Dialing, from functioning. Service outage due to Suspension or Termination of Customer account will prevent all Service, including 911 Dialing, from functioning. (c) Service Outages Due to ISP or Internet Provider Blocking of Ports or Other Acts. Customer ISP or internet provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. During the period that the ports are being blocked or Customer Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, Customer Service, including the 911 Dialing feature, may not function. Upon Customer request, Service Provider will attempt to resolve the issue. However, Customer acknowledge that Service Provider is not responsible for the blocking of ports by Customer ISP or internet provider or any other impediment to Customer usage of the Service, and any loss of service, including 911 Dialing that may result. In the event Customer lose service as a result of blocking of ports or any other impediment to Customer usage of the Service, Customer will continue to be responsible for payment of the Service charges unless and until Customer terminate the Service in accordance with this Agreement. (d) Network Congestion Excessive demand for service by users which exceeds the capacity of the network is a likely cause of Network congestion and service interruption. This may be a more likely cause for Service impairment or disruption of calls in or out of the location, during an emergency condition. Network congestion within the transmission facility serving the location or within
Terms of VOIP Services Page 3 of 15 the public network(s) can limit the availability of call paths in or out of the location, as well as along the route of the call. 1.7 Disclaimer of Liability and Indemnification. Service Provider does not have any control over whether, or the manner in which, 911 calls are routed, answered or addressed by interconnecting companies or the Public Service Answering Point (PSAP) Dispatchers. Service Provider disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. Service Provider relies on third parties to assist us in routing 911 Calls to the PSAP. Service Provider disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Service Provider, nor its officers or employees may be held liable for any claim, damage, or loss, and Customer hereby waive any and all such claims or causes of action, arising from or relating to our system s ability to process 911 calls unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. Customer shall defend, indemnify, and hold harmless Service Provider, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney s fees) by, or on behalf of, Customer or any third party relating to the absence, failure or outage of the Service, including 911 Calls, and/or the inability of any user of the Service to be able to make a 911 call or access emergency service personnel in any other manner. 1.8 Alternate methods for 911 calling. Service Provider strongly recommends that alternative means of emergency reporting be available in the event that Service is not operational. Cell phones may be a viable alternative if they are equipped and operating with location capabilities. Customer must confirm the operation of their cell phone and service prior to depending on them as a viable alternative. A best practice would be to maintain a traditional, landline telephone as a primary means of reporting an emergency. 2. SERVICE 2.1 Term. Service is offered on an annual or multi-year basis as determined in Customer Service Activation Document. The term begins on the date of Customer Service Activation and ends on the anniversary date of the Agreement. The Agreement will automatically renew for the original term period unless Service provider is given written notice of non-renewal at least ten (30) days before the end of the term. Expiration of the term or termination of Service will not excuse Customer from paying all accrued and unpaid charges due under this Agreement. 2.2 Use of Service and Device(s). a. Devices may be sent directly to Customer and are to be stored in a dry and secure location until installed. If Customer receives cartons or Devices that are visibly damaged, Customer must note the damage on the carrier s freight bill or receipt and keep
Terms of VOIP Services Page 4 of 15 a copy. In such event, Customer must keep the original carton, all packing materials and parts intact in the same condition in which they received from the carrier and contact our Customer Support Department at support@transglobalcomm.com. b. Customer shall not resell, lease, rent, loan, barter or transfer the Service or the Device(s) to another party without our prior written consent. c. Customer is prohibited from using the Service or the Device(s) for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. d. Service Provider reserves the right to immediately terminate or modify Customer Service if Service Provider determine, in our sole and absolute discretion, that Customer have at any time used the Service or the Device for any of the aforementioned or similar activities. 2.3 Service-only Terms and Responsibilities. a. Service-only involves the Service Provider providing only the network access and connectivity to the identified router. The Customer owns the devices but is responsible for coordinating with Service Provider to ensure that the quantity of devices are in accordance with this Agreement, and that they are compatible with the Service. Service Provider must program and set up the devices and can assist in their installation. All charges for the phones, programming and set up will be billed on the next invoice. b. Customer shall not resell, lease, rent, loan, barter or transfer the Service to another party without our prior written consent. c. Customer is prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. Service Provider reserve the right to immediately terminate or modify Customer Service if Service Provider determine, in our sole and absolute discretion, that Customer have at any time used the Service for any of the aforementioned or similar activities. d. Unless otherwise agreed to in writing, Service Provider is not responsible for the ongoing service performance, location registration or compatibilities of customer owned devices with the ongoing operation of the VOIP System. The time, materials and other expenses incurred by Service Provider in support to Customer in the installation, maintenance or repair of Customer equipment will be billable, in addition to the regular service fees. 2.4 Prohibited Uses. (a) Illegal Use Customer shall use the Service and the Device(s) only for lawful purposes. Service Provider reserves the right to immediately terminate Service if, in their sole and absolute discretion, determine that Customer has used the Service or the Device(s) for an unlawful purpose. In the
Terms of VOIP Services Page 5 of 15 event of such termination, Customer will be responsible for the full month s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of Service. If Service Provider determines that Customer has used the Service or the Device for an unlawful purpose, Service Provider may forward the relevant communication and other information, including Customer identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to our forwarding of any such communications and information to these authorities. In addition, Service Provider will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the Customer or others. (b) Inappropriate Conduct Customer shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another s privacy, or any similar behavior. Service Provider reserve the right to immediately terminate Customer Service if, in our sole and absolute discretion, Service Provider determine that Customer have used the Service or the Device in any of the aforementioned ways. In the event of such termination, Customer will be responsible for the full month s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of Customer Service. If Service Provider believe that Customer have used the Service or the Device in any of the aforementioned ways, Service Provider may forward the relevant communication and other information, including Customer identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to our forwarding of any such communications and information to these authorities. In addition, Service Provider will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the Customer or others 2.6 Use of Service and Device(s) by Customers Outside of the United States. Service Provider does not offer or support calls to any countries outside of the United States and Canada. Service Provider reserves the right to terminate Service immediately if Service Provider determines, in their sole and absolute discretion, that Customer has used the Service or the Device outside of the United States or Canada. Also, Customer will be solely responsible for any violations of local laws and regulations resulting from such use. 2.7 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software. (a) Copyright; Trademark The Service and Device and any firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our Service Provider sites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our Service Provider sites, corporate names, service marks, trademarks, trade names, logos and
Terms of VOIP Services Page 6 of 15 domain names (collectively marks ) are and will at all times remain our exclusive property. Nothing in this Agreement grants Customer the right or license to use any of our marks. (b) Unauthorized Usage of Device Firmware or Software Customer has not been granted 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 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. Customer expressly agree that the Device is exclusively for use in connection with the Service and that Service Provider will not provide any passwords, codes or other information or assistance that would enable Customer to use the Device for any other purpose. Service Provider reserve the right to prohibit the use of any interface device that Service Provider have not provided to Customer or otherwise authorized for use, in writing. Customer hereby represent and warrant that Customer possess all required rights, including software and/or firmware licenses, to use any interface device that Service Provider have not provided to Customer. In addition, Customer shall indemnify and hold us harmless against any and all liability arising out of Customer use of such interface device with the Service. Customer 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. 2.9 Theft of Service. Customer shall immediately notify Service Provider, in writing or by calling the Customer Support, if any Device(s) are stolen or if Customer becomes aware at any time that Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. Customer must provide their account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of Customer Service and additional charges to Customer. Until such time as Service Provider receive notice of the theft, fraudulent use or unauthorized use, Customer will be liable for all use of the Service using a Device stolen from Customer and any and all stolen, fraudulent or unauthorized use of the Service. 2.10 Return of Device(s) owned by Service Provider, and is covered by rental or lease arrangements with the Customer. (a) Customer must return Device(s) within fourteen (14) days of the termination of Service to receive a credit for any termination fee provided that: - the Service is terminated within the first thirty (30) days following the activation of the Service; - each Device is in good working order and visual condition, reasonable wear and tear from age are excluded, and include all parts and accessories;
Terms of VOIP Services Page 7 of 15 - the original packaging, and documentation for devices that have been provided to Customer within a 60 day period of time; - Each Device is accompanied with a valid Return Authorization Number. Such numbers can be obtained by contacting the Customer Support Department at support@transglobalcomm.com or by phone at 800-982-2173. - Customer is responsible for all costs of shipping the Device back to Service Provider. If Customer disconnects multiple lines, Service Provider will issue Customer a credit for all termination fees upon receipt of all Devices in accordance with the requirements set forth above. 2.11 Number Transfer on Service Termination. Upon the termination of Service, Service Provider may, in their sole and absolute discretion, release to Customer s new service provider the telephone number(s) that Customer ported (transferred or moved over) from Customer s previous service provider and used in connection with Customer Service if: - such new service provider is able to accept such number; - Customer account has been properly terminated; - Customer account is completely current, including payment for all charges and applicable termination fees; and - Customer request the transfer upon terminating Customer account. 2.12 Service Distinctions. The Service is not a telecommunications service and Service Provider provides it on a best efforts basis. The Service is subject to different regulatory treatment than telecommunications service which may limit or otherwise affect Customer rights of redress before regulatory agencies. 2.13 Ownership and Risk of Loss. Unless specifically noted otherwise, in-writing at the time that Service terms are finalized, Customer bears all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to Customer until it is returned to Service provider in accordance with this Agreement. 2.14 Special calling restrictions and capabilities The Service does not support 0+ or 0- (operator assisted calling), including, without limitation, collect calls, third party billing calls or calling card calls. The Service may not support X11 types of non-emergency calls in one or more (or all) service areas. Calling capabilities will be evaluated and provided to Customer at the time of Service activation. However, ongoing compatibilities with new or modified types of calling within the public switched network cannot be guaranteed.
Terms of VOIP Services Page 8 of 15 2.15 Directory Listing. Phone numbers which have been obtained directly from Service Provider cannot be listed in any telephone directories. Phone numbers which have been ported (transferred) from Customer s previous service provider will be evaluated to determine whether they can be listed. 2.16 Incompatibility with Other Services. (a) Security Systems. The Service may not be compatible with security systems. Customer may be required to maintain a telephone connection through Customer local exchange carrier in order to use any alarm monitoring functions for any security system installed in Customer home or business. Customer is responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service. (b) Internet and Cable Modem Compatibility Unless Customer is subscribed to Service Provider s IT managed support services, Customer acknowledges that the Service may not be compatible with all internet services. It is further acknowledged that some providers of internet service may provide modems that prevent the transmission of communications using the Service. Service Provider does not warrant that the Services will be compatible with all internet services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular internet service. Customer is responsible for notifying Service Provider of any changes in internet connectivity arrangements or significant changes in their internet applications prior to implementing such change. Service provider is not responsible for any interruption or impairment of Service that may occur from their changes in internet connectivity or applications subsequent to the initial installation of Service, and reserves the right to terminate Services if the new internet arrangements will not support the Service. 3. CHARGES; PAYMENTS; TAXES; TERMINATION 3.1 Billing Policy Billing notices will be processed monthly by way of email. Customer will have access to the invoice details on their portion of the Trans Global Communications Portal. Logon information will be provided upon completion of the Service Agreement. All recurring charges will be billed, including applicable taxes and surcharges, in advance. Charges which are subject to Usage such as Metered Services, 911 calling, etc and other onetime charges will be billed in the next billing cycle from when they are incurred. Examples of onetime charges are: - activation fees; - monthly Service fees; - international usage charges; - advanced feature charges;
Terms of VOIP Services Page 9 of 15 - equipment purchases; - termination fees; and - shipping and handling charges. The amount of such fees and charges shall be placed on the proposals and/or invoices and may change from time to time. Service Provider reserve the right to bill at more frequent intervals if the amount Customer owes Service Provider at any time exceeds $250. 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 provided by Service Provider. 3.2 Billing Disputes. Customer must notify Service Provider in writing within seven days after receiving Customer invoice or billing statement if Customer dispute any Service Provider charges. Otherwise, Customer will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: Trans Global Communications, Inc. 3505 Roxboro Street Durham, North Carolina 27704 Or transglobal@transglobalcomm.com 3.3 Payment Policy and Collection (a) Payment Options and responsibilities. Payments are due on the date on the invoice by check or debits to checking account using Automated Clearing House (ACH). Customer must provide Service provider with a valid email address, billing address or ACH Authorization for monthly billings. If Service is terminated for non-payment, Customer will remain fully liable for all charges pursuant to this Agreement and any and all costs incurred by Service Provider to collect such amounts, including, without limitation, interest, collection costs and attorney s fees. (b) Collection. 3.4 Termination/Discontinuance of Service. Service Provider reserves the right to suspend or terminate Service, at any time in our sole and absolute discretion, with a minimum of 30 days notice. If Service is terminated without cause, Customer is only responsible for amounts incurred through the date of termination, including a pro-rated portion of the final month s charges. If Service is suspended or terminated for cause, e.g., breach of agreement and/or non-payment, Customer will be responsible for the full month s
Terms of VOIP Services Page 10 of 15 charges to the end of the current term, including, without limitation, unbilled charges, plus the termination fee, if applicable, all of which will immediately become due and payable. 3.5 Taxes. Billings will include all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges which have been deemed to apply by Service Provider using best information available from taxing authorities. This applies to those which may be enacted in the future, that arise from or as a result of Customer 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 as set forth in the Agreement. If Customer is exempt from payment of such taxes, Customer must provide Service Provider with the original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Service Provider receive such certificate. 3.6 Termination Fee A Termination Fee of $9.99 per phone number or device may charged, in addition to the FULL RETAIL PRICE for each Device supplied by Service Provider if Service is terminated for any reason during the Term following the activation of Customer Service. 3.7 Money Back Guarantee a. Service Provider provides Customer a 30-day money back guarantee from the date of activation of Service. The money back guarantee applies only to the first-ordered service package, not to additional or secondary orders. Service Provider will refund the activation fee and monthly charge for first month of Service provided that: * Usage has not exceeded 2500 minutes of metered time; and * Cancel occurs within 30-days of the time of service activation. b. Federal excise taxes and any other applicable taxes will not be refunded. Customer will remain responsible for any charges for usage fees including but not limited to local or international usage, calls to Service Provider toll free numbers and directory assistance. Service Provider reserve the right to modify or revoke this money back guarantee at any time, without prior notice. 3.8 Toll Free Charge Recovery. If Toll Free charges have been incurred by Customer from the initial or any future toll free features, Service Provider will be entitled to recover any such charges incurred either directly or indirectly in connection with toll free calls. Service Provider may recover these amounts by means of a per-call charge at the current rate, rounded up to the next cent, or in such other fashion as Service Provider deem appropriate for the recovery of these costs. 3.9 Charges for Directory Calls (411). A charge of $1.50 will be billed for each call made to directory assistance enabled within these Services.
Terms of VOIP Services Page 11 of 15 3.10 Charges for Conference Bridge Calls. A Per-minute charge will be billed for each caller when using the Conference Bridge. Customer Conference Bridge per minute usage fee will be: (i) 3.9 cents per minute, or (ii) the per minute Conference Bridge usage fee determined in Customer Service Activation Form or online order form. The per-minute usage fee will be calculated based on all participants on the conference bridge, including on-network and off-network participants. 4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES 4.1 Limitation of Liability. Service Provider is not liable for any delay, failure or degradation in the provided Service, including 911 Calling. This includes the timely access to an active circuit for dialing, the routing of calls and emergency information to the desired destination, the quality of those calls, and the impact of VOIP Services upon other services utilizing the common internet connection. The following are examples, but not all types, of causes for Service impairments: - an act or omission of an underlying carrier, service provider, vendor or other third party; - equipment, network or facility failure; - equipment, network or facility upgrade or modification; - force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; - equipment, network or facility shortage; - equipment or facility relocation; - service, equipment, network or facility failure caused by the loss of transmission facility to Customer; - outage of, or blocking of ports by, Customer ISP or internet service provider or other impediment to usage of the Service caused by any third party; - any act or omission by Customer or any person using the Service or Device provided to Customer; or - any other cause that is beyond our 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 forwarded. Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period. 4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES
Terms of VOIP Services Page 12 of 15 SERVICES TO CUSTOMER IN CONNECTION 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 PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, 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 ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. 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 SERVICE PROVIDER SERVICE PROVIDERRE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. 4.3 Indemnification and Survival. (a) Indemnification. Customer shall defend, indemnify, and hold harmless Service Provider, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device. (b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive. 4.4 No Warranties on Service. SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR 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 SERVICE WILL MEET CUSTOMER S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, SERVICE PROVIDER DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, AND DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER SERVICE PROVIDER NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR ANY IMPACT ON OPERATION OF CUSTOMER COMPUTER APPLICATIONS OR UNAUTHORIZED ACCESS TO SERVICE PROVIDER OR CUSTOMER TRANSMISSION FACILITIES OR
Terms of VOIP Services Page 13 of 15 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 SERVICE PROVIDER S OR ITS SERVICE PROVIDER S OR VENDORS NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY SERVICE PROVIDER OR SERVICE PROVIDER S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. 4.5 Device Warranties. (a) Limited Warranty. Except as set forth herein, if Customer received the Device new from Service Provider 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. (b) No Warranty. If Customer Device did not include a warranty at the time of receipt, Customer is accepting the Device as is. Customer is not entitled to replacement, repair or refund in the event of any defect. (c) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, SERVICE PROVIDER MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM 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. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS CUSTOMERS. 4.6 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.
Terms of VOIP Services Page 14 of 15 4.7 Content. Customer is liable for any and all liability that may arise out of their content transmitted to any person, whether authorized or unauthorized, using Customer s Service or Device (each such person, a User ). Customer shall assure that any User s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. Service Provider reserve the right to terminate or suspend Customer s Services and remove any Users content from the Service, if Service provider determines, in their sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with our ability to provide Services to Customer or others. Our action or inaction under this Section will not constitute any review or approval of Customer s use or content. 4.8 Recording Conversations. Service Provider provides a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is solely responsible for applying the local laws in the relevant jurisdiction when using this feature. 5. MISCELLANEOUS 5.1 Governing Law. The Agreement and the relationship between Customer and Service Provider is governed by the laws of the State of North Carolina 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 5.2, Customer shall submit to the personal and exclusive jurisdiction of the courts located within Durham County, North Carolina and waive any objection as to venue or inconvenient forum. 5.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between Service Provider and Customer, and any member of their household or any guest or employee of Customer and Service Provider arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Durham County, North Carolina. The arbitrator s decision will follow the plain meaning of the relevant documents, and will 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. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. Customer shall 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. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT
Terms of VOIP Services Page 15 of 15 TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, DURHAM COUNTY, NORTH CAROLINA. 5.3 No Waiver of Rights. Service Provider s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. 5.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and any rates for Services found on Service Provider website constitute the entire agreement between Customer and Service Provider and govern the use of the Service by Customer, members of Customer business, employees and guests. This Agreement supersedes any prior agreements between Customer and Service Provider and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. 5.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. 6. FUTURE CHANGES TO THIS AGREEMENT Service Provider 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 www.transglobalcomm.com. Service Provider will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on Customer on the date they are posted to Service Provider website and no further notice by us is required upon Customer continued use of the Service. The Agreement as and when 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. 7. PRIVACY Service Provider Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Service Provider is not liable for any lack of privacy which may be experienced with regard to the Service.