VoipBar partners with one of the nation's leading 911 underlying service providers in order to assist You in case of an emergency. VoipBar depends upon its E911 and basic 911 underlying service provider to assist VoipBar in supporting your emergency calls. Most of VoipBar's Service areas support E911 emergency calls. VoipBar will automatically upgrade its customers that have basic 911 emergency Service to E911 emergency Service once its underlying service provider upgrades its connections to the emergency call centers. If You have basic 911 emergency Service, the local emergency operator will not have immediate access to your call back number or to your exact location when receiving your emergency call. Accordingly, You must be prepared to give the basic 911 emergency operator this information. Until and unless You do so, the basic 911 emergency operator may not be able to call You back or dispatch assistance if the call is disconnected or if You are unable to verbally communicate that information. We will not give You notice of the upgrade, however You can verify your type of 911 emergency Service by logging into your account online. VoipBar's Service is only available in areas where 911 emergency Services can be provided to You at your registered physical location that was approved by Us when You either signed up for Service or when You updated your registered physical location information with Us.
Acknowledgement
You understand and acknowledge that VoipBar's 911 emergency Service has certain limitations and works differently when compared to traditional 911 emergency service. VoipBar's 911 emergency Service limitations and the way VoipBar deploys its 911 emergency Service may make VoipBar unsuitable to some users. You should carefully evaluate VoipBar's 911 emergency Service limitations when deciding to activate VoipBar's Service. You agree and acknowledge that it is your responsibility to select a 911 emergency service provider best suited to meet your emergency calling needs, and to make the necessary arrangements for accessing emergency calling services, such as maintaining a traditional phone line or cellular (mobile) phone as a backup means for your emergency calls. By entering into this Agreement, You will be presumed to have assumed the risk of losing 911 emergency dialing capabilities and agree to provide your telephone number and other identifying information to 911 emergency authorities as VoipBar deems necessary (in its sole opinion and discretion) in case of an emergency.
Limitations of Emergency Calling - 911 Dialing
VoipBar depends upon certain third parties to provide 911 emergency Service and is thus subject to their network implementation and deployment schedules. Consequently, E911 emergency Service may be limited or unavailable in certain geographic areas until these third parties have completed this implementation and deployment. When You sign-up for the Service, We will advise You of the kind of 911 emergency Service, E911 or basic 911, that will be available with your Service. In addition, You may view your account information on Our Website, which specifies the kind of 911 emergency Service You have. When there is a problem validating a customer's information and/or address or customer is identified with an international location, your 911 emergency call will be sent to the national emergency call center. In addition, emergency personnel will not receive your telephone number or know your physical location when your 911 emergency call is routed to the national emergency call center. Routing to a national emergency call center could substantially delay the response of emergency service providers or could result in no emergency service being provided to You at all.
VoipBar's 911 and E911 Emergency Service may also be Limited or Unavailable in the Following Circumstances:
- If your Digital Subscriber Line ("DSL"), cable modem, or other broadband access connections are disconnected, suspended, or interrupted for any reason, including electric power failures;
- If You relocate or move the VoipBar Adapter to a location other than the one that You registered with Us or if You otherwise disconnect or modify the VoipBar Adapter;
- If You change your telephone number or if You add new telephone numbers to your account, and do not successfully register your location of use for each changed or newly added telephone number;
- If there are delays or disruptions of Service in the network or Services of VoipBar's E911 underlying service provider;
- If there is network congestion and/or a reduction in network speed; or
- If Service is interrupted or terminated for any reason, including the suspension or termination of your account with Us or with your broadband access supplier.
While VoipBar will make commercially reasonable efforts to minimize the disruptive effects of VoipBar's Service interruptions, degradations, or outages, it makes no guarantees or assurances that these will not occur. Such commercially reasonable efforts are VoipBar's sole obligation regarding such interruptions. Such outages or other Service disruptions may include loss of 911 emergency Service dialing capabilities for extended periods of time.
Furthermore, home alarm systems, fax machines and other devices that attach to your home computers, local telephone service, cable system or other devices may not work with the Service. You are solely responsible for testing the operation of your home alarm systems, fax machines or other devices that You attach to the Service.
VoipBar VoIP Service
Thank you for selecting VoipBar as your Voice-Over-Internet Protocol ("VOIP") service provider You may activate your Service by clicking "accept" and initialing where indicated on the sign-up page. However, before You do so, there are a few important things to understand about the Service and, in particular, about its 911 emergency calling limitations as compared to traditional 911 emergency service. It is also very important that You carefully review and understand this Agreement. By indicating your acceptance on the sign-up page, You represent that You are of legal age and agree to be bound by the rates, terms and conditions of this Service and this Agreement.
Monthly Term
Service is offered on a monthly basis for a term that begins on the date that VoipBar 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 unless you give us written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to disconnect 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 disconnection fee, if applicable, all of which will immediately become due and payable. Expiration of the term or disconnection of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement. If you disconnect VoipBar service after the Money Back Guarantee period, but within the first twelve months, VoipBar reserves the right to charge a disconnection fee of $39.99 per line.
Other Term Commitments
If you accept any promotion, such as a free month of service, a rebate or other incentive, there may be a term commitment associated with the benefit you accepted. Your term begins the date you activate the equipment or accept the promotion and ends on the last day of the commitment period. The commitment period will be disclosed as part of the promotion. If you disconnect service prior to the end of the commitment period, you agree to pay VoipBar a recovery fee for the promotion and/or promotion you accepted. Recovery fees are cumulative and in addition to any other charges or fees you may owe VoipBar and any fees or charges the VoipBar requires upon disconnection of service. Each recovery fee is an amount equal to the difference between the price you paid and the regular price of the good or service at the time you accepted the equipment or promotion.
Residential Use of Service & Device
If you subscribe to VoipBar's residential services, the Service and the Device are provided to you solely for residential use. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device 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. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the Device is, or at any time was, inconsistent with normal residential usage patterns. In addition, you will be required to pay our higher rates for commercial service for all periods in which your use of the Service or the Device was inconsistent with normal residential use.
Small Business Use of Service & Device
If you subscribe to VoipBar's Small Business services, the Service and Device are provided to you as a small business user. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device 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. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the Device is, or at any time was, inconsistent with normal small business or business travel usage patterns, or that you have at any time used the Service or the Device for any of the aforementioned or similar activities.
Prohibited Uses
You may use the Service and the VoipBar Adapter for lawful purposes. Any use of the Service or the VoipBar Adapter in any way that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any other similar behavior, is expressly prohibited. You may not tamper with the Services or with the VoipBar Adapter, nor interfere with the provision or use of the Services to or by any other person. In addition to all other remedies, We have the right to immediately terminate your Service without notice, if, in Our sole and absolute discretion, We determine that You have used the Service or the VoipBar Adapter for an unlawful purpose or in violation of this Agreement.
Use of Service Outside the United States
You may make International calls using Our Service, however using and/or initiating the VoipBar Service or the VoipBar Adapter in any countries other than the United States is not supported by VoipBar. If You use the Service or the VoipBar Adapter outside of the United States, You will be solely responsible for - and You expressly agree to indemnify, defend and hold harmless VoipBar, its officers, employees, agents and contractors from and against any claims, judgments, liabilities and expenses (including reasonable attorneys' fees) arising from or in connection with - violations of any foreign or local laws, policies or regulations resulting from such use. VoipBar reserves the right to terminate your Service immediately if it determines, in its sole and absolute discretion, that You have used the Service or the VoipBar Adapter outside of the United States.
Theft of Service
You shall not use the Service in a manner calculated to avoid VoipBar policies and procedures. You shall not obtain or use the Services in an improper manner. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your 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 disconnection of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service. VoipBar reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
Number Selection and Number Portability
VoipBar shall supply You with a new telephone number upon your selection of a Service Plan for your use solely in connection with the Service. You may not resell the telephone number and VoipBar conveys no right, title or interest whatsoever in the telephone number to You. If you decide to port your old number, it could take from 4 to 6 weeks to port the number, meanwhile, VoipBar will provide you with a temporary number which will be assigned to your service, as the number is ported you will be notified and your old number will replace your temporary number.
Number Transfer on Service Disconnection
Upon the disconnection of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if: such new service provider is able to accept such number, or your account has been properly disconnected, your account is completely current, including payment for all charges and applicable disconnection fees; and you request the transfer upon disconnecting your account.
Conditions of Using the Service
As a condition of using the Service, it is your responsibility to provide DSL, cable modem, or other broadband access connections for use with the Service. You are solely responsible for ensuring that the broadband access connection works properly and is compatible with the Service, including without limitation, making arrangements with your broadband provider to install, troubleshoot, and maintain these connections. Your payment obligations are not excused by such broadband access failures. VoipBar's limitations of liability and your indemnification obligations described below fully apply to any failures of Service caused by the broadband access connections or its providers.
Register Your Physical Location
When You first subscribe to VoipBar's Service You must register with VoipBar the address of the physical location where You will be using the Service. Whether You move the VoipBar Adapter and/or the Service to another location You are required to register the new location with Us by logging into your account at www.voipbar.com Whether You move the VoipBar Adapter (described below) or the Service to another location and You do not register your new location with Us, any call You make using the 911 emergency Service feature will be sent to an emergency call center near the address You registered as your physical location of use when You subscribed to the Service, and not to the new location where You will use the VoipBar Adapter and/or Service. You may only register one location at a time for each broadband access line that You use with the Service. We do not guarantee that 911 emergency Service will be available at the new location.
Notify All Users
You agree to be fully responsible at all times during the term of this Agreement for notifying all members of your household and all other persons at your location of the limitations on 911 and E911 emergency Services (described above) and the possible loss of 911 emergency dialing capabilities, and of VoipBar's limitations of liability and disclaimers described in the previous paragraphs. It is your responsibility to prominently display the E911 emergency warning stickers ("911 Stickers") that were sent to You in your welcome packet, at or near the telephone handset to be used with the Services. If You did not receive these 911 Stickers with your VoipBar Adapter or if You require additional 911 Stickers, please contact Our customer care department.
Service Distinctions
The Service is not a telecommunications service and we provide it on a best efforts basis. Things beyond our control may affect the Service, such as power outages, fluctuations in the internet, your underlying broadband service. Other things may affect Service, such as maintenance. VoipBar will act in good faith to minimize disruptions to your use of and access to Service. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
Ownership and Risk of Loss
You will own 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 to us in accordance with this Agreement.
No Operator Assisted Calling
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service does not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
No Directory Listing
The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
Charges, Payments, Taxes, Disconnection & Billing
When the service is activated, you must provide us with a valid email address and a valid Credit Card. We reserve the right to stop accepting your payment method or your payments. If your Credit card expires, you close your account, your billing address changes, or your Credit card is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance, to your credit card, including, but not limited to: activation fees; monthly Service fees; airtime purchases; regulatory recovery fee; Emergency 911 Cost Recovery; 911 fees; Federal Universal Service Fee; federal, state and/or local taxes; disconnection fees; and shipping and handling charges.
Activation Fee
This fee is for setting up your account and activating your Services.
Monthly Service Fee
This is the basic charge associated with your Service. This fee includes the calling charges defined by your Service Plan, the features associated with your Service Plan and basic account services.
Yearly Service Fee
This is the basic charge associated with your Service. This fee includes the calling charges defined by your Service Plan, the features associated with your Service Plan, and basic account services.
Usage Charges
If You exceed the number of calling minutes on your Service Plan, VoipBar will bill You for the minutes You used above your allowance. VoipBar also bills for calls to directory assistance and to other information services.
International Usage Charges
Please go to Our Website at www.voipbar.com/rates for Our International rates.
Regulatory Recovery Fee
VoipBar reserves the right, to the extent permitted by law, to assess a regulatory surcharge on Customer's charges from time to time to recover Universal Service Fund (USF) fees or other Regulatory Charges that Regulatory Authorities may assess on VoipBar or the Services.
911 Emergency Regulated Charge
A 911 emergency cost recovery charge of $0.99 applies to each Service line. This fee is used to recover costs associated with developing, implementing and maintaining a nationwide E911 emergency service in compliance with FCC regulations, VoipBar's 911 emergency dialing and the underlying service provider's national 911 emergency call center. State and/or local governments or third parties may assess fees on VoipBar to pay for emergency services. To the extent permitted by law, VoipBar may pass those fees on to You and, in such circumstances, You agree to pay same.
Other Charges
You are responsible for all charges for international use and other per minute calls, as well as for calls to payphones, directory assistance, collect calls.. You agree that We will charge your credit/debit card for those calls.
The amount of such fees and charges shall be published on our website and may change from time to time. VoipBar may introduce new products and services at special introductory pricing. Introductory pricing may change at VoipBar's discretion. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $70. VoipBar bills usage charges in full minute increments that are rounded up to the next full minute unless otherwise set forth in the rate schedules found on our website.
Billing Disputes and Notices
You must notify us in writing within seven days after receiving your statement from your bank or issuer if you dispute any VoipBar charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:
DalCom USA Ltd.
11 Middle Neck Rd. 3rd Floor
Great Neck, NY, 11021, USA
Disconnection; Discontinuance of Service
We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service without a stated reason, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final month's charges. If your Service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus the disconnection fee, if applicable, all of which will immediately become due and payable. VoipBar will pursue collection for unpaid amounts on disconnected accounts and may report to credit bureaus.
Taxes
State and local governments may assess taxes, surcharges and/or fees on your use of VoipBar service. These charges may be a flat fee or a percentage of your VoipBar charges and may change from time to time without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for 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 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 payment method as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
Money Back Guarantee; Limitations and Conditions
We offer a thirty (30) day money back guarantee from the date of activation of your Service (different periods apply for Retail Customers depending on the applicable offer details contained in the advertising or online content of the retail store or dealer that sold the Retail Customer the Equipment). The money back guarantee applies only to the first-ordered line per account, not to additional or secondary lines. We will refund the activation fee, the monthly charge for the first month of Service, shipping charges and the disconnection fee provided that:
- you have not exceeded 250 minutes of usage (500 minutes for Retail Customers);
- you cancel your Service within the applicable period;
- prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at billing@VoipBar.com, and you return the Device to us if purchased at www.VoipBar.com in original condition, normal wear and tear excluded, within fourteen (14) days after the date of cancellation of your Service; and
- the Device is returned in the original packaging with the UPC or bar code intact and is accompanied by all components, accessories, parts, manuals, registration cards and other documentation.
VoipBar may not be able to refund all federal excise taxes and any other applicable taxes. You will be responsible for any charges for international usage, payphone calls to VoipBar toll free numbers and directory assistance. We reserve the right to disconnect or revoke this money back guarantee at any time, without prior notice.
LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
Limitation of Liability
We will 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:
- 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 power to you;
- outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
- any act or omission by you or any person using the Service or Device provided to you; 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.
Disclaimer of Liability for Damages
IN NO EVENT WILL VOIPBAR, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, 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 WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
Indemnification and Survival
(a) Indemnification. You shall defend, indemnify, and hold harmless VoipBar, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you 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, you 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.
No Warranties on Service
WE MAKE 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, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER VOIPBAR 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 UNAUTHORIZED ACCESS TO OUR OR YOUR 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 VOIPBAR'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY VOIPBAR OR VOIPBAR'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
Device Warranties
(a) Limited Warranty. Except as set forth herein, if you received a Device from us and the Device included a limited warranty at the time of receipt, you 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 A LIMITED WARRANTY DID NOT COME WITH YOUR DEVICE, YOU ARE ACCEPTING THE DEVICE "AS IS". YOUR DEVICE IS NOT ELIGIBLE FOR REPLACEMENT, REPAIR OR REFUND AFTER THE MONEY BACK GUARANTEE PERIOD. (c) Retail Customer Limited Warranty. For Retail Customers only, we 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 does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. A 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 2.10. 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. The Retail Customer limited warranty will 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. (d) 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, WE 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 PLUS CUSTOMERS.
No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
Content
You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a "User"). You shall assure that your and your User's use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your Users' content from the Service, if we determine, in our 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 you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users' use or content.
Software Intellectual Properties
VoipBar hereby grants Customer a personal, non-transferable and non-exclusive sublicense (without the right to further sublicense) to use, in object code form, all software used in conjunction with (or imbedded in) the Service and the VoipBar Adapter, together with all written and electronic documentation and data provided to You by VoipBar in connection therewith (collectively, the "Software"), solely in connection with the Services or the VoipBar Adapter (including all software, microcode embedded therein), as the case may be, and in strict accordance with applicable written and electronic documentation pertaining thereto, and with all provisions of VoipBar's license of said Software from its supplier/licensor.
VoipBar (or its suppliers, as the case may be) shall retain all right, title and interest in and to all copyrights, patents, service marks, trademarks, trade names and other intellectual property rights embedded in or associated with the Software and nothing in this Agreement conveys or transfers any such rights whatsoever to Customer.
Treatment of Personal Information
By signing below, You represent that You have read and understood VoipBar's privacy policy set forth at www.voipbar.com/privacy and that You agree to VoipBar's treatment and use of your personal information as set forth therein.
Force Majuere
If the performance of either party under this Agreement, or any obligation hereunder, is prevented, restricted or interfered with by reason of (i) weather or environmental disturbances (including earthquakes, floods, fires, storms, and other disturbances) or acts of God; (ii) war, revolution, civil commotion, acts of public enemies, terrorism or national emergency, blockage or embargo; (iii) acts of any domestic federal, state, or local governmental authority or any foreign governmental authority (such acts including any regulatory or administrative decisions making said performance or obligation economically or technically unfeasible); (iv) labor difficulties, including without limitation, strikes, slowdowns, picketing or boycotts; (v) failure of any third party (including any other carrier or supplier or Customer's broadband access supplier) to provide services, facilities or equipment required for such performance or obligation (or any other act or omission by said third party); or (vi) any other circumstances beyond the reasonable control of the party affected (said events described in clauses (i) through (vi) foregoing collectively referred to as "Force Majeure Events", the party whose performance is affected by said Force Majeure Event, upon giving prompt notice to the other party, shall be excused from such performance (excluding, however, Customer's payment obligations to VoipBar for any Service or other performance not directly affected by the Force Majeure Event)).
Entirety of Agreement
This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersedes any and all prior or contemporaneous written or verbal proposals, agreements, understandings or other discussions respecting same.
No Waiver
A failure by VoipBar to enforce any provision of this Agreement is not to be deemed a waiver of any provision hereof and any such waiver must be in writing. Nor will a waiver of any provision by VoipBar at any time be deemed a waiver of its subsequent right to enforce such provision or a waiver of any other provision of this Agreement.
Governing Law
The Agreement and the relationship between You and Us are governed by the laws of the State of New York 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, You shall submit to the personal and exclusive jurisdiction of the courts located within the State of New York and waive any objection as to venue or inconvenient forum.
Mandatory Arbitration and No Jury Trial
Any dispute or Claim between You, any member of your household or any guest or employee, and Us arising out of or relating to the Service or Equipment, 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 New York, NY. 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 arbitrator 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. You 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 to be subject to jurisdiction in, and conduct arbitral proceedings in, New York.
No Joint Venture or Third Party Beneficiary
Nothing in this Agreement shall be construed as creating a joint venture or partnership between the parties. Other than as set forth in this Agreement, neither party has or shall have any authority to bind, assume any obligation for, nor incur any debt on behalf of, the other party. This Agreement does not (and is not to be construed to) create a beneficial interest for or create any rights enforceable by any person (including any User) not a party hereto.
Severability
Should any provision of this Agreement be held or otherwise determined by any Regulatory Authority to be invalid, unlawful, or unenforceable in any jurisdiction, that provision is to be deemed separate, distinct and independent, and is to be deemed severed and ineffective to the extent of such holding or determination without (i) invalidating the remaining provisions of this Agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such severed provision in any other jurisdiction.
No Assignment
Customer may not assign its rights or delegate its obligations under this Agreement to any other person without VoipBar's written consent, which may be withheld in Our sole discretion. This Agreement will inure to the benefit of the parties' respective successors in interest, personal representatives, and permitted assigns.
Interpretation and Survival
The parties agree and acknowledge that they have had an opportunity to review the Agreement with their respective legal counsel and, accordingly, its provisions are not to be construed against the party having drafted same. Any provision of this Agreement (including Customer's payment obligations) that by its terms or any reasonable interpretation thereof will survive the expiration of this Agreement for the period specified (or if none specified) for the applicable statute of limitations.
Use of Terms
The words "writing" or "written" mean preserved or presented in retrievable or reproducible written or electronic form. Except as provided in this Agreement, "writing" or "written" may mean electronic (including E-mail (but not voice mail) transmissions where receipt is acknowledged by return E-mail by the recipient) or hard copy, including by facsimile (with acknowledgment of receipt from the recipient's facsimile machine) unless otherwise stated.
Publicity and Marks
No public statements or announcements relating to this Agreement may be made by either party without the prior written consent of the other party. Each party agrees not to display or use, in advertising or otherwise, any of the other party's trade names, logos, trademarks, service marks or similar identification without the other's prior written consent, which consent may be withheld or revoked at any time.
Further Assurances
From and after the date of this Agreement, Customer shall (or shall cause any of its Users to), from time to time, at the request of VoipBar and without further consideration, do, execute and deliver, cause to be done, executed and delivered, all such further acts, things, documents and instruments (such acts including, any filings required by any Regulatory Authority) as may be reasonably requested or required by VoipBar (at VoipBar's sole expense) to evidence and to give full force and effect to this Agreement.
Future Changes to this Agreement
We 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 Our Website at www.voipbar.com. Such changes will be binding upon You unless We hear from You within fifteen (15) calendar days from the date they are posted to Our Website. If We do not hear from You within that period, the changes will be deemed conclusively accepted. In the event You do not wish to be bound by the change, your sole remedy would be to terminate the Agreement without liability in accordance with the provisions hereof (including payment of any charges due through the date of termination). 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 Equipment.
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