ComRes, Inc. VoIP Talk USA Terms and Conditions
ComRes, Inc.
This agreement ("Agreement") is between ComRes, Inc. (ComRes.) and a Customer "Customer") of the ComRes Voip Talk USA, IP, VOIP and Video Services. Any ComRes or products ("Services") provided by ComRes to Customer shall be governed by the terms and conditions herein. By activating the Services, Customer acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein. Customer acknowledges that they are of legal age to enter into this Agreement.
1. TERMS AND CONDITIONS. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. Any additional, different, or conflicting terms and conditions on any such document issued by Customer at any time are hereby objected to by ComRes, and any such documents shall be wholly inapplicable to any sale made or service rendered hereunder and shall not be binding in any way on ComRes. No waiver or amendment to this contract or these terms and conditions shall be binding on ComRes unless made in writing expressly stating that it is such a waiver or amendment and signed by a representative or distributor of ComRes.
2. TERM. The term of this Agreement ("Term") begins on the date that services purchased by the Customer are delivered to the Customer by ComRes, and continues for the duration of the service period as defined by the service plan that is selected by Customer ("Plan"). Subsequent terms of this Agreement automatically renew on a monthly basis without further action by Customer unless Customer gives ComRes written notice of non-renewal at least ten [10] days before the end of the monthly term in which the notice is given. Customer is purchasing the Service for full monthly or annual terms. If a Customer attempts to terminate Service for a plan on that is on a month-to-month term prior to the end of a billing month term, Customer will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus any applicable disconnect fee, all of which immediately become due and payable. If a Customer attempts to terminate Service for a plan on an annual term agreement prior to the end of the 1, 2 or 3-year term, Customer will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, Early Termination fees of $20.00 per month times the remaining months left in the term agreement, plus any applicable disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of the Services does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement. The rates and charges for the Service, which may be found at www.comresusa.com/voiprates, are effective as of February 20, 2008 and are subject to change. For your most current rates and charges, the most current version of the Agreement, or if you have questions about your services, please visit our website www.comresusa.com/voiprates or call ComRes at 954-462-9600.
3. EMERGENCY CALLING SERVICE FOR US RESIDENTS ONLY:
3.1. 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. ComRes offers a limited Emergency Calling Service available only on ComRes Device Sipura 3000 or the Sipura 3100, but you acknowledge and understand that such Emergency Calling Service dialing is different in a number of important ways from traditional 911 services, as described herein. ComRes Emergency Calling Service dialing is available only on ComRes-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 use the Service as to the non-availability of traditional 911 or E911 dialing from your ComRes Service and Device(s). If you activate ComRes Emergency Calling Service dialing, you agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service as to the important differences and limitations of ComRes Emergency Calling Service dialing as compared with traditional 911 or E911 dialing, as set forth in this Agreement. ComRes STRONGLY RECOMMEDS THAT CUSTOMER MAINTAINS IN THEIR PLACE OF RESIDENCE AND/OR BUSINESS A LOCAL TELEPHONE LINE PROVIDED BY NON-IP, NON-VOIP COMPANIES THAT HAS TRADITIONAL 911 AND/OR E911 CAPABILITIES. These lines are traditionally available from Local Exchange Companies (LECS and C-LECS). Should there be any questions please contact ComRes at 954-462-9600 in the US.
3.2. Description of Emergency Calling Service-Type Dialing Capabilities - Activation Required. ComRes does offer an Emergency Calling Service that is different in a number of important ways from traditional 911 services. Utilizing and Integrated Access Device (IAD) a secondary line is required from the LECS or C-LECS to route the call to your respective 900 or E911 service office. THE USER ACKNOLEDGES THE NEED TO OBTAIN A SECONDARY LINE (NON-VOIP) AND HAVE IT CONNECTED TO THE INTEGRATED ACCESS DEVICE (IAD) IN ORDER FOR 911 OR E911 TO OPERATE.
3.3. Service Outage:
3.3.1. Power Outage:
You acknowledge and understand that Emergency Calling Service dialing does not function without power. Should there be an interruption in the power supply, the Service and Emergency Calling Service dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment before using the Service or Emergency Calling Service dialing.
3.3.2. Broadband Service Outage
You acknowledge and understand that service outages by your broadband provider will prevent, and that network congestion may slow, ALL Service including Emergency Calling Service dialing.
3.3.3. 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 Emergency Calling Service dialing.
3.3.4. Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service, including Emergency Calling Service dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
3.3.5. Limitation of Liability and Indemnification
You acknowledge and understand that ComRes’s liability is limited for any Service outage and/or inability to dial Emergency Calling Service from your line or to access emergency service personnel, as set forth in this document. You agree to defend, indemnify, and hold harmless ComRes, its officers, directors, employees, affiliates, distributors 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 Emergency Calling Service 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.
3.4. Change of Physical Location of ComRes Equipment:
You acknowledge and understand that Emergency Calling Service dialing does not function properly or may not function at all if you take your equipment with you a local line from a LEC or C-LEC is required to properly route 911 or E911 calls to the local emergency service center, 911 and E911 service is only available in the USA.
E. Alternative Emergency Calling Service Arrangements:
You acknowledge that ComRes does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional 911 or E911 services.
4. ComRes’s LOCAL, NORTH AMERICA, WORLD AND SUPER WORLD FREEDOM PLANS: Prohibition on Resale. If you have subscribed to ComRes’ Local, North America World and/or Super World Freedom Plans and Services, the Service is provided to you as a small business or residential user. This means that each plan has a limit of One thousand-five hundred (1,500) minutes of usage per billing month to the countries specified in each plan, excluding incoming calls, during months that Customer exceeds 1,500 minutes of outbound calling each subsequent minute will be charged at our advertise current rates available at www.comresusa.com. This further 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 ComRes in advance. Customer is responsible for supplying the standard SIP based Customer Premise Equipment (CPE) (“device”) for use with the service. Customers are solely responsible for providing, operating and supporting the device they use in conjunction with ComRes’ service. ComRes reserves the right to immediately terminate or modify the Service, if ComRes determines, in its sole discretion, that Customer's Service is being used for unlawful purposes or for re-sale of telephone services.
5. LAWFUL USE OF SERVICE AND DEVICE:
5.1. 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 ComRes ’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. ComRes reserves the right to terminate your service immediately and without advance notice if ComRes, 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 termination fee, all of which immediately becomes due and payable and may at ComRes’ 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 agrees to indemnify and hold harmless ComRes against any and all liability for any such use. If ComRes, in its sole discretion believes that you have violated the above restrictions, ComRes may forward the objectionable material, as well as your communications with ComRes and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
5.2. Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by ComRes. 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 ComRes) 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 ComRes 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 ComRes suspend or terminate your Service, the Service will not function until such time as ComRes 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).
5.3. 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 ComRes’ 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 ComRes are and shall remain the exclusive property of ComRes 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 ComRes 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 ComRes, which ComRes 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 ComRes 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.
5.4. 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 ComRes in each instance which ComRes may deny in its sole discretion. ComRes 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 termination 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.
5.5. Theft of Service. You agree to notify ComRes immediately, in writing or by calling the ComRes customer service 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 ComRes 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.
5.6. Return of Device. An Integrated Access Device (IAD) may be returned to ComRes within fourteen (14) days of the termination of Service to receive a fll credit for the price paid for the IAD, 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 ComRes ’s customer service department, (v) the service was terminated within the initial 30-day service trial period-only. The Customer is responsible for the cost and risk of return shipping of equipment. If the Customer receives cartons and/or Devices that are visibly damaged, the Customer must note the damage on the carrier's freight bill or receipt and keep a copy. In such event, the Customer 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 ComRes’s customer service department immediately. To obtain a return authorization number, the Customer must contact sales@comresusa.com or 954-462-9600.
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5.7. Number Transfer on Service Termination. Upon termination of the Service, ComRes may, at its sole discretion, release a telephone number that was ported in from a previous service provider to ComRes by you and used in connection with your Service provisioned by ComRes 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 ComRes account is completely current including payment for all charges and termination fees; and (iii) you request the transfer upon terminating your account.
5.8. 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 ComRes. 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.
5.9. 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 to ComRes.
5.10. No 0+ Calling; May Not Support x11 Calling. ComRes’ Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling). ComRes’ Service may not support 311,411, 511 and/or other x11 (other than 911, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
6. EQUIPMENT. To provide the Services, ComRes may provide Equipment to Customer. All Equipment shipments are F.O.B. ComRes’ facility. ComRes’ liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to Customer. Customer will be provided a twelve (12) month manufacturer's warranty from the date of purchase of Equipment or Service. Customer shall be required to obtain authorization from ComRes to return any Equipment. ComRes will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. ComRes will not cover replacement for lost, stolen or modified equipment. Equipment returned by Customer that is not covered under warranty may be refused by ComRes, and Customer will be responsible to pay return shipping charges. Customers who purchased through a Retail outlet may return within the first thirty (30) days to the place of purchase, after the thirty (30) days they can contact ComRes regarding warranty replacement.
7. BILLING, CHARGES AND PAYMENT.
7.1. PAYMENT. Upon purchase of the Service, Customer must provide ComRes with a valid credit card number from an issuer that is accepted by ComRes. Customer authorizes ComRes to charge the credit card number provided by Customer ("Credit Card") for all charges arising from Customer's use of the Services. Customer agrees to notify ComRes of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. ComRes shall not be responsible for any charges made by the Credit Card issuer to Customer's Credit Card account for exceeding credit limit, insufficient funds or other reasons. Customer's credit card will not be billed until product has shipped. Estimated ship dates are approximate and are not guaranteed. Customer may cancel any order due to shipping delays in excess of 15 calendar days without charge. In lieu of credit card payments, ComRes will accept, with approved credit and deposit, payment by check. In this case ComRes will always bill for recurring monthly charges in advance and metered usage as it occurs for the previous month.
7.2. CREDIT TERMS. All Services provided to Customer and covered by the Agreement shall at all times be subject to credit approval or review by ComRes. Customer will provide such credit information or assurance as is requested by ComRes at any time. ComRes, in its sole discretion and judgment, may discontinue credit at any time without notice.
7.3. BILLING. ComRes will provide Customer with a monthly on-line billing statement for the Services and bill all charges invoiced to Customer's account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month's service; toll charges and any other applicable charges are pre-paid via a deposit that does not expire and is fully refundable if not used. ComRes reserves the right to charge the Credit Card for charges due, if at any time Customer's cumulative charges for the current month exceed one hundred dollars ($100.00). Billing for monthly service fees commences upon purchase of the Services on the web site, and the first month's monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated. ComRes reserves the right to increase the amount of a Customer’s deposit as it deems necessary based on the Customer’s changing credit status or level of usage.
7.4. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, ComRes may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by ComRes. If charges cannot be processed to the Credit Card, Customer will be charged a fee of ten dollars ($10.00). No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder.
7.5. TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides ComRes with an appropriate exemption certificate. If any amounts paid for the Services by Customer are refunded by ComRes, applicable taxes may not be refundable. Customer is responsible for all required customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes and understands that the regulatory bodies that enact these fees and taxes my change them at any time or create new fees and taxes. Should regulatory agencies change fees and taxes, or create new ones, ComRes shall bill the Customer accordingly.
7.6. TRIAL PERIOD. ComRes offers a thirty (30) day service trial period ("Service Trial Period") to new Customers for their first ComRes account. The Trial Period commences upon the date Services are provisioned for the Customer’s Use by ComRes. If the Customer is not satisfied with the Services during the Trial Period, Customer may obtain a refund of the Equipment cost, activation fee and monthly service fee. Shipping and installation charges are not refundable. To obtain a refund, Customer must: a) Notify ComRes within thirty (30) days of purchase of the Services on the web site and obtain a return material authorization number from ComRes for the Equipment and b) Return the Equipment to ComRes within fourteen (14) days of cancellation of the Services in its original, unaltered condition with all packaging intact. The trial period refund shall not apply to Customers that have trial period usage in excess of Three Hundred (300) minutes. Disconnection fees shall not apply if Customer cancels service during the Trial Period. Retail Customers will be required to return the Equipment to the place of purchase within thirty (30) days of purchase to receive any refund.
7.7. RATE CHANGES. ComRes may change the prices for the Services and toll charges from time to time for monthly service plans or for services delivered after a term agreement has been completed. ComRes may change prices, plans, taxes or fees without any advance notice. In the event of a change in prices or toll charges, ComRes will post such changed rates to the web site currently located at www.comresusa.com/voiprates.
7.8.CREDITS. Customer acknowledges and agrees that the Services are provided "as is, where is." Credit allowances for interruption of the Services shall not be provided.
8. BILLING DISPUTES. You must notify ComRes in writing within 7 days after receiving your credit card statement if you dispute any ComRes charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
Customer Care Billing Department
ComRes
33 NE 2nd Street Suite 212
Fort Lauderdale, FL USA 33301
or billing@comresusa.com
9. SERVICES:
9.1. Notice of Rate Changes: ComRes may change the prices and charges for the Services from time to time. We may decrease or increase prices without providing advance notice (except for specific services which are under an annual contract term). Changes to any other rates, charges, or terms or conditions in the Agreement will be published at www.comresusa.com/voiprates and will be incorporated by reference into this Agreement.
9.2. Rounding Policy: for billing purposes, the length of each metered call is rounded as described in each Calling Plan. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent.
9.3. Calls to International Mobile Telephones; International Special Services Calls ComRes’ advertised rates for international calls are generally the rates charged for calls to landline telephones. Some calls to international mobile telephones, or to international telephone numbers considered to be special services calls, are charged a different (usually higher) rate than calls to landline telephones. The rates you will be charged are set forth in the calling plan rate tables and are typically designated by a "cellular", "mobile", “special services” or "M" notation. These rates can also be found inside your customer portal or at www.comresusa.com/voipintlrates.
9.4. Timing of Calls: Generally, timing of metered calls begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom ComRes must interconnect in order to terminate calls to foreign countries) designate a call as "answered" when the called party's line rings or after a certain number of rings, and will charge ComRes for a completed call. In these situations, ComRes will charge for the call as if it were answered by the called party.
9.5. International DID’s or phone numbers: Customers that have international (non-United States) direct inward dial phone numbers ("DID’s") are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without notice and ComRes may be required to discontinue this service, without notice. ComRes reserves the right to discontinue International DID services for any reason at any time and is only obligated to refund the pro-rated monthly fee.
9.6. Surcharges: In addition to surcharges that may be found in the applicable Calling Plan, ComRes may adjust its rates and charges or impose additional rates and charges to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs ("Governmental Charges").
9.7. Taxes
9.7.1. All taxes, tax-like charges, and tax-related surcharges are referred to collectively as "Tax(es)." ComRes may elect to impose and collect such Taxes, unless otherwise constrained by court order or direction.
9.7.2. You agree to pay all Taxes imposed. If ComRes has collected Taxes and a challenged tax is found to have been invalid and unenforceable, ComRes, in its sole discretion, will either reduce service rates for a fixed period of time in the future in order to flow-through to customers an amount equivalent to the amounts collected, or it will credit or refund such amounts to affected customers (less its reasonable administrative costs), if the amounts collected were retained by ComRes or if they were delivered to the jurisdiction and returned to ComRes, or it will negotiate an arrangement with the jurisdiction to provide a future benefit for customers in that jurisdiction.
9.7.3. If you provide ComRes with a duly authorized tax exemption certificate, ComRes will exempt you in accordance with law, effective on the date ComRes receives the certificate.
9.8. No 900 Calls: The Service does not permit calls to 900 numbers or other pay per call services.
9.9. No Operator Services. The Service does not support calls to operator services.
9.10. Directory Assistance. You agree that calls to Directory Assistance (411, 1-xxx-555-1212) that are permitted by ComRes excluding toll free Directory assistance (1-8xx-555-1212) will incur a US $.99 per call charge.
9.11. No Collect Calls: The Service does not support collect calls.
9.12. Unlimited Plans: Unlimited plans for residential and corporate customers are for typical domestic residential and business voice usage only. Callers must dial 1+ area code + 7-digit telephone number for the call to be included without an additional charge in the residential Unlimited plan and Business- Unlimited Plan, call detail is currently not available with this plan. Customers must be subscribers to Companies Long Distance Plan. Subscribers to this plan may use it only for typical residential voice usage and may not use it for extended internet or data calling. Subscribers to this plan cannot use it for any commercial use. This plan is not available to customers with a multi-line account or an account that bills to another number or is the recipient of charges billed from another number unless the customer establishes separate billing accounts for each line. Furthermore, Residential-Unlimited plan and Business- Unlimited Customer lines associated with educational institutions, (colleges, universities, etc.), call centers, telemarketing companies are not eligible for this plan. Unlimited plan usage does not include multi-party conference calls, calls to 900 numbers, directory assistance, calling card, operator services, international calling and toll free calling services. For the purposes of Residential-Unlimited plan, usage of more than 1,000 minutes per month shall be considered not to be typical residential usage. If the Company determines that usage under this plan is not consistent with typical Residential Customer usage as described herein, the Customer will be subject to an additional per minute fee of $.035 (over 1000 minutes unlimited plan allowance) or offered an alternative plan at the Company's sole discretion. For the purposes of Residential-Unlimited plan and Business- Unlimited, usage of more than 2000 minutes per month shall be considered not to be typical business usage. If the Company determines that usage under this plan is not consistent with typical Business Customer usage as described herein, the Customer will be subject to an additional per minute fee of $0.035 (over 2000 minutes unlimited plan allowance) or offered an alternative plan at the Company's sole discretion. All the above allowable minute per/plan are per line and can not be aggregated usage per account. Additional state and local mandated charges may apply on certain specified routes. In order to be eligible for this plan, the Company must be able to verify that the Customer meets each of the eligibility requirements. Customers who no longer meet these eligibility requirements will not be eligible for this plan and will be contacted by the Company and offered an alternative plan. Taxes, fees and other charges, apply. Offer may be modified or withdrawn at any time without notice. Offer excludes customers moving existing qualifying services to a new service address.
10. WARRANTY AND LIABILITY LIMITATIONS / INDEMNIFICATION
10.1 Limitation of Liability: ComRes 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:
10.1.1.) act or omission of an underlying carrier, service provider, vendor or other third party;
10.1.2.) equipment, network or facility failure;
10.1.3.) equipment, network or facility upgrade or modification;
10.1.4.) force Majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
10.1.5.) equipment, network or facility shortage;
10.1.6.) equipment or facility relocation;
10.1.7.) service, equipment, network or facility failure caused by the loss of power to Customer;
10.1.8) outage of Customer’s ISP or broadband service provider;
10.1.9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10.1.10) any other cause that is beyond ComRes ’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.
ComRes ’s aggregate liability for (i) any failure or mistake; (ii) any claim with respect to ComRes ’s performance or nonperformance hereunder or (iii) any ComRes act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
11. DISCLAIMER OF DAMAGES:
11.1. In no event shall ComRes, its officers, directors, employees, affiliates, distributors 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 ComRes was informed of the likelihood of any particular type of damages.
11.2. Indemnification Customer agrees to defend, indemnify, and hold harmless ComRes, 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.
11.3. No Warranties on Service: ComRes 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, ComRes 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 ComRes nor its officers, directors, employees, affiliates, distributors 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 ComRes ’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 ComRes ’s or its service provider's or vendors' negligence. Statements and descriptions concerning the service or device, if any, by ComRes or ComRes ’s agents or installers are informational and are not given as a warranty of any kind.
11.4. 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.
11.5. 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. ComRes reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if ComRes determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with ComRes’ 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. ComRes’ actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold ComRes 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
12. PRIVACY. ComRes utilizes the public Internet and third party networks to provide voice and video communication services. Accordingly, ComRes cannot guarantee the security of voice and video communications of Customer. ComRes is committed to respecting a Customer's privacy. Once Customer chooses to provide personally identifiable information, it will only be used in the context of the Customer's relationship with ComRes. ComRes will not sell, rent, or lease Customer’s personally identifiable information to others. Unless required by law or subpoena or if Customer's prior permission is obtained, ComRes will only share the personal data Customer provides with other ComRes entities and/or business partners that are acting on ComRes’ behalf to complete the activities described herein. Such ComRes entities and/or national or international business partners are governed by ComRes’ privacy policies with respect to the use of this data. ComRes is required to file numerous reports with different administrative bodies. As such, ComRes may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, ComRes reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either ComRes or any company affiliated with ComRes. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, ComRes may disclose personally identifiable information.
13. TECHNICAL SUPPORT. ComRes provides technical support to Customers via chat room, telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.
14. BREACH. In the event of Customer's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse ComRes for all attorney, court, collection and other costs incurred by ComRes in the enforcement of ComRes ’s rights hereunder and ComRes may keep any deposits or other payments made by Customer.
15. INDEMNIFICATION. Customer agrees to defend, indemnify and hold ComRes, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
16. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). ComRes shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, hurricane, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers, acts of terrorism or other difficulties outside of ComRes’ control that may occur in spite of ComRes’ best efforts.
17. GOVERNING LAW / RESOLUTION OF DISPUTES.
17.1. Mandatory Arbitration. Any dispute or claim between Customer and ComRes arising out of or relating to the Service or Equipment 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 . The arbitration shall take place in Miami, Florida 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.
17.2. Governing Law. The Agreement and the relationship between you and ComRes shall be governed by the laws of the State of Florida, USA 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. Customer and ComRes agree to submit to the personal and exclusive jurisdiction of the courts within the state of Florida, USA, to the extent possible in Fort Lauderdale, Florida, and waive any objection as to venue or inconvenient forum. The failure of ComRes 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. Customer agrees 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.
18. NON-COMRES SERVICES. The Customer is responsible for disconnecting and local, long distance or Internet services and for any resulting Early Termination Penalties. ComRes shall not be responsible for any charges incurred by the Customer from their current providers.
19. UNDELIVERABILITY OF SERVICE. During the term of this agreement, should ComRes be unable to deliver the services purchased by the Customer due to (i) ComRes’ ability to provision the services purchased, (ii) changes to ComRes’ underlying service costs, (iii) failure by underlying carriers to support the services purchased; ComRes shall notify the Customer of this event and allow the Customer to be released from any term agreement without penalty. In this event, ComRes shall assist the Customer in any way to move their services to another carrier that ComRes represents. ComRes shall make every effort possible to ensure such transition happens promptly to ensure continuity of the Customer’s service. The Customer shall be responsible for payment of all monthly recurring and usage charges for service until service is transferred to another carrier.
20. ENTIRE AGREEMENT. The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of ComRes and Customer.ver 3.2.02
