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Terms Of Service
These Terms of Service constitute the agreement ("Agreement") between Vonics Digital Inc. (or, for Customers subscribing to services in Canada, Vonics Canada Corp.) ("we," "us" or "Vonics") and the user ("you," "user" or "Customer") of Vonics Digital's enhanced Residential communications services or enhanced Small Business communications services and any related products or services ("Service"). This Agreement administers both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service. Upon activation of the Service, you are accepting that you are of legal age to enter this Agreement and that you have read and understood all of the terms and conditions of this Agreement. You agree with these terms and conditions and become bound by its terms. When you purchase any Equipment from a Vonics Digital retail dealer, you are deemed a "Retail Customer" and you will be governed by certain Retail Customer terms and conditions discussed below. 1. SERVICE 1.1 Term Service is offered on a monthly basis. Each month a term will begin on the date that Vonics Digital activates your Service and will end on the day before the same date in the following month. Subsequent terms of this Agreement will be automatically renewed on a monthly basis without requiring a further action by you. To end the term, you will be required to give Vonics Digital a written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice was given. Vonics Digital Service is purchased for full monthly terms, which means that if you decide to terminate the Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately becomes due and payable. Customer will pay all the unpaid, accrued charges due in relation to the Agreement even if the term has expired or the Service has terminated. 1.2 Lawful Use of Service and Device 1.2.1 Prohibited Uses Customer agrees to use the Service and Device only for lawful purposes. You are agreeing not to use the Service and Device for transmitting or receiving any kind of communication or material when in Vonics Digital'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, giving rise to a civil liability, or otherwise violate any applicable local, state, national or international laws. If Vonics Digital believes that you have violated the above restrictions, it reserves the right to terminate your service immediately without advance notice, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at Vonics Digital's discretion be immediately charged to your credit card. You are liable for any use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you. If Vonics Digital, in its sole discretion believes that you have violated the above restrictions, Vonics Digital may forward the objectionable material, as well as your communications with Vonics Digital and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding. 1.3.1 Residential Use of Service and Device Upon subscribing to Vonics Digital's Residential services, the Service and Device are provided to you as a residential user for your personal, residential, non-business and non-professional use. This means that you are not using the Service and Device for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. You are also not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Vonics Digital in advance. Vonics Digital reserves the right to immediately terminate or modify the Service, if Vonics Digital determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay Vonics Digital's higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. 1.3.2 Small Business Use of Service and Device - Prohibition on Resale If you have subscribed to Vonics Digital's Small Business services, the Service and Device are provided to you as a small business user. You are not to resell or transfer the service or device to any other person for any purpose, without getting an express written permission from Vonics Digital in advance. You agree that the Vonics Digital Small Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. Vonics Digital reserves the right to immediately terminate or modify the Service, if Vonics Digital determines, in its sole discretion, that Customer's Service is being used for any of the aforesaid activities. 1.3.3 Use of Service and Device by Customers Outside the United States Vonics Digital presently offering Services to customers located in other countries of the world . If you are moving the Device to a country other than the United States or Canada and use the Service from there, you do so at your own sole risk. Such activity might violate local laws in the country where you do so. You are liable for any such use of the Service and/or Device by yourself or any other person making use of the Service or Device provided to you and agree to indemnify and hold harmless Vonics Digital against any and all liability for any such use. Should the removal from the United States or Canada of the Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless Vonics Digital against any and all liability for such violation. If you are using the Service and Device outside the United States or Canada, Vonics Digital reserves the right to terminate your Service immediately and without advance notice. 1.4 Tampering with the Device or Service You agree not to perform a factory reset of the Device and not to change the electronic serial number or equipment identifier of the Device without express permission from Vonics Digital in each instance which Vonics Digital may deny in its sole discretion. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose. If you tamper with the Device, Vonics Digital reserves the right to terminate your Service, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. 1.5 Return of Device You can return the Device to Vonics Digital within fourteen (14) days of the termination of Service to receive a credit for the $39.99 disconnect fee (refer to section 4.3 of this document regarding termination fees), provided: (i) you return proof of purchase and original packaging with the Device; (ii) all parts, accessories, documentation and packaging materials are returned; (iii) contents are in original condition and undamaged, reasonable wear and tear excluded; and (iv) the equipment is returned with a valid return authorization number obtained from Vonics Digital's customer care department. You are responsible for the cost and risk of return shipping of equipment. If you receive the Device that is visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. In such a case, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact Vonics Digital's customer care department immediately. To obtain a return authorization number, you must contact customercare@vonics.com or 1877-774-2470. 1.6 Ownership and Risk of Loss You will be the owner of the Device and you will bear all the risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to Section 1.5 and has been received by Vonics Digital. 1.7 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by Vonics Digital It is acknowledgeable and understood that the Vonics Digital Service does not function in the event of power failure. The Service requires a fully functional broadband connection to the Internet (which is not provided by Vonics Digital). 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. 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 Vonics Digital terminate the Service in accordance with this Agreement. You might be required to reset or reconfigure equipment prior to utilizing the Service in case of a power failure or disruption. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 911 calling feature. Should Vonics Digital suspend or terminate your Service, the Service will not function until such time as Vonics Digital restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement). 1.8 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 Vonics Digital's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. 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. Nothing in this Agreement shall grant you the right or license to use any of the corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Vonics Digital. These shall remain the exclusive property of Vonics Digital. You also acknowledge that the Device is exclusively for use in connection with the Service and that Vonics Digital will not be providing with 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 Vonics Digital, which Vonics Digital 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 Vonics Digital against any and all liability arising out of your use of such interface device with the Service. You will not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software. 1.9 Service Distinctions You acknowledge and understand that this Service is not a telephone service and that there are some important distinctions between the telephone service and Service that is provided by Vonics Digital. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies. 1.10 Theft of Service If the Device is stolen or if you find out that your Service is being fraudulently used or stolen by someone, you need to notify Vonics Digital immediately. You can do this in writing or by calling the Vonics Digital customer support line. You must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service when reporting to Vonics Digital. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until Vonics Digital receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service. 1.11 No 0+ Calling; May Not Support x11 Calling Vonics Digital's Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling). Vonics Digital's Service may not support 311, 511 and/or other x11 (other than 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas. 1.12 Number Transfer on Service Termination Upon termination of the Service, Vonics Digital may release a telephone number that was ported in from a previous service provider to Vonics Digital by you and used in connection with your Service provisioned by Vonics Digital 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 Vonics Digital account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account. 2. EMERGENCY SERVICES- DIALING 911 2.1 Description of 911-Type Dialing Capabilities - Activation Required Vonics Digital offers a 911-type dialing service in the U.S. (but may not offer such service in Canada) that is different in a number of important ways from the traditional 911 service. You acknowledge and understand that 911-type dialing is NOT automatic, therefore, you must first successfully activate the 911 dialing feature by following the instructions from the "Dial 911" link on your dashboard. You cannot dial 911 from this line before receiving a confirming email. Once you receive a confirming email that 911 dialing has been successfully activated, you may dial 911 as needed. When you dial 911, your call is routed from the Vonics Digital network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. When you dial 911 from your Vonics Digital equipment, you will be routed to the general telephone number for the PSAP or local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are supposed to receive incoming 911 calls using traditional 911 dialing. Vonics Digital depends on third parties for the forwarding of information underlying such routing. For this reason, Vonics Digital and its third party provider(s) disclaim any and all liability or responsibility in the event if such information or routing is incorrect. The 911-type dialing currently is NOT the same as traditional 911 or E911 dialing and does not necessarily include all of the capabilities of traditional 911 dialing at this time. Neither Vonics Digital nor its officers or employees may be held liable for any claim, damage, or loss arising from or relating to 911 dialing unless it is proven that the damage or loss occurred due to the gross negligence, recklessness, or intentional misconduct on the part of Vonics Digital. You agree to indemnify and hold harmless Vonics Digital and its third party provider from any claim or action arising out of misroutes of 911 calls, including but not limited to your failure to follow correct activation procedures for 911 calling or your provision to Vonics Digital of incorrect information in connection therewith. 2.2 Non-Availability of Traditional 911 or E911 Dialing Service Vonics Digital' Service does NOT support traditional 911 or E911 access to emergency services. Vonics Digital does offer a limited 911-type service available only on Vonics Digital Devices, but you acknowledge and understand that 911-type dialing is NOT automatic. You will be required to take some steps, as described in this Agreement and on Vonics Digital's website, to activate such 911-type dialing capabilities. It should be understood that Vonics Digital 911 dialing cannot be used in combination with a Vonics Digital Soft Phone application and is only available on Vonics Digital-certified Devices or Equipment. You agree to inform the non-availability of traditional 911 or E911 dialing from your Vonics Digital Service and Device(s) to all of your household residents, guests and other people who may be present at the physical location where you utilize the Service. If you activate Vonics Digital 911-type dialing service, you agree to inform all of your household residents, guests and other people who may be present at the physical location where you utilize the Service as to the important differences and limitations of Vonics Digital 911 dialing service as compared with traditional 911 or E911 dialing that are set forth in this Agreement. 2.3 911 Dialing Requires Activation You acknowledge and understand that 911 dialing does not function unless you have successfully activated the 911dialing feature by following the instructions from the "Dial 911" link on your dashboard. That activation will be confirmed when you receive a confirming email. You acknowledge that you cannot dial 911 from this line until you have received a confirming email. 2.4 Requires Re-Activation if You Move or Change Location You agree that 911 dialing will not function properly or at all if you change the physical location of your Vonics Digital Device to a different street address, unless you have successfully activated the 911 dialing feature by following the instructions from the "Dial 911" link on your dashboard, and a confirming email was sent to you, which confirmed the activation. 911 dialing must be re-activated although you may have activated 911 dialing using your former address. You must separately activate 911 dialing for any new physical address. If the new current and correct physical address of your Vonics Digital equipment is not provided, it will result in any 911 dialing you may make being routed to the incorrect local emergency service provider 2.5 Failure to Designate the Correct Physical Address When Activating 911 Dialing Current and correct physical address and location of your Vonics Digital equipment should be provided by following the instructions from the "Dial 911" link on your dashboard. This address must be the actual physical street address. It cannot be a post office box or a mail drop address. Failure to do so will result in any 911 communication you may make being routed to the incorrect local emergency service provider should be provided. 2.6 Automated Number Identification You understand that Public Safety Answering Point (PSAP) and emergency personnel may or may not be able to identify your phone number. They might not be able to call you back if the call is not completed, is dropped or disconnected, or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement. It may not be possible for the PSAP and the local emergency personnel to identify your phone number when you dial 911 at this time in the technical development of Vonics Digital 911 dialing. Vonics Digital's system is configured in most instances to send the automated number identification information; however, one or more telephone companies, not Vonics Digital, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. 2.7 Requires Re-Activation if You Change Your Number or Add or Port New Numbers You acknowledge and understand that 911 dialing will not function if you change your phone number or if you add or port new numbers to your account, unless and until you have successfully activated the 911 dialing feature for your changed, newly added or newly ported number. You can do this by following the instructions from the "Dial 911" link on your dashboard. You should then receive a confirmation email, which confirms your activation. You must separately activate 911 dialing for any changed or newly added or ported number even though you have activated 911 dialing with your former Vonics Digital phone number. 2.8 Automated Location Identification At this time, when you dial 911, it is not possible to transmit identification of the address that you have listed to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you dial 911. You will need to state the nature of your emergency promptly and clearly. You understand that you will also be required to include your location, as PSAP and emergency personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to locate your location if the call is not completed, is dropped or disconnected, if you are unable to speak to tell them your location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement. 2.9 Service Outage 2.9.1 Power Failure or Disruption You acknowledge and understand that 911 dialing does not function in the event of a power failure or disruption. In case of a power failure, 911 dialing will not function until the power is restored. Any kind of interruption in the power supply can cause a power failure. Customer might be required to reset or reconfigure equipment prior to utilizing the Service or 911 dialing in case of a power failure or disruption. 2.9.2 Limitation of Liability and Indemnification You acknowledge and understand that Vonics Digital's liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this document. You agree to defend, indemnify, and hold harmless Vonics Digital, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service relating to the absence, failure or outage of the Service, including 911 dialing and/or inability of Customer or any third person or party or user of Customer's Service to be able to dial 911 or to access emergency service personnel. 2.9.3 Service Outage Due to Suspension of Your Account You acknowledge that your services will outage due to the suspension of your account. The suspension can occur because of the billing issues and it will prevent ALL Service, which includes 911 dialing as well. 2.9.4 Broadband Service / ISP Outage or Termination / Suspension or Termination by Vonics Digital You acknowledge and understand that the suspension or termination of service by your broadband provider or ISP or by Vonics Digital will prevent ALL Service including 911 dialing. 2.9.5 Other Service Outages You acknowledge and understand that there could be a service outage for ANY reason. Such outages can occur due to many reasons, including, but not limited to those reasons described elsewhere in this Agreement. Such an outage will prevent ALL Service, including 911 dialing. 2.10 Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911 You understand that there is a greater possibility of network congestion or reduced speed in the routing of a 911 communication made through your Vonics Digital equipment as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that 911 dialing from your Vonics Digital equipment will be routed to the general telephone number for the local emergency service provider which may not be answered after the business hours, and will not be routed to the 911 dispatcher(s) who are supposed to receive incoming 911 calls at such local provider's facilities. Also, the general telephone number for the local emergency service provider will produce a busy signal and could take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls. You acknowledge and accept that Vonics Digital relies on third parties for the forwarding of information underlying such routing, and accordingly Vonics Digital and its third party provider(s) disclaim any liability or responsibility if any such information routing is false. You agree that Vonics Digital, its officers or its employees, may not be held liable for any claim, damage, or loss. You hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately which caused the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Vonics Digital. 2.11 Alternative 911 Arrangements You should always have an alternative means of accessing traditional E911 services. You understand that Vonics Digital does not offer primary line or lifeline services. 3. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION 3.1 Limitation of Liability You accept that Vonics Digital shall not be held liable for any delay or failure to provide the Service, which includes 911 dialing, or any interruption or degradation of voice quality that is caused due to any of the following reasons: 1) service, equipment, network or facility failure caused by the loss of power to Customer; 2) equipment, network or facility shortage; 3) equipment, network or facility failure; 4) outage of Customer's ISP or broadband service provider; 5) equipment, network or facility upgrade or modification; 6) force major events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions; 7) act or omission of an underlying carrier, service provider, vendor or other third party; 8) equipment or facility relocation; 9) act or omission of Customer or any person using the Service or Device provided to Customer; or 10) any other cause that is beyond Vonics Digital'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. Vonics Digital's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Vonics Digital's performance or nonperformance hereunder or (iii) any Vonics Digital act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period. 3.2 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 will assure that your use or the 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. A "User" is any person, whether authorized or unauthorized, using the Service and/or Device provided to you. If Vonics Digital observes that such use or content does not conform with the requirements set forth in this Agreement or interferes with Vonics Digital's ability to provide Services to you or others, it reserves the right to terminate or suspend the affected Services, and it could remove your or Users' content from the Services. Also, if Vonics Digital receives some notice from anyone that your or Users' use or Content is violating any laws or regulations, Vonics Digital can terminate or suspend the affected Services, and/or remove your or Users' content from the Services. Vonics Digital's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold Vonics Digital 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. 3.3 Disclaimer of Damages SHALL Vonics Digital, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE IN ANY EVENT 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 Vonics Digital WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. 3.4 No Third Party Beneficiaries In this Agreement, no provision 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. 3.5 No Warranties, or Limited Warranties, for Devices If the new Device received by the Customer included a limited warranty at the time of receipt, the Customer must refer to the separate limited warranty document which is provided with the Device for information on the limitation and disclaimer of certain warranties. The remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. In case the Customer's Device did not include a limited warranty from Vonics Digital at the time of receipt, the Customer then agrees to accept its Device "as is". The Customer is not entitled to replacement or refund in the event of any defect, except that for Retail Customers only, Vonics Digital will provide a limited warranty on the Device as to manufacturing defects only for a period of one year starting from the date of when it was purchased. This Retail Customer limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply toany defect caused by damage in transit, retailer handling or Retail Customer handling. In case if there is any breach of this Retail Customer limited warranty, then the Retail Customer's sole remedy is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 1.5. Retail Customer must include a letter with the returned Device which states that the Retail Customer is returning the Device for warranty repair or replacement. The letter should also include the nature of the defect. This Retail Customer limited warranty shall also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein... OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, Vonics Digital MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. 3.6 Indemnification The Customer agrees to indemnify and hold Vonics Digital, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer harmless in connection with this Agreement or the Service, from any kind of 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 the user of the Customer's Service, relating to this Agreement, the Services, including 911 dialing, or the Device. This paragraph shall survive termination of this Agreement. 3.7 No Warranties on Service Vonics Digital makes no express or implied warranties, 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 rising by usage of trade, course of performance, course of dealing, or any other warranty related to the service that it will meet the Customer's requirement. There is no warranty by Vonics Digital that the service will be without any delay, failure, interruption, or any error, degradation of the quality of voice or loss of content, data or other information. NEITHER Vonics Digital NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO Vonics Digital'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 Vonics Digital's OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY Vonics Digital OR Vonics Digital'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. 4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION 4.1 Billing Customers are required to give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by Vonics Digital) when the Service is activated. Vonics Digital reserves the right to stop accepting credit cards from one or more issuers. You are required to inform Vonics Digital immediately if your credit card expires, or you decide to close your account, your billing address is changed, or the card is cancelled and replaced owing to loss or theft. Vonics Digital will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Vonics Digital decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. Vonics Digital reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found which can be found on Vonics Digital's website. 4.2 Payment Payments only made by credit cards are accepted by Vonics Digital as set forth in Section 4.1. Vonics Digital is authorized by your initial use of the Service to charge the credit card account number on file with Vonics Digital, which includes any changed information provided to Vonics Digital if the card expires or if it is replaced, or if you substitute a different card, for Vonics Digital charges as set forth in Section 4.1. This authorization will remain valid until 30 days after Vonics Digital receives your written notice terminating Vonics Digital's authority to charge your credit card. Vonics Digital will charge you the disconnect fee and any other outstanding charges and then terminate the Service. Vonics Digital reserves the right to terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Vonics Digital is declined or reversed, your credit card expires and you have not provided Vonics Digital with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to Vonics Digital for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by Vonics Digital in collecting such amounts, such as (but not limited to) collection costs and attorney's fees. 4.3 Disconnect Fee Upon termination of Service, which could be for any reason, the Customer will be charged a disconnect fee of $39.99 per voice line. This fee will be billed directly to Customer's credit card. The disconnect fee becomes due and payable immediately upon termination. In case the Customer has multiple lines, Customer will be charged a disconnect fee of $39.99 per line for each line disconnected. In order to receive a credit for the disconnect fee, Customer is required to return the Device(s) undamaged and in original condition within fourteen (14) days of termination. The Customer will not receive any credit if the Device(s) is damaged or not in its original condition as received by the Customer or if Customer has otherwise failed to comply fully with the requirements of Section 1.5. In the event Customer disconnects multiple lines, Vonics Digital will issue Customer a credit for all disconnect fees upon receipt of all Devices (including without limitation Multimedia Terminal Adapters) in accordance with this Section and Section 1.5. You will be charged a disconnection fee of $39.99 per line if your service is disconnected, subject to state and local laws. If we disconnect your service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection agency fees, reasonable attorneys' fees, and arbitration or court costs. 4.4 Billing Disputes Customer is required to notify Vonics Digital within 7 days in writing after receiving credit card statement if Customer disputes any Vonics Digital charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Customer Care Billing Department Vonics Digital Inc. 140 Second Street, Second Floor San Francisco, CA 94105 Or customercare@vonics.com Or 1877-774-2470 4.5 Payphone Charges You agree that Vonics Digital is entitled to recover from you any charges imposed on Vonics Digital by payphone owners or operators, either directly or indirectly through Vonics Digital's suppliers in connection with toll free calls made to your number, or any charges imposed on Vonics Digital by its suppliers to recover such costs if you make use of Vonics Digital's Toll Free Plus feature or any toll free feature that may be offered by Vonics Digital in the future. Vonics Digital is entitled to recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as Vonics Digital deems appropriate for the recovery of these costs. 4.6 Termination/Discontinuance of Service Vonics Digital reserves the right to suspend or discontinue the Service it is providing generally, or to terminate your Service at any time in its sole discretion. Customer will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges if Vonics Digital discontinues providing the Service generally, or terminates its Service in its discretion without a stated reason. If the reason for the termination of Service is stated, including without limitation violation of this Agreement, or because of any improper use of the Service or Device such as your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Vonics Digital or of a third party provider to which Vonics Digital is subject, you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee, all of which immediately become due and payable. 4.7 Money Back Guarantee; Limitations and Conditions Vonics Digital offers a 14-day Money Back Guarantee (30 days for Retail Customers; see offer details in advertising or online content of the retailer from whom Retail Customer purchased Equipment for the applicable time period) (such 14, or 30, the "Warranty Period"), applicable only to User's first-ordered line per account. It is not applicable to additional lines or secondary lines. Under terms of this Money Back Guarantee, Vonics Digital refunds the activation fee, first month of service, and shipping charges and waives the disconnect fee, if the terms which are described below are satisfied. Federal excise taxes and any other applicable taxes cannot be refunded. Vonics Digital reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice. In order to be entitled to this Money Back Guarantee, User (i) must cancel service within the number of days in the Warranty Period after the account activation; (ii) must not have exceeded 250 minutes of usage (500 minutes for Retail Customers); and (ii) must return all Devices within 14 days after cancellation pursuant to Sections 1.5 and 4.3. User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User had subscribed, international usage (including the charges described in Section 4.9), payphone calls to Vonics Digital toll free numbers and directory assistance. The money back guarantee does not apply to the accounts which exceed 250 minutes (500 minutes for Retail Customers) of usage. Also, these accounts will not be eligible for any kind of refund of any of the charges described here. All the Devices that the Customers return back to Vonics Digital must be in their original packaging with the UPC or bar code intact with every component that came with the device, manuals and registration card(s). Equipment must be returned with a valid return authorization number obtained from Vonics Digital customer care. User is responsible for the cost and risk of return shippingof equipment. THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS. To obtain a return authorization number, User must contact customercare@vonics.com or 1877-774-2470. We have the right to disconnect or revoke our 30 day money back guarantee for all customers at any time, without prior notice. No Credit Allowances or Refunds for Prepaid Service Plan Customers. Subject to our money back guarantee and law, we will neither credit nor refund any service fees or any other amounts you pay for any prepaid service plans. 4.8 Taxes In addition to the payment for the Service and Device, you will also have to pay any federal, provincial, state, municipal, local, or other governmental sales including use, excise, value-added, personal property, public utility or other taxes, and fees and charges that are either now in force or passed in the future. These charges could arise from or as a result of your subscription or use or payment for the Service or a Device. These amounts will also be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide Vonics Digital with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date Vonics Digital receives such certificate. 4.9 Charges for Directory Calls For each call that is made to Vonics Digital directory assistance, you will be charged 99 cents for it by Vonics Digital. 5. CHANGES TO THIS AGREEMENT Vonics Digital reserves the right to change the terms and conditions discussed in this Agreement from time to time. Notices will be considered given and effective on the date posted on to the "Service Announcements" section of Vonics Digital's website (currently located at https://www.vonics.com/vonics/features_terms_service.php). These changes made will become binding on Customer, on the date posted to the Vonics Digital website. After that no further notice by Vonics Digital will be required. When the new Agreement will be posted, it will surpass all the previously agreed terms of service in electronic and written, including without limitation any terms included with the packaging of the Device and it will also surpass any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms that will be enclosed within the packaging of the Device.. 6. GOVERNING LAW / RESOLUTION OF DISPUTES 6.1 Entire Agreement The rates for Vonics Digital Service, which can be found on Vonics Digital website and this Agreement This Agreement and the rates for Services found on Vonics Digital's website form this entire agreement between Vonics Digital and you and govern your use of the Service. This agreement will override any prior agreements between you and Vonics Digital and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. It is clear that any modifications made to this Agreement shall not be binding upon Vonics Digital unless and until posted in accordance with Section 3 hereof. 6.2 Mandatory Arbitration In a situation where any dispute or claim arise between the Customer and Vonics Digital, which is related to the Service or Device provided in connection with this Agreement, it shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (or, for Customers subscribing to service in Canada, a Canadian arbitration organization of Vonics Digital's choosing). The arbitration will be taking place in San Francisco, California. It will be conducted in English. The arbitrator's decision shall be final and will be binding on both the parties and it will follow the plain meaning of the relevant documents. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL. 6.3 Severability If any part of this Agreement is declared legally void or is unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. 6.4 Governing Law The Agreement and the relationship between you and Vonics Digital shall be governed by the laws of the State of California. For the Customers who are subscribing to Service in Canada, the Canadian Law will be applicable. This will be without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and Vonics Digital agree to submit to the personal and exclusive jurisdiction of the courts located within the state of San Francisco and waive any objection as to venue or inconvenient forum. The failure of Vonics Digital to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. 7. PRIVACY Vonics Digital will not be held liable for any lack of privacy which may occur with regard to the Service. Vonics Digital Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Please refer to our Privacy Policy applicable to you at https://www.vonics.com/vonics for additional information.
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