SERVICE TERMS AND CONDITIONS
SIGNING UP FOR VOIPx3’S SERVICE CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER, (3) YOUR USE OF THE SERVICE DESCRIBED HEREIN. THROUGH THESE ACTIONS YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
These Service Terms and Conditions, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between VOIPx3, Inc., a Texas corporation (hereinafter referred to as “we,” “us” or “VOIPx3”) and the party set forth in the related registration order form (herein after referred to as “you,” “user” or “Customer”) regarding VOIPx3’s Service (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “VOIPx3” includes our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.
Capitalized terms not explained are defined in Attachment A.
3. REVISIONS TO TERMS AND PRICING
From time to time, VOIPx3 may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing for the Service. Changes or revisions to the Agreement will be deemed effective upon posting said revision(s) to the VOIPx3 website. If you do not agree to the revision(s), you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions.
4. CUSTOMER REPRESENTATIONS
You represent and warrant that your primary residence or business address is in the United States. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that VOIPx3 relies on the information you supply and that providing false or incorrect information may result in Service provisioning and delivery delays, the suspension or termination of your Service and the inability of a 911-dialed call to be correctly routed to emergency service personnel, as further explained below. You agree to promptly notify VOIPx3 whenever your personal or billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and credit card number and expiration date). You agree to be financially responsible for your use of the Service as well as for use of your account by others.
5. USE OF SERVICE AND DEVICE
A. Business Accounts
Service is provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Service Account to any other person for any purpose or make any charge for the use of the Service, without express written permission from VOIPx3 in advance. VOIPx3 reserves the right to immediately terminate, change or modify the Service if VOIPx3 determines, in its sole discretion, that you are using the Service for non-business or non-commercial use.
You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services.
C. Residential Plans
If you subscribe to our residential services, we provide you with the Service and the Device solely for residential use. VOIPx3 reserves the right to immediately terminate, change the calling plan or modify the Service if VOIPx3 determines, in its sole discretion, that you are using the Service for non-residential use.
D. User Responsibility
You agree that you are responsible for all use(s) related to your Service Account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that VOIPx3 will be sending you information, including passwords, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by VOIPx3 to authenticate customer calls and should not be shared.
E. Use of Service and Device by Customers Outside the United States
While VOIPx3 encourages use of the Service within the United States to other countries, VOIPx3 does not presently offer or support the Service to customers located in any countries other than the United States. VOIPx3’s Services are only for use by persons or entities whose primary residence or business address is in the United States. VOIPx3’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, VOIPx3 does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove the Device to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. You also agree to indemnify us for any claims, damages or expenses resulting from your use of the Services outside of the United States. VOIPx3 reserves the right to disconnect Services immediately if VOIPx3 determines, in its sole and absolute discretion, that you have used the Service or the Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you.
F. Account Ownership
The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with VOIPx3. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account. Subsequent changes to ownership must be supported by appropriate legal documentation. VOIPx3 shall not adjudicate ownership-related disputes, or any other internal business dispute. If VOIPx3 is unable to determine the valid owner of the account, VOIPx3 reserves the right to suspend or terminate the account and Services.
G. Unlimited Toll-Free Calling
Unlimited Toll-Free Calling is limited to calls to the United States and Canada only.
H. Excessive Use
Excessive use is defined by VOIPx3 as use that substantially exceeds the average volume or duration of calls, data or messages used by all other VOIPx3 Unlimited Plan customers using the same service, or attempting to originate or terminate multiple concurrent phone calls, faxes, or messages through any single line.
6. LOCAL NUMBER PORTABILITY
In the event you are transferring an existing phone number that currently is subscribed to another carrier, the following terms and conditions apply:
You hereby authorize VOIPx3 to process your order for the Service and to notify your local service provider of your decision to switch your local services to VOIPx3 and to transfer your telephone number and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by VOIPx3 or the third-party services provider will delay the porting of the number to VOIPx3. You acknowledge that the porting of your numbers is dependent upon the cooperation of you and third parties not under the control of VOIPx3. VOIPx3 shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
You agree and acknowledge that you must install and activate your Device prior to the date that the number switch becomes effective. You will be assigned a temporary telephone number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
VOIPx3 has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
D. Unauthorized Ports
You acknowledge and agree that telephone or facsimile numbers may be ported from your Services or your account due to acts or omissions of third parties, and it may be difficult or impossible for VOIPx3 to: (i) prevent such ports: (ii) retrieve numbers ported from your account; or (iii) port such numbers back into your account. VOIPx3 has no responsibility or liability due to unauthorized number ports.
E. Expedite Fee
Any modifications made to a port order prior to the port date will incur an expedite fee of $300.
7. SERVICE DISTINCTIONS
You acknowledge and understand that the Service is not a telephone service, and we provide it on a best effort basis. Important distinctions exist between telephone service and the enhanced Service offering provided by VOIPx3. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service.
A. EMERGENCY SERVICES - 911 DIALING
You acknowledge and understand that VOIP 911 dialing is different than traditional 911 service. See complete 911 disclosure posted on our Web site at www.VOIPx3.com. YOUR SERVICE WILL NOT BE ACTIVATED UNTIL VOIPx3 RECEIVES AN AFFIRMATIVE ACKNOWLEDGMENT THAT YOU HAVE READ AND UNDERSTOOD VOIPx3’S 911 DISCLOSURE AGREEMENT.
B. No 0+ or Operator Assisted Calling; May Not Support X11 Calling
You acknowledge and understand that the Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial-around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
C. No Directory Listing
The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
D. Incompatibility with Other Services
i. Non-Voice Equipment Limitations
You acknowledge and understand that the Service is not compatible with all non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. By accepting this Agreement, you waive any claim you may have against VOIPx3 for interference with or disruption of such systems due to the Service.
ii. Certain Broadband, Cable Modem, and Other Services
There may also be other services with which our Service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
E. Use Outside of the United States
As previously noted there are limitations with the Service’s access to 911. VOIPx3’s Service does not provide access to emergency services in any country outside of the United States. VOIPx3 disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
8. LENGTH OF SERVICE
A. Service Term
We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”), or the date we successfully process your payment, whichever is later. It is not the day you receive the Device you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order.
B. Automatic Renewal
VOIPx3 shall automatically renew the Service for the same term on your Subscription Date unless you cancel your Service before the end of the current service term. See “Termination of Service” Section
C. Our right to disconnect
You understand and agree that VOIPx3 has the right to suspend, terminate or disconnect any part of Your Service generally at any time if:
1) We determine or reasonably believe that You are violating, or violated, any applicable law;
2) We determine or reasonably believe that You materially breached this Agreement and/or the AUP;
3) We determine or reasonably believe that You used a fraudulent credit card to pay for the Services;
4) We determine or reasonably believe that You abused or harassed (verbally or otherwise) any VOIPx3 employee, contractor, agent or representative;
5) We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
6) You bring any legal action or proceeding against VOIPx3, or participate in any class action lawsuit against VOIPx3;
7) A petition in bankruptcy is filed by or against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over You or Your material assets;
8) We determine that such action is necessary to protect maintain, or improve the Services, to prevent fraud or misrepresentation, to protect VOIPx3, its customers or other third party VOIPx3 affiliates, or for any other good cause.
9) It is otherwise contemplated by this Agreement.
10) You fail to make payment to VOIPx3 or its affiliates for services provided to you.
All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
D. Termination of Service
In order to terminate the Service, contact our Customer Care Department, via email at service@VOIPx3.com or by calling 1-817-527-5440 prior to expiration of the current service term. Please refer to the VOIPx3 Cancellation Policy.
9. OWNERSHIP OF DEVICE
A. Ownership and Risk of Loss
You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices. Minimum Commitment Contracts for Services and Devices may include early termination fees. Returns of non-defective Devices outside of the initial 30 day money-back guarantee period will not be accepted. Refer to the Cancellation policy for more information.
B. Promotional Devices
Devices included in a service offering at no charge may be previously used equipment. Unless otherwise provided in a Minimum Commitment Contract, Devices not returned upon cancellation of the Service will be charged to the customer. See Cancellation policy for details.
C. Replacement of a Defective Device
Devices purchased from VOIPx3 will be covered by their respective factory warranties, if any, only. VOIPx3 does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact VOIPx3 at support@VOIPx3.com so that VOIPx3 may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to VOIPx3 at the address provided by VOIPx3 in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement will be sent to you in accordance with the factory warranty, if any. If an advance replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then VOIPx3 will charge you for the second device or for the missing parts. When returning equipment to us, send to: VOIPx3, P.O. Box 2469, Keller TX 76244-2469.
D. Receipt of damaged Devices
If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Customer Care Department immediately at support@VOIPx3.com for return instruction.
E. Tampering with the Device
You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
F. Prohibited Devices
You are prohibited from using the Services with any devices other than VOIPx3-approved devices received from us.
10. FEES AND CHARGES
A. Published Fees and Charges
These fees and charges may change from time to time (except pricing will not change during the term of a Minimum Commitment Contract). New pricing will be effective the next day following posting to our Web site and may be applied to renewals of existing services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, are subject to change from time to time and are applicable to ALL Customers regardless of a Minimum Commitment Contract.
B. Billing increments
All billing policies are defined by the specific package the customer chooses. Please refer to our Web site for exact billing policies.
Customer is responsible for, and shall pay any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide VOIPx3 with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date VOIPx3 receives such certificate.
D. Charges for Directory Calls (411)
We will charge you $1.50 for each call you make to VOIPx3 directory assistance.
E. Charges for Calls from Public Payphones
We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones
F. Activation Fee
One-time activation fees and any other installation fees that may apply are specified on the Web site and vary by product and plan chosen.
G. Regulatory Recovery Fee
A Regulatory Recovery Fee shall be charged monthly to offset costs incurred by VOIPx3 in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee may apply to every phone number assigned, including toll free and virtual numbers.
H. Reinstatement Fee
Reinstating any service deactivated for non-payment shall result in a reinstatement fee up to $25 per user extension on your Account.
I. Returned Check Fee.
VOIPx3 may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
J. Unprovisioned 911 Calls
For each billing cycle, if a subscriber places one or more calls but does not have a valid 911 address of file with VOIPx3, or has relocated a registered telephone to another location other than original installation address then each call will incur a charge of $150. For each call placed. These charges are non-negotiable, and you waive the right to dispute any valid charges.
K. Phone Number Changes
Phone number changes on account will incur a one-time $25 processing fee per phone number.
L. On-Site Support
Exclusive of initial installation, VOIPx3 will provide onsite support if remote support methods cannot remedy a service outage. If technical remedy is result of the VOIPx3 network or installation error, onsite service is provided at no charge. If remedy is result of problem not within VOIPx3’s control, a service fee of $125 per hour, with 1 hour minimum will be billed by VOIPx3 to Customer.
We will charge you for non usage-based charges in advance for each term of service. If you have selected a free trial offering, we will commence charging you for the Service at the expiration of the free trial period, unless we are notified of the contrary. When you subscribe to the Service, you must give us a valid email address and a payment method (credit card or ACH). We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. We bill monthly as “due immediately” usage-based charges and any other charges which we decide to bill as “due immediately”. Bills will be posted to the customer portal and emailed to the email address on record.
i. There is a no money back guarantee for any services unless specifically written in a special one time promotion. There are no pro-rated refunds for unused time or services.
ii. Accounts that are more than one (1) day delinquent in payment may be suspended until payment has been received. All accounts suspended for non-payment are subject to a $35 re-activation fee per User Seat on Customer Domain.
Refunds for Equipment or unused service are handled on a case by case basis. For questions, concerns or disputes please contact us at (817) 527-5440. Our mailing address is: VOIPx3, P.O. Box 2469, Keller, TX 76244
When you subscribe to the Service, you authorize us to collect payments via credit card or ACH withdrawal. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method. Please note, VOIPx3 does not accept payment in the form of paper check unless otherwise agreed upon.
Any accounts that go into collections status will be transferred to a collections agency and incur a $125 processing fee. You will remain liable to us for all charges under this agreement including, without limitation, any additional charges or fees such as interest, any charges due to insufficient credit, collection costs and attorney’s fees.
You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
F. Billing Disputes
You must notify VOIPx3 in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any VOIPx3 charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Customer is responsible for any disputed charges beyond 60 days from the date of that charge. Notification of all billing disputes shall be sent to the following address: billing@VOIPx3.com.
12. PRICING AND PAYMENT
A. Prices and Fees
VOIPx3 fees and charges for the Service are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay the applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, Adapter fees, Device charges, shipping and handling and other nonrecurring charges will be charged to your payment method on file. Recurring charges will be billed and automatically charged to your payment method on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 8.1.
B. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT
You agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. If your issuing bank automatically provides us with an updated credit card, you agree that we may charge this new credit card for all amounts due to us without additional notice or consent. You also agree to indemnify us for any claims, damages or expenses resulting from providing a debit card instead of a credit card. If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service until your account is paid in full.
C. Credit Balance Account
Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, international calls, toll free charges, Directory Assistance calls and taxes related to these calls are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to make additional calls until the balance is paid down. You can make payments to reduce your credit balance account at any time by contacting our Customer Service Department at 817-527-5440 or by email to support@VOIPx3.com. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the credit card on file.
D. Credit Terms
All Services provided to You and covered by the Agreement shall at all times be subject to credit approval or review by VOIPx3. You will provide such credit information or assurance as is requested by VOIPx3 at any time. VOIPx3, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
E. Discontinuation of Service for Nonpayment
The Service to you may be denied or discontinued without notice at any time in the event your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your credit card fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide VOIPx3 your new credit card information. If the credit card issue is not resolved within 48 hours, VOIPx3 will deactivate the Service. If your credit card is approved within 24 hours, your calling plan and billing cycle will remain unchanged. We reserve the right to modify the per minute calling plan at any time. You agree to pay all charges owed to VOIPx3, including but not limited to the reinstatement fee for reactivated services. In the event VOIPx3 utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
Pricing. VOIPx3 will offer pricing promotions that may include discounts on monthly service rates, devices and installation. Discounted pricing and fees offered in a promotion, may not be extended at the same rate after the initiation of services with us.
Devices. Unless purchased by customer per plan agreement will be charged to Customer if not returned upon cancellation of service. Devices provided in a service offering at no charge may be previously used equipment.
VOIPx3 may limit the number of promotions you may be eligible for in a given period.
Promotions may be cancelled by VOIPx3 at any time. See Cancellation Policy for details at www.voipx3.com/cp.
G. Cancellation Policy
VOIPx3 cancellation policies are outlined in the Cancellation Policy posted at our Web site at VOIPx3.com/CP and are incorporated into this policy with this reference. Your account is not “monitored” for inactivity and we do not assume that you wish to cancel if you have not used your account. All cancellation requests must be submitted in the form of an email ticket to tickets@VOIPx3.com or by calling our Customer Care Department at (817) 527-5440 and must be made prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective the day following posting to our Web site.
13. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION
i. VOIPx3 MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. VOIPx3 DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. VOIPx3 DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST VOIPx3 TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
ii. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF VOIPx3 SERVICE, INCLUDING INTERNATIONAL CALLING SERVICES.
B. LIMITATION OF LIABILITY
i. IN NO EVENT SHALL VOIPx3 BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL VOIPx3 BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO VOIPx3 OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND VOIPX3’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. VOIPx3 SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO VOIPx3’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 VOIPX3’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. VOIPx3’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL 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 VOIPx3 WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE VOIPx3 FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST VOIPx3 TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
14. INDEMNIFICATION AND WAIVER OF CLAIMS
i. 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, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS VOIPx3 AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS VOIPx3 FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Service or Device. You promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service and the Device.
16. MISCELLANEOUS LEGAL CONSIDERATIONS
A. Governing Law
This Agreement and the relationship between you and VOIPx3 shall be governed by the laws of Texas without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Texas and venue for any such claim shall be proper in the appropriate state or federal court located in Dallas County, Texas.
B. No Waiver of Rights
Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. VOIPx3 reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by VOIPx3 under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
C. No Third Party Beneficiaries
If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.
D. Entire Agreement
This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of VOIPx3’s websites constitute the entire agreement between you and VOIPx3 and govern your use of the Service, superseding any prior agreements between you and VOIPx3 and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or VOIPx3 unless they are agreed to in writing by both parties.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
17. DISPUTE RESOLUTION AND BINDING ARBITRATION
It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
VOIPx3 and you agree to arbitrate any and all disputes and claims between you and VOIPx3 except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and VOIPx3, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “VOIPx3,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and VOIPx3.
B. Informal Resolution of Disputes
Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the VOIPx3 Customer Service Department at (817) 527-5440 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
i. Formal Notice of Disputes - A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to VOIPx3 must be sent to VOIPx3, attention “General Counsel,” by certified mail addressed to P.O. Box 2469, Keller TX 76244-2469.
ii. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and VOIPx3 do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or VOIPx3 may commence an arbitration proceeding. The amount of any settlement offer made by you or VOIPx3 shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or VOIPx3 is entitled.
C. Arbitrator and Arbitral Rules
The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-972-702-8222, by email at AAAUniversity@adr.org, or by mail at 13727 Noel Rd, Suite 700, Dallas TX 75240. The arbitration shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement.
D. Waiver of Judge or Jury Trial
You and VOIPx3 agree that, by entering into this agreement, you and VOIPx3 are waiving the right to a trial by judge or jury.
E. Waiver of Class Actions
You and VOIPx3 agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and VOIPx3 agree that you and VOIPx3 may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and VOIPx3 agree that, unless you and VOIPx3 agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
F. Statute of Limitations
You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
G. Exceptions to Arbitration Agreement
Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices: (a) we may take our dispute to small claims court, if the contained dispute qua