Terms and Conditions
I. THE AGREEMENT
These Terms and Conditions constitute the agreement (the “Agreement”) between Voiceopia, Inc. (“Voiceopia”, us or we) and the user (“you,” “your, “user” or “Customer”) of the Voiceopia® residential and small business Voice over Internet Protocol (“VoIP”) communications services and any related products or services (“Service”). For purposes of the Agreement, “you” means the customer, defined as either (i) the person identified in Voiceopia’s account records as responsible for payment of all charges; or (ii) any other person with actual or apparent authority to represent that person or to use the Service(s).
BY ENROLLING IN, USING, OR PAYING FOR THE VOICEOPIA® SERVICES, YOU AGREE TO THE PRICES, CHARGES, TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE PRICES, CHARGES, TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES IMMEDIATELY BY CALLING VOICEOPIA AT THE TOLL FREE NUMBER ON THE FIRST PAGE OF YOUR INVOICE FOR FURTHER DIRECTIONS.
The Agreement governs the Service and any devices, such as the Analog Telephone Adapter or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understand, and you agree to, the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms.
Voiceopia may change the Terms and Conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted at www.Voiceopia.com. The Agreement posted supersedes all previously agreed to electronic and written Terms and Conditions.
The rates and charges for the Service, which may be found at www.Voiceopia.com, are effective as of May 1, 2004 and are subject to change. For your most current rates and charges, the most current version of the Agreement, or if you have questions about your Services, please visit our website at www.Voiceopia.com (see Rates and Terms & Conditions link) or call Voiceopia’s Customer Care Department at the toll-free number listed on the first page of your invoice.
II. VOICEOPIA EMERGENCY CALLING SERVICE & E911 SERVICE
Pursuant to the recent rulings by the Federal Communications Commission (“FCC”), Voiceopia is in the process of enabling E911 dialing services for all of its Voiceopia customers in areas in which the Public Safety Answering Point (or “PSAP”) is equipped to handle E911 calls. Voiceopia is undertaking this ongoing, nationwide effort through its third party provider. As the roll out of the E911 initiative progresses, increasing numbers of Voiceopia customers will have E911 service, where available. We encourage all customers to check their “My Account” section at the Voiceopia website to find out the progress of E911 capability for their registered location.
For those customers that signed up for Voiceopia® Services prior to November 28, 2005, Voiceopia will continue providing the Emergency Calling Service described below unless or until the E911 services are activated. For those customers that sign up for Voiceopia® Services after November 28, 2005, Voiceopia will confirm E911 capability prior to sign up. Regardless of when a Customer signs up for Voiceopia® Services, if the Services are used in a physical location different than the current location registered with Voiceopia (the “911 Service Address”), E911 service may or may not be available, and the 911 call will be routed to the wrong location. It is important that such Customers promptly update their location with Voiceopia in accordance with the instructions in Section II(D) below.
A. Non-Availability of Traditional 911 or E911 Dialing Service:
You acknowledge and understand that unless you have been specifically informed by Voiceopia that E911 service is available at your 911 Service Address (which can be confirmed on your “My Account” section at the Voiceopia website or by calling Voiceopia’s Customer Care Department), the Service will NOT support traditional 911 or E911 access to emergency services. In such cases, Voiceopia offers a limited Emergency Calling Service available only on Voiceopia Devices as described herein, but you acknowledge and understand that such Emergency Calling Service dialing is different in a number of important ways from traditional 911 services, as described below. Voiceopia Emergency Calling Service dialing is available only on Voiceopia-certified Devices or Equipment. You agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service (i.e., your 911 Service Address) as to the non-availability of traditional 911 or E911 dialing from your Voiceopia® Service and Device(s). If you activate Voiceopia Emergency Calling Service dialing, you agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service as to the important differences and limitations of Voiceopia Emergency Calling Service dialing as compared with traditional 911 or E911 dialing, as set forth in this Agreement.
B. Description of Emergency Calling Service-Type Dialing Capabilities – Activation Required
Voiceopia does offer an Emergency Calling Service that is different in a number of important ways from traditional 911 services or Voiceopia E911 services. For customers that do not have E911 capability, when you dial 911, your call is routed from the Voiceopia network to the Public Safety Answering Point (“PSAP”) or local emergency service personnel using the address that you provided to Voiceopia. You acknowledge and understand that when you dial 911 from your Voiceopia Equipment you will be routed to the general or administrative telephone number for the PSAP or local emergency service provider, and will not necessarily be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. Additionally, some PSAPs may from time to time refuse to accept calls from VoIP providers such as Voiceopia. As described herein, this Emergency Calling Service dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing.
C. Service Outage:
1. Power Outage
You acknowledge and understand that Emergency Calling Service and E911 Service dialing do not function without power. Should there be an interruption in the power supply, the Service and Emergency Calling Service (or E911 service) dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure Equipment before using the Service, Emergency Calling Service, or E911 service dialing.
2. Broadband Service Outage
You acknowledge and understand that service outages by your broadband provider will prevent, and that network congestion may slow, ALL Service including Emergency Calling Service and/or E911 service dialing.
3. Other Service Outages
You acknowledge and understand that if there is a Service outage for ANY reason, such outage will prevent ALL Service, including Emergency Calling Service and/or E911 service dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
4. Limitation of Liability and Indemnification
You acknowledge and understand that Voiceopia’s liability is limited for any Service outage and/or inability to dial Emergency Calling Service or E911 service from your line or to access emergency service personnel, as set forth in this document. You agree to defend, indemnify, and hold harmless Voiceopia, 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 (i) absence, failure or outage of the Service, including Emergency Calling Service or E911 dialing; and/or (ii) 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.
D. Failure to Designate the Correct Physical Address for E911 and/or Emergency Calling Service Dialing
The address which the Customer provides to Voiceopia is the address that is applied to your Service for both E911 and Emergency Calling Service dialing (also known as your “911 Service Address”). Should you need to change this address, you must change this on the “My Account” section at the Voiceopia website or contact Voiceopia Customer Service immediately to correct this address. It may take up to three business days to effectuate a change or update of your 911 Service Address. Failure to provide the current and correct physical address and location of your Voiceopia Equipment as your 911 Service Address may result in the loss of E911 capability and/or will result in any Emergency Calling Service communication you may make being routed to the wrong local emergency service provider.
E. Changing Your Primary Phone Number
You acknowledge and understand that if you change your primary Voiceopia phone number you will not be able to change your 911 Service Address for seventy-two (72) hours. During that time, any E911 or Emergency Calling Service calls that you may make will be routed using the 911 Service Address that was in Voiceopia’s records before you changed your phone number.
F. Change of Physical Location of Voiceopia Equipment
You acknowledge and understand that E911 and Emergency Calling Service dialing does not function properly or may not function at all if you take your Equipment with you away from the 911 Service Address or physical location that you have registered with Voiceopia.
G. Requires Re-Activation if You Move
You acknowledge and understand that E911 and Emergency Calling Service dialing will not function properly or at all if you move or change the physical location of your Voiceopia Equipment to a different street address, unless and until you have successfully changed your 911 Service Address on the “My Account” section at the Voiceopia website or contacted Voiceopia Customer Service to correct your 911 Service address. Failure to provide the current and correct physical address and location of your Voiceopia Equipment may result in the loss of E911 capability and/or will result in any Emergency Calling Service dialing you may make being routed to the incorrect local emergency service provider.
H. Possibility of Network Congestion and/or Reduced Speed for Routing Emergency Calling Service
You acknowledge and understand that there is a greater possibility of network congestion and/or reduced speed in the routing of an E911 or Emergency Calling Service communication made using your Voiceopia Equipment as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that Emergency Calling Service dialing from your Voiceopia Equipment will be routed to the general or administrative telephone number for the local emergency service provider, and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing. You acknowledge and understand that there may be a greater possibility that the general or administrative telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, or not answered at all, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
I. Automated Number Identification
For Voiceopia® Service customers without E911 service, it is not possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911 to access Emergency Calling Service dialing. Voiceopia’s system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they may not yet be technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may not be able to identify your phone number to return your call if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
J. Automated Location Identification
For Voiceopia® Service customers without E911 service, 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 use Emergency Calling Service dialing. You acknowledge and understand that you will need to state the nature of your emergency promptly and clearly, including your location, as PSAP personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to find your location if the call is unable to be 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.
K. Alternative Emergency Calling Service Arrangements
You acknowledge that Voiceopia does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional 911 or E911 services.
Service is offered on a monthly basis for a term that begins on the date that Voiceopia activates your account (the “Activation Date”) and ends on the day before the same date in the following month. The Activation Date will begin three days after you sign-up for the Service. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Voiceopia notice of non-renewal at least ten  days before the end of the monthly term in which the notice is given. All notices must be given by calling Voiceopia’s Customer Care Department at the toll-free number listed on the first page of your invoice. You are purchasing the Service for full monthly terms, meaning that if you terminate Service before 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 any applicable disconnect fee (as described below), all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
B. Disconnect Fee
If Customer subscribes to a residential or business calling plan, and cancels the Service for any reason or for convenience within thirty-six (36) months of the Activation Date. Customer will be charged a disconnect fee of $299.95 per account (the “Disconnect Fee”). The Disconnect Fee becomes due and payable immediately and will be billed directly to Customer’s credit card. If Customer has multiple accounts, Customer will be charged the Disconnect Fee of $299.95 per account for each account cancelled.
Business and residential customers will not be charged any disconnect fee for changing telephone numbers, while keeping the same number of lines.
Cancellations will only be accepted via phone through Voiceopia’s Customer Care Department at the toll-free number listed on the first page of your invoice, and will be effective upon the date that you call. Voiceopia is not able to schedule cancellations for a future date.
All returned Equipment must be in the original packaging with the UPC or bar code intact, and postmarked within fourteen (14) days of cancellation. All components, manuals and registration card(s) must be included and equipment must be in good condition, as determined by Voiceopia. Equipment must be returned with a valid return authorization number obtained from the Voiceopia Customer Care Department. Customer is responsible for return shipping of Equipment.
C. Upgrade or Downgrades
If at any time during the term of Service, Customer changes from one calling plan to another, Customer will be charged a one time Upgrade Fee or Downgrade Fee of $9.99.
D. Money Back Guarantee
Voiceopia offers a 30-day money back guarantee, applicable to one primary line per account, not additional or secondary lines. Under terms of the Money Back Guarantee, Voiceopia refunds the activation fee, first month of Service and waives the Disconnect Fee. Voiceopia reserves the right to terminate or revoke the Money Back Guarantee at any time, without prior notice.
Customer must cancel Service through Voiceopia’s Customer Care Department at the toll-free number listed on the first page of your invoice within thirty (30) days of the Activation Date. Cancellations will be effective on the date that you contact Voiceopia; Voiceopia is not able to schedule cancellation for a future date. Equipment must be returned to Voiceopia and postmarked within fourteen (14) days thereafter. Usage must not exceed 500 minutes within the first thirty (30) days of Service. Customer is responsible for any charges for overage, international traffic or directory assistance. Cancellation may take up to two (2) business days. Any usage after contacting Voiceopia is Customer’s responsibility. Accounts exceeding 500 minutes of usage are not eligible for refund. Customer may not port away a new phone number (or “DID”) if Customer cancels within thirty (30) days.
All returned Equipment must be in the original packaging with the UPC or bar code intact, and postmarked within fourteen (14) days of cancellation. All components, manuals and registration card(s) must be included and equipment must be in good condition, as determined by Voiceopia. Equipment must be returned with a valid return authorization number obtained from the Voiceopia Customer Care Department. Customer is responsible for return shipping of Equipment. The Money Back Guarantee will not be honored if Customer fails to meet all above requirements.
Customers who purchase Voiceopia approved Equipment from a retailer will not be charged an activation fee or Disconnect Fee. Customers who purchase Voiceopia approved Equipment from a retailer should not return said Equipment to Voiceopia when canceling Service and shall receive the Money Back Guarantee, upon meeting all other terms listed above.
E. The Voiceopia Referral Program.
The Voiceopia Refer-A-Friend program is intended for use by Voiceopia® Service customers to introduce their family and friends to the Voiceopia® Service. By referring individuals or small businesses and/or accepting the Referral Credit(s) described below, you agree to the following conditions. After the person or business you refer subscribes to the Service and enters your correct e-mail information either at signup or no later than three days (72 hours) after signup by contacting Voiceopia’s Customer Care Department at , you will be eligible for the twenty-five dollars ($25) or any other promotional credit available at the time of referral (“Referral Credit”) provided all terms and conditions for the Refer-A-Friend program are met. This offer applies only when the person or entity referred is a new Voiceopia customer (i.e., has never been a business or residential customer of Voiceopia) and may not be used in conjunction with any other offer or promotion, excluding the one (1) month free promotion currently on all calling plans. To qualify for the Referral Credits, both you and the person or entity you referred must (1) be customers in good standing; and (2) retain the Service for at least ninety-one (91) days after the referral’s Activation Date. If, within ninety-one (91) days of the referral’s Activation Date, either party cancels the Service, or if Voiceopia terminates either party’s Service under Section VI(B) below, this will result in the forfeiture of the Referral Credit described herein by both parties. Any unused portion of a Referral Credit will be applied to the following month’s invoice, provided, however, that if either party’s Voiceopia Services are cancelled or terminated at any time after the 91 day period described above, then any unused portion of the Referral Credit will be forfeited. Voiceopia Agents or subagents, Voiceopia affiliates, Voiceopia employees, employees at the call center supporting Voiceopia and employees of Voiceopia are not eligible for Referral Credits.
F. Residential Use of Service and Device
If you have subscribed to Voiceopia’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 them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, telecommuting, telemarketing, autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. This also means that you are 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 Voiceopia in advance. 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 Voiceopia’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. Voiceopia reserves the right to immediately terminate or modify the Service, if Voiceopia determines, in its sole discretion, that Customer’s Service is being used for non-residential or commercial use. Voiceopia deems the usage of 5,000 or more minutes per month in violation of this Section III(F), and shall subject Customer to the immediate suspension and/or termination of the Service.
G. Business Use of Service and Device
If you have subscribed to any of Voiceopia’s business plans, the Service and Device are provided to you as a small business user. This means that you are not to resell or transfer the Service or Device to any other person for any purpose. You agree that the Voiceopia business plan to which you have subscribed does not confer the right to use the Service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting. Voiceopia reserves the right to immediately terminate, modify or upgrade the Service (and charge you the Upgrade Fee described in Section III(C)), if Voiceopia determines, in its sole discretion, that Customer’s Service is being used in violation of this Section III(F). If you have a residential plan and are using the Services for business purposes, Voiceopia reserves the right to cancel the Service. Voiceopia deems the usage of 5,000 or more minutes per month in violation of this Section III(G), and shall subject Customer to the immediate suspension and/or termination of the Service.
H. Notice of Rate/Price Changes
Voiceopia may change the rates, prices and charges for the Services at anytime and such changes will be effective immediately. Such changes to rates, prices, charges, or terms or conditions in the Agreement will be reflected on www.Voiceopia.com and will be incorporated by reference into this Agreement. From time to time, Voiceopia may offer new rate plans and such rate plans may be available to customers upon request by contacting Customer Care. New rate plan request may take up to 3 business days to take effect and calls made prior to the new effective date will be charged at the previous plan rates.
I. Rounding Policy
For billing purposes, the length of each metered call is rounded as described in each Calling Plan. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent.
J. Calls to International Mobile Telephones; International Special Services Calls
Voiceopia’s advertised rates for international calls are generally the rates charged for calls to landline telephones. Some calls to international mobile telephones, or to international telephone numbers considered to be special services calls, are charged a different (usually higher) rate than calls to landline telephones. The rates you will be charged are set forth in the calling plan rate tables and are typically designated by a “MOB”, “cellular”, “mobile” or “M” notation.
K. Timing of Calls
Generally, timing of metered calls begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom Voiceopia must interconnect in order to terminate calls to foreign countries) designate a call as “answered” when the called party’s line rings or after a certain number of rings, and will charge Voiceopia for a completed call. In these situations, Voiceopia will charge for the call as if it were answered by the called party.
L. Use of Service and Device by Customers Outside the United States
Voiceopia does not presently offer or support the Service to customers located in other countries. If you remove the Device to a country other than the United States and use the Service from there, you do so at your own risk, including the risk that such activity violates local laws in the country where you do so. You are 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. Voiceopia reserves the right to cancel or suspend the Service if it is determined that the Service is being used outside the United States.
M. Loss of Service Due to Power Failure
The Service does not function without power. Should there be an interruption in the power supply, the Service will not function until power is restored. A power failure or disruption may require you to reset or reconfigure Equipment before using the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including the Emergency Calling Service calling feature.
N. 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 Customer in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on Voiceopia’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of Voiceopia are and shall remain the exclusive property of Voiceopia and nothing in this Agreement shall grant you the right to license or to use such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If you decide to use the Service through an interface Device not provided by Voiceopia, which Voiceopia reserves the right to prohibit in particular cases or generally, or are required to use third party software to enable the use of Voiceopia accessories, like softphone, you promise that you have acquired, and all times during your use, possess all of the required rights, including software and/or firmware licenses, to use that interface Device of third party software with the Service and you will indemnify and hold harmless Voiceopia against any and all liability arising out of your use of such interface Device of software with the Service or any of its accessories.
O. Tampering with the Device
You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Voiceopia. Voiceopia reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus any applicable Disconnect Fee, all of which immediately become due and payable.
P. Theft of Service
You agree to notify Voiceopia immediately, in writing, by electronic mail or by calling the Voiceopia customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or used fraudulently. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. 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. Notwithstanding anything herein to the contrary, credits will not be issued for charges resulting from fraud that arises out of third parties hacking into the Equipment, other equipment used by you or the internet. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of your internal/corporate procedures. Voiceopia will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your Service.
Q. Number Transfer on Service Termination
If you desire to cancel your Service and port it to another carrier, it is your responsibility to ensure that the number has successfully ported prior to canceling your account with Voiceopia. CANCELLATION OF YOUR VOICEOPIA ACCOUNT PRIOR TO CONFIRMATION FROM YOUR NEW PROVIDER THAT THE TELEPHONE NUMBER HAS SUCCESSFULLY PORTED SHALL RESULT IN AN INABILITY FOR VOICEOPIA TO PORT OUT YOUR NUMBER AND THE POTENTIAL LOSS OF YOUR NUMBER. FAILURE TO CANCEL YOUR ACCOUNT WITH VOICEOPIA AFTER SUCCESSFUL PORTING TO ANOTHER PROVIDER, SHALL RESULT IN CONTINUED MONTHLY CHARGES BY VOICEOPIA FOR WHICH YOU WILL REMAIN RESPONSIBLE.
Upon contact from your new provider that you desire to port your telephone number, Voiceopia will use reasonable efforts to release the telephone number that was ported to Voiceopia by you and used in connection with your Service provisioned by Voiceopia to your new service provider, if such new service provider is able to accept such number, and provided that your Voiceopia account is completely current including payment for all charges and applicable Disconnect Fees. Customer will not be able to port away the telephone number if Customer cancels within thirty (30) days of the Activation Date.
Customers are solely responsible for terminating or canceling accounts. Voiceopia will not automatically terminate or cancel an account upon the mere transfer (or porting) of a telephone number to a new service provider. Applicable charges will continue to accrue on all open accounts, and you will remain responsible for these charges until the account is properly cancelled.
R. Service Distinctions
You acknowledge and understand that the Service is not a telephone service. Important distinctions exist between telephone service and the enhanced Service offering provided by Voiceopia. The Service is subject to different regulatory treatment than phone service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
S. Collect Call and Operator Services
Voiceopia does not offer collect call or operator services via this Service.
T. International DIDs or phone numbers
Customers that have international (non-United States) direct inward dial phone numbers (“DIDs”) are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without notice and Voiceopia may be required to discontinue this Service, without notice. Voiceopia reserves the right to discontinue International DID services for any reason at any time and is only obligated to refund the pro-rated monthly fee.
U. International Services
1. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the end-to-end international service or facilities they provide, certain limitations or restrictions that may limit your ability use the Voiceopia® Services. You must conform to any limitations or restrictions imposed by the foreign carriers or agencies.
2. Foreign Carrier Acts or Omissions.
a. When other U.S. or foreign carriers and foreign telecommunications administrations use facilities to establish connections to points not reached by Voiceopia’s network, Voiceopia is not liable for acts or omissions of other carriers or foreign telecommunications administrations.
b. International calls are priced on the basis of the country and city codes dialed by you. When the facilities of other U.S. or foreign carriers are used in establishing connections to points not reached by Voiceopia’s network, Voiceopia is not liable for refunds or damages if those calls do not terminate in the country, city or area codes associated with the called number.
In addition to surcharges that may be found in the applicable Calling Plan, Voiceopia may adjust its rates and charges or impose additional rates and charges to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs (“Governmental Charges”). Examples of such Governmental Charges include, but are not limited to, Universal Service funding.
a. Federal Universal Service Fee: Voiceopia includes a Federal Universal Service Fee to each bill at the rate determined by the FCC. Federal Universal Service Fees are applicable to interstate and international (US origination) calls. The Universal Service Fee for the first quarter of 2009, the Universal Service Fee will be 9.5%.
1. All taxes, tax-like charges, and tax-related surcharges are referred to collectively as “Tax(es).” Voiceopia may elect to impose and collect such Taxes, unless otherwise constrained by court order or direction.
2. You agree to pay all Taxes imposed. If Voiceopia has collected Taxes and a challenged Tax is found to have been invalid and unenforceable, Voiceopia, in its sole discretion, will either reduce Service rates for a fixed period of time in the future in order to flow-through to customers an amount equivalent to the amounts collected, or it will credit or refund such amounts to affected customers (less its reasonable administrative costs), if the amounts collected were retained by Voiceopia or if they were delivered to the jurisdiction and returned to Voiceopia, or it will negotiate an arrangement with the jurisdiction to provide a future benefit for customers in that jurisdiction.
3. If you provide Voiceopia with a duly authorized tax exemption certificate, Voiceopia will exempt you in accordance with law, effective on the date Voiceopia receives the certificate.
IV. RESTRICTIONS ON THE USE OF SERVICE
A. Voiceopia offers its Services subject to availability of facilities, limitations of service offerings, and the provisions of this Agreement.
B. Services provided by Voiceopia under the Agreement will not be used: (1) for any unlawful purpose; (2) for making telephone calls that use automatic dialing devices and terminate into electronic information services, pay-per-call services, or other domestic or international audiotext services; (3) for international call-back offerings using uncompleted call signaling to any country, when that country has prohibited such an offering by statute or regulatory decision; or (4) for business usage under a residential Service plan.
C. Voiceopia may (1) deny, for any lawful reason, your request for Service, or (2) limit or allocate the facilities available to or used by any Service, if necessary, to manage its network in an efficient manner, meet reasonable Service expectations, furnish Service to existing and future customers based on forecasted customer requirements, or for any other lawful reason.
D. Voiceopia may, without notice (consistent with governing laws or regulations), block traffic to or from specific countries, country codes, cities, city codes, local telephone exchanges (“NXX exchanges”), individual telephone stations, groups or ranges of individual telephone stations, or calls using certain customer authorization codes, whenever Voiceopia deems it necessary to take such action to prevent (1) the unlawful use of Service; (2) nonpayment for Service; (3) the use of Service in violation of this Agreement; or (4) network blockage or the degradation of Service furnished to you or other customers.
V. PAYMENT OBLIGATIONS
A. You must provide Voiceopia with a valid credit card number when the Service is activated. If the credit card expires, you close your credit card account or your billing address changes, or the credit card is cancelled and replaced because of loss or theft, you must advise Voiceopia immediately. Voiceopia will invoice all charges on a monthly basis, in advance, to your credit card, including but not limited to: activation fees and monthly Service fees, advanced feature charges, Equipment purchases and shipping and handling charges. Any charges not included in your rate plan and any additional usage charges are billed after each billing period. If Voiceopia changes its rates, recurring monthly charges affected by such change will be assessed at the new rate for the full billing period during which the new recurring charge rate became effective.
B. Voiceopia may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Voiceopia is declined or reversed, your credit card expires and you have not provided Voiceopia 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 Voiceopia for all charges accrued before termination and for all costs incurred by Voiceopia in collecting such amounts, such as (but not limited to) collection costs and attorney’s fees.
C. You are responsible for payment of all charges for Services furnished to you and anyone authorized by you to use your Service. This responsibility is not changed by virtue of any use, misuse, or abuse of your Service undertaken or caused by third parties.
D. You must promptly notify Voiceopia of any change in your invoicing address or, if applicable, in the credit card or bank account used for payment. You should notify the Voiceopia Customer Care Department by e-mailing Voiceopia at the following address:
E. Voiceopia will invoice Customer for Services on a monthly basis in advance and all payments are due and payable by Customer without demand or setoff within thirty (30) days from the invoice date (the “Due Date”). Amounts not paid within twenty-nine (29) days of the invoice date will be considered past due. If you make any late payments, and we bill you for the Services, we will charge you a late fee of 1.5%, which we apply to that period’s charges and any outstanding charges and late payment charges that remain unpaid at the time of the next bill. If the state law where you receive the Voiceopia® Services requires a lower rate, we will apply that rate.
F. If Voiceopia becomes concerned at any time about your ability to pay for Services, Voiceopia may require that you pay its charges within a specified number of days and that you make such payments in cash or the equivalent of cash.
G. If Voiceopia hires a collection agency to collect, or attempt to collect, any charges owed Voiceopia, you will be liable to Voiceopia for an additional payment equal to 35% of the charges owed, where permitted by applicable law. If Voiceopia incurs any fees or expenses, including attorneys’ fees, in collecting, or attempting to collect, any charges owed Voiceopia other than by hiring a collection agency, you will be liable to Voiceopia for the payment of all such fees and expenses reasonably incurred.
H. If billing systems or other support is not available for a Service, feature, surcharge, tax or other charge element at the time of Service provision, Voiceopia will bill for that Service, feature, surcharge, or other charge element as soon as it is capable of doing so.
I. No Credit Allowances for Interruption of Service. You acknowledge and agree that the Service is provided “as is.” Credit allowances for interruption of Service, including international calling services, will not be provided.
J. If you dispute any charges, you must notify us in writing at or at the address below within 10 days of receiving your credit or debit card statement. If you do not notify us in writing in a timely manner, you agree to waive any right to contest such charges.
1510 Stuart Road
Cleveland, TN 37312
VI. CANCELLATION OF SERVICE
A. By the Customer
1. If you cancel your Service after the thirty (30) day Money-Back Guarantee period, described in section III(D) above, you will be charged a Disconnect Fee, pursuant to Section III(B) above.
2. If you cancel your Service with Voiceopia, you will not be able to use the Device or Equipment.
3. Cancellation may take up to two business days.
4. Your credit card will be charged for any usage after contacting Voiceopia to cancel your Service.
5. All cancellations must be made through Voiceopia’s Customer Care Department at the toll-free number listed on the first page of your invoice.
6. All cancellations will be effective on the date that you call Voiceopia’s Customer Care Department. Voiceopia does not have the ability to schedule a cancellation for a future date.
B. By Voiceopia
1. Voiceopia reserves the right to discontinue furnishing Services, cancel your account, and/or block your access to Voiceopia network, without incurring any liability, immediately and without notice if Voiceopia deems that such action is necessary to prevent or to protect against fraud or to otherwise protect Voiceopia’s personnel, agents, facilities, or Services. Without limitation, Voiceopia may take such actions if:
a. You refuse to furnish information or furnish false information that (i) is essential for billing; or (ii) pertains to your creditworthiness, your past or current use of common carrier communications service, or your planned use of such service;
b. You indicate that you will not comply with a request for security for the payment for the Services;
c. Your Service usage charges exceed established parameters based on your history of usage, which may indicate a likelihood of non-payment or possible fraud;
d. You have been given written notice by Voiceopia of any past due amount (which remains unpaid, in whole or in part) for any of Voiceopia’s or an affiliated carrier’s service to which you either subscribe or had subscribed or used;
e. You either refuse to pay when billed for Service or indicate to Voiceopia, its affiliate, Voiceopia, or an entity billing on Voiceopia’s behalf that you do not intend to pay for Service used by you;
f. You use, or attempt to use, Service with the intent to avoid the payment, either in whole or in part, of the charges for the Service by (i) using or attempting to use Service by rearranging, tampering with, or making connections to the Service in an unauthorized manner; or (ii) using tricks, schemes, false or invalid numbers, false credit devices, or other fraudulent means or devices;
g. You act, or fail to act, in a manner that hinders or frustrates any investigation by Voiceopia or others having legal authority to investigate your legal obligations;
h. Your telephone equipment fails to pass back to Voiceopia the appropriate signal to start and stop billing for a call;
h. You were previously provided with notice of breach of these terms and conditions or other contract with Voiceopia, took corrective action, but thereafter engaged in the same breach activity; or
i. You act in a manner that is threatening, obscene, harassing, or abusive to Voiceopia personnel.
j. You act in violation, or your usage is deemed in violation, of Sections III(F). or III(G) above.
2. Voiceopia reserves the right to discontinue furnishing Services, cancel your account, and/or block your access to Voiceopia network, without incurring any liability, immediately upon written notice to you if:
a. Any invoice charges remain outstanding and owed by you after the thirtieth (30th) day from the date of the invoice notifying you of the charges; or
b. You fail to comply with a request by Voiceopia for security for the payment for Services.
3. The discontinuance of Service(s) by Voiceopia pursuant to these provisions does not relieve you of any obligation to pay Voiceopia for charges due and owing for Service(s) furnished up to the time of discontinuance. Voiceopia may charge you a Disconnect Fee if your Service is canceled pursuant to either Section VI(B)(1) or (VI)(B)(2) above.
A. Voiceopia will not be liable for: (i) any failure of performance due to causes beyond its control, including, but not limited to, acts of God, fires, floods or other catastrophes; national emergencies, insurrections, riots or wars, acts of terrorism, strikes, lockouts, work stoppages or other labor difficulties; and any law, order, regulation or other action of any governing authority or agency thereof; (ii) delayed installation of Voiceopia’s facilities or commencement of Service; (iii) any damages associated with Devices not provided by Voiceopia and/or any third party software (including but not limited to the download thereof) recommended or required for use with any of the Voiceopia accessories.
B. With respect to any other factual allegation, legal claim, or dispute by you or by any others, for damages associated with the ordering (including the reservation of any specific number for use with a Service), installation (including delays thereof), provision, termination, maintenance, repair, interruption, or restoration of any Service or facilities offered by Voiceopia, Voiceopia’s liability, if any, will be limited as follows:
1. With respect to the attempts to route calls to public safety answering points or municipal emergency service providers, as described in Section II, Voiceopia’s liability, if any, will be limited to the lesser of: (a) the actual monetary damages incurred and proved by you as the direct result of Voiceopia’s action, or failure to act, in routing the call, or (b) the sum of $1,000.00.
2. With respect to the provisioning of, or any error or omission in, data, information, or content furnished in connection with any service provided by Voiceopia, for example, Directory Assistance, Voiceopia’s liability will be limited to the lesser of: (a) the amount of actual money damages proven by you to have been incurred as the proximate result of your reliance on such data, information, or content; or (b) $100.00.
3. Voiceopia shall not be liable for any delays or incompletion or costs or charges pursuant to a delay or incompletion in local number portability (LNP).
C. IN NO EVENT WILL VOICEOPIA BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS (WHETHER OR NOT VOICEOPIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES) BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
D. Voiceopia will be indemnified, defended, and held harmless by you against all claims of loss or damage arising from the use of Service furnished by Voiceopia, including:
1. Allegations or claims for libel, slander, invasion of privacy, or infringement of copyright arising out of the material, data, information, or other content transmitted via Voiceopia® Service; and
2. All other allegations and claims arising out of any intentional act or omission by you or others authorized by you to use the Service, in connection with any Service provided by Voiceopia.
3. Allegations or claims that you have not acquired or possess the requisite rights to any Devices not provided by Voiceopia and/or third party software for use in conjunction with Voiceopia accessories as described in Section III(N).
E. VOICEOPIA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ABOUT ITS SERVICES AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NONINFRINGEMENT.
VOICEOPIA DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON VOICEOPIA’S BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY VOICEOPIA.
F. Voiceopia will not be liable for any act or omission of any other company or companies furnishing a portion of the Service, or from any act or omission of a third party, including those vendors participating in Voiceopia offerings made to you, or for damages associated with the Service, or Equipment that it does not furnish, or for damages that result from the operation of customer provided systems, Equipment, facilities or services that are interconnected with Voiceopia® Services.
VIII. DISPUTE RESOLUTION
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 OR THROUGH A CLASS ACTION.
A. Binding Arbitration
The arbitration process established by this Section is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. Sec. 1-16. Both you and Voiceopia have the right to take any dispute that qualifies to small claims court rather than arbitration. All other disputes arising out of or related to this Agreement or the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved by final and binding arbitration. This includes any dispute based on any product, Service or advertising having a connection with this Agreement and any dispute not finally resolved by a small claims court. The arbitration will be conducted by one arbitrator using the procedures described by this Section. If any portion of this Dispute Resolution Section is determined to be unenforceable, then the remainder shall be given full force and effect. The arbitration of any dispute involving $10,000 or less shall be conducted in accordance with the Consumer Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. The AAA’s Commercial Arbitration Rules and fee schedules will apply to any disputes in excess of $10,000. You have the right to be represented by counsel in an arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms. The arbitrator may not award punitive, exemplary or similar damages. The parties agree that an award of such damages will be void if issued.
NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS’ FEES UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND VOICEOPIA BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
B. Arbitration Information and Filing Procedures
Before you take a dispute to arbitration or to small claims court, you must first contact our Customer Care Department representative at the customer service number on your Voiceopia invoice for the Services, or write to us at the following address and give us an opportunity to resolve the dispute:
1510 Stuart Road
Cleveland, TN 37312
You must describe your dispute and provide Voiceopia with any supporting documentation. Likewise, if Voiceopia has a dispute with you, it will notify you by letter sent to your billing address and attempt to resolve it before pursuing arbitration.
If the dispute cannot be satisfactorily resolved within sixty (60) days from the date you or Voiceopia is notified by the other of a dispute, then either party may then contact the AAA in writing at AAA Service Center, 2200 Century Parkway, Suite 300, Atlanta, GA 30345-3203 and request arbitration of the dispute. Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org. The arbitration will be based only on the written submissions of the parties and the documents submitted to the AAA relating to the dispute, unless either party requests that the arbitration be conducted using the AAA’s telephonic, on-line, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in the state of your primary residence. Any arbitration shall remain confidential. Neither you nor Voiceopia may disclose the existence, content or results of any arbitration or award, except as may be required by law, or to confirm and enforce an award. Judgment of the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES.
C. Fees and Expenses of Arbitration
Each party must pay its own expenses associated with any arbitration, including its attorney’s fees. If you file a request for arbitration, you will have to pay a filing fee in accordance with the AAA fee schedule. Under AAA rules, some costs such as the arbitrator’s fees and expenses will be allocated between the parties.
D. In addition to the procedures described in this Section for resolving a dispute, you may also have the right to file a complaint with an appropriate federal or state regulatory agency.
IX. MISCELLANEOUS PROVISIONS
A. Entire Agreement.
These Terms and Conditions constitute the entire Agreement between you and Voiceopia, and supersede any and all prior agreements, oral or written, concerning the subject matter. If there is any inconsistency or conflict between the terms of any calling plan, promotion, and/or authorized written communications you have received and the provisions of this Agreement, the provisions of this Agreement will control.
B. No Obligation to Assist in Switching to a Different Provider.
If you either voluntarily cancel your Voiceopia account or if Voiceopia cancels your Service for any reason set forth above, Voiceopia will have no obligation whatsoever to assist you in any respect in switching from Voiceopia to another service provider.
Customers may not modify or assign this Agreement. In its sole discretion, Voiceopia may assign this Agreement.
D. No Waiver of Rights.
If either party fails to enforce any right or remedy under this Agreement, that does not waive the right or remedy for any other breach or failure.
E. Binding Effect.
This Agreement is binding upon you and Voiceopia and upon, respectively, your and Voiceopia’s agents and heirs.
If any part or provision of this Agreement is finally determined to be invalid or unenforceable under applicable law by a court of competent jurisdiction, then that part or provision will be ineffective only to the extent of such invalidity or unenforceability, without in any way affecting the remaining parts or provisions of this Agreement.
G. Governing Law.
This Agreement is governed by and construed under the laws of the State of Tennessee and applicable federal law, without regard to its choice of law principles, except that the arbitration provisions in Section VIII shall be governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services.
Any liability or obligation of a party to the other party under the provisions of Sections I, II, IV, V and VII as applicable, will, in each case, survive cancellation or termination of this Agreement.
I. Headings of No Force or Effect.
Headings in this Agreement are for reference only and have no effect on the meaning of any provision.
© 2004 Voiceopia Communications, Inc.