End user license agreement
ICALL SERVICE TERMS AND CONDITIONS
1. SERVICE OFFERING. You agree you are contracting for VoIP services ("Services") with iCall, Inc., on behalf of its operating subsidiaries and affiliates hereinafter collectively referred to as "iCall". This agreement (as defined below) between you ("you" may also be referred to as .Customer.) and iCall sets forth the legal rights and obligations governing the iCall offer, provisioning and delivery of services to you and your use of the Services. This agreement consists of the following terms and conditions, the product terms and conditions (as defined below), the general Service terms and conditions (collectively, the "Additional Terms"), and any Schedules, Addendums, Appendices, and Exhibits attached hereto (collectively, and as applicable, the "Terms and Conditions"), and the applicable tariffs (collectively, the "Agreement"). Some Services offered by iCall under this Agreement are offered pursuant to applicable tariffs, which are filed with applicable regulatory agencies ("Tariffed Services"), as well as the Terms and Conditions. All applicable tariffs are fully incorporated herein. For Tariffed Services, in the event of a conflict between the Terms and Conditions and a tariff, the tariff shall control to the extent of any inconsistency. Upon cancellation of any tariff, the Terms and Conditions shall control. The terms and conditions set forth herein summarize in most respects the Additional Terms. In the event of any inconsistency between the terms contained herein and the Additional Terms, and only to the extent of the inconsistency, the Additional Terms shall control.
1.1 VoIP Origination Service. Voice over Internet Protocol Origination ("VoIP Origination) is a switched origination service that allows calls originating from the public switched telephone network ("PSTN") in various markets to access Customer.s End Users through iCall.s IP Network using direct inward dial ("DID") numbers either provided by iCall to Customer or ported to Customer using local number portability ("LNP"). The calls originating from the PSTN are converted to data packets in iCall.s IP Network and then delivered to Customer through a Session Initiation Protocol ("SIP") interconnection port. Customer may interconnect to iCall via the public Internet. These arrangements collectively are referred to hereinafter as the .Interconnection.. Customer understands and agrees that iCall shall have no liability whatsoever associated with Customer.s use of the public Internet for access to iCall.s VoIP Origination Service or otherwise, including without limitation with respect to any failure, delay, loss of data or other damages or losses.
iCall.s VoIP Origination service is designed for and liminted to local Calls originated from a caller dialing an iCall-issued or ported DID number. iCall does not support the delivery of collect calls or third party billing information via Customer.s Interconnection.
2. TERM. The initial Service term shall be for one (1) month and shall begin upon acceptance of this Agreement. Upon expiration of the initial Term, unless terminated in accordance with this provision, this Agreement will automatically renew for a similar term and at the same rates (unless otherwise stated in any notice provided by iCall) pursuant to the Terms and Conditions, including the applicable tariff(s) (collectively the initial Term and any applicable renewal term shall be referred to herein as the "Term"). If Customer wishes to terminate a Service for any reason or not to renew such Service, Customer shall provide iCall with written notice (Termination Notice.) addressed to iCall at such location as iCall shall specify from time to time. Such Termination Notice must specify all necessary identifying details about the Service being terminated (e.g. account identifiers such as username and password) and the requested effective date of such termination (which date must not be less than thirty (30) days from the date notice is received by iCall). Termination of Service by any form of communications or means other than as provided above shall not be effective and Customer shall remain obligated to iCall for all Services rendered. For the avoidance of doubt, if Customer elects to take Service for a minimum term or minimum commitment and cancels service before the end of the Term, Customer shall be subject to early termination charges, as further detailed in the applicable Terms and Conditions.
3. RATES. The rates for Services shall be set forth separately and shall be valid for the initial Term subject to the applicable Terms and Conditions. Rates for international Services are subject to change on three (3) days notice from iCall, and the new rates are automatically effective on the 4th day from the date of such notice. Customer acknowledges international long distance wireless terminations are billed at higher rates, as further set forth in the Additional Terms. Rates do not include taxes, surcharges and fees charged by iCall, including but not limited to the Subscriber Line Charge and Long Distance Access Charges. Customer agrees to maintain a blend rate of 80% interstate and 20% intrastate calls, less the full intrastate termination rate will be applied to that call. Interstate and intrastate call classification will be determined by the Customer supplied caller ID information. Any calls containing invalid, toll-free, or otherwise obscured caller ID information will be considered intrastate for all purposes.
4. SUPPLEMENTAL PRODUCT TERMS AND CONDITIONS. The supplemental product terms are listed separately. Only the Product Terms and Conditions for Services ordered and/or used by you are applicable.
5. ACCEPTABLE USE POLICY. Customer agrees to be bound by the iCall Acceptable Use Policy listed separately.
6. RIGHT TO MAKE SERVICE CHANGES. iCall retains the right to change, increase or decrease from time to time, in its discretion and without liability to Customer, the methods, processes, and/or the suppliers by which iCall provides Services to Customer, as well as the right to change, add to or delete Service or Service offerings with appropriate notice to Customer.
7. PAYMENT. Customer shall pay iCall for Services by check, wire transfer, credit card or other payment method as listed on the purchase forms of this web site. Invoices are due upon receipt, which is presumed within three (3) days after the invoice is mailed. Customer agrees to pay the applicable set-up installation and disconnect fees. Installation and disconnect fees are non-refundable. Regular billing for the Services will begin on the Start of Service Date (as defined below). Monthly recurring charges are billed in advance while usage and related charges may be billed in arrears depending upon your choice of payment method. Customer agrees that any additional Services requested whether verbally or in writing will incur additional fees and charges and Customer agrees to pay these fees and charges when invoiced. Invoices not paid within thirty (30) days after date of invoice, will be past due and subject to a 5% per month interest fee or the maximum rate permitted by law, whichever is less, on all past due balances. Customers authorizes iCall to request information from a reporting agency to enable iCall to assess Customer.s credit history, that such action is not the extension of "credit" to Customer, and that iCall may alter any Service or billing arrangements as a result, upon notice to Customer. In addition, Customer acknowledges that iCall may require Customer to submit upon demand a deposit, bond or other financial assurances to iCall if so requested as a condition of initial or continued Service, or Service may be suspended or terminated.
8. START OF SERVICE DATE. The Start of Service Date. for a service shall be the date on which this agreement is accepted. iCall may bill Customer for any costs it has incurred in provisioning the Services. iCall shall not be liable for any damages whatsoever resulting from delays in meeting Service delivery dates requested or specified by Customer, or the inability to provide Services. Customer may not cancel this Agreement if there is a delay in installation related to the Services unless such delay is solely due to iCall and such delay is longer than ninety (90) days beyond the parties agreed Start of Service Date.
9. DEFAULT/TERMINATION. Except as otherwise required by law or applicable regulation, if, after the Start of Service Date, Customer: (a) fails to pay any amount required under this Agreement or any other agreement with iCall when due and such failure continues for ten (10) days, or such other cure period as may be specified in the applicable Exhibit, after written notice to Customer that the same is due and payable; (b) fails to comply with any other material provision of this agreement and such noncompliance continues for thirty (30) days after written notice to Customer thereof; or (c) Customer cancels or terminates Service, including any part of an integrated Service offering (except related to an international Service rate change pursuant to section 3, and as further set forth in the Additional Terms), at any time before completion of the initial Term or any renewal Term, then iCall may elect to pursue one or more of the following courses of action, as applicable: (i) terminate in whole or in part Customer.s Service, whereupon all charges for the remaining Term are immediately due and payable for the terminated Services, and, for usage-based Service only, Customer shall pay an additional early termination charge that shall be equal to 75% of Customer.s average monthly usage (for long distance and local voice Services usage as applicable) for the three (3) months prior to the termination month (or such lesser period if fewer than three (3) months of Service were utilized), times the number of months remaining in the Term of the Agreement, (provided, however, that in the event Customer has made an annual or other revenue commitment, the shortfall of that commitment over the remaining Term shall be the measure of the early termination charge); (ii) take immediate appropriate action to enforce payment, including suspension or discontinuance of all or any part of the Services; and/or (iii) pursue any other remedies as may be provided at law or in equity. In addition to any other rights and remedies iCall may have, Customer agrees that if Customer cancels, terminates or breaches this Agreement after execution of the Agreement but prior to the Start of Service Date, except as termination is permitted above, Customer shall pay iCall an early termination charge of two (2) months of the anticipated monthly recurring charges or commitment level, along with all nonrecurring charges. Any action outlined herein by iCall shall not be construed as an exclusive remedy and shall not waive any iCall right to pursue any other remedies. It is agreed that iCall damages in the even of Service cancellation or termination shall be difficult or impossible to ascertain. Early termination charges are intended to establish liquidated damages and are not intended as a penalty.
10. DISCLAIMER OF WARRANTIES. ICALL MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUATORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT OR ICALL OWNED OR PROVIDED EQUIPMENT USED BY THE CUSTOMER, INCLUDING ANY EQUIPMENT WITH RESPECT TO WHICH TITLE MAY TRANSFER TO CUSTOMER (EXCEPT TO THE EXTENT SET FORTH IN A SEPARATE ICALL SALE TRANSFER DOCUMENT). THIS INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS.
11. LIMITATION OF LIABILITY. 1. WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIOINS UNDER THIS AGREEMENT AND/OR SERVICES PROVIDED HEREUNDER, ICALL.S LIABILITY FOR SERVICE INTERRUPTIONS OR SERVICE PROBLEMS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES AS EXPRESSLY PROVIDED IN APPLICABLE TARIFFS OR AS OTHERWISE SET FORTH IN THESE TERMS AND CONDITIONS. 2. ICALL SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OF AN ACCOUNT, EQUIPMENT, OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER, OR ITS END-USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER; OR (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN IF ICALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ONLY EXCEPTION SHALL BE TO THE EXTENT PROPERTY DAMAGE TO CUSTOMER.S PREMISES IS CAUSED DUE TO ICALL.S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROVIDED, HOWEVER, IN NO EVENT THALL ICALL LIABILITY FOR DIRECT DAMAGES BE GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO ICALL DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. 3. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED T, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, SAVINGS OR REVENUE, OR HARM O BUSINESS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CAUSE WHATSOEVER.
12. COMPLETE AGREEMENT/ADDITIONAL TERMS. This Agreement, incorporating all the items reference herein, represents the complete agreement of the parties, and supersedes all other agreements whether written or oral. This agreement may be modified only by written agreement executed by authorized parties, changes to the URL sites referenced, changes to tariffs or as otherwise specifically provided herein. Neither Electronic Mail nor Instant Messaging (.IM. shall be considered a .writing. sufficient to change, modify, extend, or otherwise affect the terms of the Agreement. Any modification to the Agreement not authorized by iCall shall render the Agreement null and void and subject to immediate termination. This agreement shall be governed by the substantive law of the State of California without reference to it principles of conflicts of laws, and Customer consents to the jurisdiction and venue of the Federal District Court in California, Los Angeles.
13. BILLING DISPUTES. Customer agrees that all billed amounts are correct and true unless iCall is notified electronically at or in writing within thirty (30) days of the disputed charges posting to the Customers account. Failure to notify iCall of such disputes within thirty (30) days forfeits any rights to claims. All claims made by Customer must include call detail records for any disputed calls or amounts.
THE ADDITIONAL TERMS, AUP AND TARIFFS MAY BE MODIFIED FROM TIME TO TIME AT ICALL DISCRETION OR AS REQUIRED BY APPLICABLE LAW. YOU AGREE TO REVIEW SUCH CHANGED ITEMS FROM TIME TO TIME AND BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE PARTICULAR SERVICES YOU CHOOSE NOW OR MAY CHOOSE IN THE FUTURE. UNLESS SUBJECT TO TARIFFS OR THE TERMS AND CONDITIONS POSTED ON THIS WEB PAGE. ICALL MAY NOT UNILATERALLY CHANGE THE RATES, FEES OR CHARGES SET FORTH HEREIN WITHOUT CUSTOMER CONSENT. IF CUSTOMER DETERMINES CHANGES TO THE ADDITIONAL TERMS, AUP AND TARIFFS WILL MATERIALY AND DETRIMENTALLY AFFECT CUSTOMER.S SERVICE OR RIGHTS AND ARE NOT MANDATED BY LAW OR REGULATION, CUSTOMER MAY PROVIDE ICALL WRITTEN NOTICE OF OBJECTION. CUSTOMER MUST INCLUDE A DETAILED DESCRIPTION OUTLINING HOW THE CHANGE ADVERSELY AFFECTS CUSTOMER.S SERVICE(S). ICALL WILL REVEW SUCH NOTIFICATION AND IF THE PARTIES CANNOT COME TO AN AGREEMENT WITHIN THIRTY (30) DAYS, CUSTOMER MAY TERMINATE SUCH SERVICES WITHOUT INCURRING CHARGES FOR EARLY TERMINATION PROVIDED THAT CUSTOMER.S ACCOUNT IS CURRENT (I.E., NO BALANCE OLDER THAN THIRTY (30) DAYS). IN ANY CASE, THE CHANGES SHALL NOT DIMINISH ANY APPLICABLE SERVICE LEVEL AGREEMENTS ENTERED INTO AT THE START OF THE SERVICE DATE. YOU HEREBY CONSENT TO THE INCORPORATION OF APPLICABLE TARIFFS AND THE ADDITIONAL TERMS INCLUDING, WITHOUT LIMITATION, THE AUP. YOU AGREE THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE OF ELECTRONIC RECORDS. YOU MAY REQUEST HARD COPIES OF PART OR ALL OF THE TERMS AT ANY TIME BY E-MAILING . THE OFFERING AND PROVISIONING OF SERVICES IS SUBJECT TO ANY REQUIRED INTERNAL ICALL APPROVALS AND ANY REGULATORY COMMISSION REVIEW, APPROVAL AND REQUIREMENTS. IF YOU USE THE SERVICES YOU ARE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE AUP, AND THE APPLICABLE TARIFFS.
Acceptable Use Policy of ICALL.COM and all related sites owned, operated or controlled by iCall, Inc ("iCall website")
Acceptance of Terms Through Use
This site provides you the ability to learn about iCall and its products and services as well as the ability to access our network and services ("iCall Services"). By using this site, and any other site owned and operated by iCall, you signify your agreement to the terms, conditions and notices of this policy. "You" when used in this statement shall mean the iCall Customer of record and iCall Customer end users.
This Acceptable Use Policy is used in conjunction with the terms of your service agreement. Violating any of these policies grants iCall the authority to take action to restrict or terminate your access to iCall Services. We reserve the right, at our discretion, to update or revise this policy, any other policy or statement on any iCall website, and any product offerings or programs described on any iCall website. Please check back periodically to review any changes to this policy.
iCall disclaims, to the maximum extent permitted by law, all warranties, representations or other endorsements, express or implied, with regard to the information accessed from, or through, this service, the systems which provide it and the Internet, including all warranties of merchantability or fitness for a particular use, or non-infringement of any third-party rights. iCall does not assume any liability for the completeness, accuracy or usefulness of any information disclosed or materials accessed. In no event shall iCall (or any persons or entities related thereto) be liable for any special, indirect, or consequential damages associated with or arising from use of this service in any way, including any loss of use, data or profits, regardless of the form of action. Any failure by iCall to enforce this policy in every instance in which it might have application does not amount to a waiver of iCall's rights
You must use this site and the iCall Services in accordance with the terms of this policy and your iCall Service Agreement, and in accordance with all federal, state and local laws, ordinances, and regulations.
User Conduct, Prohibited or Unlawful Use
In order to maintain an informative and valuable service that meets the needs of the users of this site and iCall Services, the following rules have been established to protect against abuse.
Use of this site or iCall Services for any purpose that is unlawful or in any manner which could damage, disable, overburden or impair the operation of this site, the iCall Network or iCall Services or any other party's use or enjoyment of this site, the iCall Network or iCall Services, is strictly prohibited.
Specifically, you may not:
1. Attempt to use or gain unauthorized access to data, accounts, hosts, servers, systems or networks of this site, or to probe, scan or test the vulnerability of a system or network of this site, any iCall Services or those of any other party
2. Interfere with service to any user, host or network.
3. Forge any TCP-IP packet header
4. Use this site or iCall Services to engage in activities that violate any terms or conditions of any other network access provider or Internet service provider
5. Additionally, you may not, by use of any iCall Service or another service, upload, post or otherwise distribute or facilitate distribution of any content, including text, communications, software, images, sounds, data, or other information that, in iCall's discretion:
a. Is unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, deceptive, fraudulent, invasive of another's privacy, tortious, indecent, pornographic or inaccurate
b. Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability or any other reason
c. Contains viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer
d. Has a negative effect on iCall or its network (including, without limitation, overloading servers on the iCall Network; causing portions of the iCall Network to be blocked by other network providers; generating unresolved third party complaints or complaints which, in the discretion of iCall, impose an unreasonable administrative burden on the company; etc).
Your participation in online communication or use of any iCall service is not edited, censored or otherwise controlled by iCall. However, iCall reserves the right to monitor content on this site and any iCall Services and to remove content, disable sites, or suspend or terminate services if iCall, in its discretion, determines such content or user practices are harmful, offensive, or otherwise in violation of this Acceptable Use Policy.
iCall makes no representation that materials available on this site or any or through any iCall service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who access this site or any site hosted by iCall from other locations are responsible for compliance with local law.
Intellectual Property Rights
Copyright: All iCall web site design, text, graphics and the selection and arrangement thereof are the copyrighted work of iCall, Inc. 2006 to 2011. All rights reserved. If any pages, information or content is copied, it may only be copied for non-commercial uses and iCall shall, in any event,
retain all copyright and other proprietary interests therein.
Trademark: iCall and the iCall logo, and all other related names, design marks, product or feature names are either registered trademarks or trademarks of iCall, Inc. in the United states and/or other countries. iCall marks may not be used without the express written permission of iCall. All other products and services referenced in this site are the trademark or services marks of their respective owners.
Patents: Components of certain services provided by iCall are subject to patents.
You acknowledge and agree that copyrights, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws protect all content and materials available on this site or through any iCall service. Nothing on any iCall website shall be interpreted or implied in such as way as conferring any license or right to any intellectual property rights or license to any intellectual property, content, technology, system, process, or related material belonging to iCall by virtue of it being displayed or made accessible on any iCall website. Except as expressly authorized, you agree not to use this site or any iCall Services in any manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you may access, receive or make available through this site or any iCall Services.
User's Grant of Limited License
By posting or submitting content to any iCall website, you:
2. Warrant and represent that you own or otherwise control all of the rights to the content and that public posting and use of your content by iCall will not infringe or violate the rights of any third party.
Controlling Law and Termination
This Authorized Use Policy is subject to, and shall be construed and enforced in accordance with the laws of the State of California without regard to its choice of law principles, and any disputes hereunder shall be brought in the United States District Court in California, Los Angeles.
The iCall Terms of Service Agreement and Acceptable Use Policy prohibit acts of copyright and trademark infringement and other unlawful behavior by iCall subscribers. iCall takes violations seriously and will investigate complaints and, where appropriate, may suspend or terminate services, or take other action as necessary. iCall assumes no responsibility for costs incurred for defending or asserting a violation of the iCall Terms of Service Agreement or Acceptable Use Policy.
General Complaints: Please send reports of any activity in violation of this Acceptable Use Policy to . iCall will reasonably investigate incidents involving such violations. iCall may involve and will cooperate with law enforcement officials if any criminal activity is suspected. Violations may result in criminal and civil liability.
Fraud Complaints: iCall recognizes that acts of fraud can be and are committed over the Internet. iCall encourages all Customers and Internet users to be vigilant about protecting their personal information, account numbers, id's, passwords, etc. As with non-Internet fraud, fraud complaints are best and most appropriately made to law enforcement authorities. If you believe you have been the victim of Internet fraud (either via the web or through email), iCall encourages you to contact your local or state consumer protection authority, or one among several U.S. agencies that handle complaints about Internet fraud.