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 TERMS
AND CONDITIONS OF SERVICE |
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| iTalk Global Communications, Inc. |
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This agreement ("Agreement") is between iTalk Global Communications, Inc. ("iTalk") and an end user ("you," or "Customer") of iTalk's communications services and any IP telephone, analog telephone adapter or any other IP connection device or related products or services ("Service"). All Services are governed by the terms and conditions of this Agreement.
ADDITIONAL OR CONFLICTING TERMS AND CONDITIONS ON ANY DOCUMENT RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT ARE HEREBY REPLACED BY THIS AGREEMENT.
The rates and charges for the Service, which may be found at www.italkbb.com, are effective as of July 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.italkbb.com. |
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| Term |
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| Service is offered on a monthly basis beginning on the date Customer activates service and continues for the duration of that calendar month. The Service is automatically renewed unless Customer provides iTalk notification of intent to terminate the Service not less than thirty (30) days prior to effective date of termination as set forth in Section 7 below. |
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| Emergency
Services - 911 Dialing |
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| The safety and security of customers is of the utmost importance to iTalk. iTalk is happy to announce that it now offers 911 Emergency Dialing Services to its customers in US and Canada. However, iTalk's Emergency Dialing Services are VoIP based services, and therefore, are subject to certain limitations and outage factors that are different from traditional 911 accesses. It is important that you read, understand and inform all residents and guests of these important limitations. |
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| CUSTOMER ACKNOWLEDGES THAT THE SERVICES DO NOT SUPPORT TRADITIONAL 911 ACCESS TO EMERGENCY SERVICES. WHERE AVAILABLE, ITALK SERVICES DO INCLUDE E911 ACCESS TO EMERGENCY SERVICES, AND IN GEOGRAPHICAL AREAS WHERE E911 IS NOT AVAILABLE, ITALK SERVICES INCLUDE EMERGENCY DIALING. WHERE E911 IS AVAILABLE, A 911 CALL IS ROUTED DIRECTLY TO 911 DISPATCHERS. WHERE E911 IS NOT AVAILABLE, 911 CALLS ARE ROUTED TO GENERAL EMERGENCY TELEPHONE NUMBERS AND THE CALLER MAY BE REQUIRED TO VERBALLY STATE HIS OR HER ADDRESS. THE CALL IS THEN ROUTED TO THE APPROPRIATE EMERGENCY SERVICE DISPATCHER. ITALK ADVISES CUSTOMER TO MAINTAIN OR ACQUIRE AN ALTERNATIVE MEANS OF ACCESSING 911 SERVICES. YOU AGREE TO ADVISE ALL HOUSEHOLD RESIDENTS, GUESTS AND OTHER PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE YOU UTILIZE THE SERVICE OF EACH OF THE LIMITATION OF THE ITALK EMERGENCY DIALING SERVICE AND OF AN ALTERNATIVE MEANS OF 911 DIALING. |
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| IMPORTANT EMERGENCY DIALING LIMITATIONS: Customer understands and acknowledges that the iTalk emergency dialing feature cannot be used in conjunction with an iTalk "Virtual Telephone Number". An iTalk Virtual Telephone Number is assigned to each customer. The number always includes an area code of 899. These Virtual Telephone Numbers are NOT loaded into national emergency data bases and will not function to access emergency services. All customers must purchase a Public Switched Telephone Network (PSTN) traditional telephone number from iTalk in order to access iTalk Emergency Services. Customer further acknowledges that iTalk Services do not function with outdialing services including home security systems, medical monitoring equipment, fax machines or satellite television systems. |
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| REGISTRATION OF PHYSICAL LOCATION
REQUIRED: For each PSTN phone number that you use for the Services, you must provide the physical location where you will be using the Service. When you move the Equipment (Equipment refers to the iTalk Adapter sent to you by iTalk), you must register your new physical location with iTalk. All 911 calls are directed to emergency responders based upon the address you register with iTalk. If you move the Equipment and do not register the new physical location, emergency responders will be dispatched to your previous physical address. |
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| SERVICE OUTAGES; BROADBAND OUTAGES;
CONGESTION; AND SERVICE INTERRUPTION: iTalk emergency dialing services will not function in the event of a power outage or other interruption to your electricity service until the power supply is fully restored. Following a power disruption, you may need to reset your Equipment before the iTalk Service, including the emergency dialing service will function properly. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent the Service, including the iTalk emergency dialing service from functioning. Any interruption in your internet access will prevent you from placing 911 calls during the interruption. Broadband phone service is inherently subject to more network congestion and reduced speed in the routing of 911 calls than traditional 911 dialing over traditional public telephone networks. In the event that your iTalk account is suspended or terminated for any reason, your iTalk Service, including iTalk emergency dialing service will not function. |
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| DISCLAIMER OF LIABILITY AND INDEMNIFICATION: iTalk does not control how 911 calls are answered or handled by any local emergency response center. iTalk disclaims all responsibility for the actions and conduct of any and all national and local emergency response centers. iTalk relies entirely upon third parties to route 911 calls to local and national emergency response centers. iTalk disclaims any and all liability or responsibility in the event such third party data used to route the call is incorrect or produces an erroneous result. Neither iTalk nor its office , directors or employees may be held liable for any claim, damage or loss and you hereby waive any and all such claims or causes of action arising from or related to the Services unless such claims arose from iTalk's gross negligence, recklessness or willful misconduct. You, on your own behalf and on behalf of any third party, hereby agree to defend, indemnify and hold harmless iTalk, its officers, directors, employees and agents from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including attorneys' fees) relating to the absence, failure or outage of the Service, including the iTalk emergency dialing service or access to emergency service personnel. |
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| UNDERSTANDING, ACKNOWLEDGEMENT AND
ALTERNATIVE 911 SERVICE: You hereby acknowledge your understanding of the limitations of the iTalk emergency dialing services described above. In the event that you are not completely comfortable with the limitations of the Service, including the iTalk emergency dialing service, you should immediately take action to acquire an alternative means to access 911 services or you should immediately terminate the Services. |
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| Equipment
and Devices |
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| To provide Services, iTalk may provide equipment or IP devices to Customer ("Equipment"). All shipments are F.O.B. iTalk's facilities. You shall be the owner of the Equipment, and bear all risk of loss for theft, casualty, or damage to the Equipment from the time it is shipped to you until the time (if applicable) that it is returned by you and accepted by iTalk as described in Sections 4 and 8 below. Customer agrees not to change any serial number or Equipment identifier, or to alter any Equipment without the express written consent of iTalk. iTalk reserves the right to terminate Customer's service should you tamper with the Equipment and you will be responsible for all charges in the then current service period plus an Early Termination Fee. |
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| Money
Back Guarantee - Trial Period - Cancellation Policy |
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| iTalk offers a thirty (30) day trial period ("Trial Period") to new Customers for their first iTalk account. The Trial Period commences on the "Activation Date". The Activation Date is the first to occur of the date that is seven (7) days (international plan is 15 days) after the date customer signs up for iTalk Service or the date Customer places the first call on the iTalk Service. If Customer is not satisfied with the Service, Customer may terminate the iTalk Service at any time during the Trial Period and obtain a refund of the activation charges and monthly service fees. The Trial Period refund does not apply to toll usage (charges for calls to any country or region that is not included in an unlimited calling plans selected by Customer) or any local, state or federal taxes charged to Customer. To obtain a Trial Period refund, Customer must: (a) Call iTalk within thirty (30) days of the Activation Date at 1-877-ITALKBB and obtain an Equipment return authorization from iTalk's customer care department, and (b) Mail the Equipment to iTalk within seven (7) days after calling to terminate service (parcel must be post marked within the seven (7) day period) in its original condition including, all packing materials with bar codes in tact, all parts and accessories, documentation and manuals and all other items originally shipped to Customer. Send equipment to our Return Department at 8500 Leesburg Pike, Suite 7800, Vienna, Virginia 22182. Equipment returned to our local offices will not be processed. If iTalk does not receive the returned Equipment within fifteen (15) days after the termination date, no refunds will be made to Customer the Equipment Charge of $60 will be charged to Customer's credit card. (For international plans, no additional equipment charge will be reply) Upon receipt of the Equipment by iTalk, the amount of the Trial Period refund will be calculated based on the usage by Customer during the Trial Period as follows: (a) Customers using fewer than 500 minutes during the Trial Period will receive a Trial Period refund in the amount of $29.99 for Activation Fee, plus $9.99 for Shipping and Handling Fee(For international plans, no Shipping and Handling Fee are refunded to Customers), plus the full amount of Monthly fees previously charged to you credit card, and (b) Customers using 500 or more minutes during the Trial Period will receive a Trial Period refund in the amount of $29.99 for Activation Fee, plus $9.99 for Shipping and Handling Fee(For international plans, no Shipping and Handling Fee are refunded to Customers). No Monthly fee is refunded to Customers using 500 or more minutes prior to termination. No charges for toll calls are refunded to any Customer at any time. Early Termination Fees do not apply if Customer terminates Service during the Trial Period and all conditions of this Section 4 are satisfied. |
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| Service
- Usage |
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iTalk Reasonable Residential Use Policy
iTalk has developed the following Reasonable Residential Use Policy to describe permissible uses of its service, and to prevent exploitation, fraud, and abuse of its unlimited calling plans and features. This policy is applicable to all iTalk residential services.
Reasonable Residential Use
Unless Customer purchases iTalk Small Business Plan, Customer acknowledges that he or she has purchased residential services and features under one of iTalk's plan offerings ("Plan") for Customer's personal, residential, non-business and non-professional use. Customer agrees that iTalk’s residential service is intended for use by Customer and his or her immediate family. If your Plan allows you to extend the service or feature(s) to one or more mobile, land or VoIP numbers, such use is also considered to be use under the Plan and subject to iTalk’s Reasonable Residential Use Policy.
Impermissible Use(s)
Each of the following is considered to be outside normal residential use:
- use by or for others who are not members of Customer’s immediate family residing in Customer’s home
- business use of any type, including home office businesses
- operating a customer care, support or call center
- resale to others
- auto-dialing or fax/voice blasts
- telemarketing
- all other non residential uses
Monthly usage which is 30% higher than the average usage by iTalk residential customers is considered unusual and excessive usage and is subject to evaluation by iTalk. In addition, usage involving specific numbers called, average call durations, forwarding and transferring, conferencing and unusually short duration calling may, constitute impermissible use(s) of iTalk Plan services.
Based on these factors, iTalk may determine that abnormal, unreasonable or impermissible usage is occurring, and may take appropriate steps described below to enforce this Reasonable Residential Use Policy.
For Lawful and Appropriate Purposes Only
You may not use our service or devices in any way that is illegal, fraudulent, improper or inappropriate. You may not use any automated means to manipulate our service or use our service to violate any law, rule, regulation or any third party's intellectual property or personal rights. This section and iTalk’s enforcement provisions shall apply to all iTalk Plans, including, without limitation, the iTalk Small Business Plan.
iTalk’s Enforcement of its Policies
iTalk reserves the right to review and evaluate all customer accounts and to take action if an account is outside of its Reasonable Residential Use Policy or involves impermissible, detrimental or unlawful use. iTalk may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers. If any customer’s use is determined by iTalk, in its sole discretion, to be outside of its Reasonable Residential Use Policy, iTalk reserves the right to transfer the customer’s account to an appropriate business Plan, charge more appropriate rates for actual usage or to suspend or terminate service with or without notice. If any customer’s use is determined to be unlawful, iTalk will immediately suspend or terminate the service with or without notice. iTalk will notify all proper authorities of any illegal use of iTalk’s service and will cooperate with all such authorities regarding investigation and prosecution. iTalk hereby reserves all of its legal rights.
Changes
iTalk reserves the right to change its Reasonable Residential Use Policy at any time without notice. Any such changes shall become effective when posted to iTalk’s websites.
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| Billing,
Charges and Payment |
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Credit Card
Payment. Upon purchase, Customer must provide iTalk a valid credit card number from an accepted issuer (see iTalk's website for accepted issuers). Customer authorizes iTalk to charge the credit card number ("Credit Card") for all charges arising from Customer's use of the Services. Customer shall notify iTalk of any change to the Credit Card information including, without limitation, changes in account number, expiration date and billing address.
Invoicing. iTalk will provide Customer with a monthly on-line invoice for Services and bill all charges invoiced to Customer's account to the Credit Card. Charges shall include, Equipment purchases, monthly service fees, usage fees, shipping charges, Early Termination Fees, toll charges, taxes and all other applicable charges. Monthly service fees are paid in advance of each month's Service. Toll charges and other applicable charges are billed at the end of each service month. Deposits, if applicable, are charged at the time of purchase and are invoiced whenever the deposit is reduced by usage to $5.00. iTalk reserves the right to charge Customer's Credit Card at any time during a service month if Customer's toll charges exceed $20.00. Billing for monthly service fees, deposits and other applicable charges commences upon purchase of Services, and the first month's monthly service fees will be prorated to take into account any partial month of Service. Activation occurs when Customer's Equipment is registered to iTalk's systems ("Activation").
Toll Charges. All calls to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN") is subject to the then applicable toll charges that are associated with the service plan Customer has selected. All calls to destinations outside the United States to a party that is not an iTalk Customer will be charged at the then current international rates published on iTalk's website. The duration of each call will be calculated in one minute increments.
Telephone Numbers. Any telephone number provided to Customer by iTalk shall be leased and not sold. Customer may not use such number with any other devise other than the Equipment with the express prior written consent of iTalk. iTalk reserves the right to change, cancel or move the number in its sole discretion. The availability of all China DID numbers is subject to and dependent upon the network facilities and regulatory environment in China. iTalk cannot guarantee connection to any China DID from all cities and regions in China. iTalk further cannot guarantee uninterrupted service on China DIDs.
Billing Disputes. Customer must dispute any charges for the Services within thirty (30) days of receipt of the monthly on-line invoice. Customer understands and agrees that Customer's failure to dispute any charges with the thirty (30) day time period constitutes a waiver of all claims to any dispute.
Late Payment - Non-Payment. If any charges for Services are due but unpaid for any reason including, without limitation, non-payment or declined Credit Card charges, iTalk may suspend or terminate the Services and all accrued charges shall immediately be due and payable, to include a late fee of the lesser of 1.5% or the maximum allowed by law. If charges cannot be processed to the Credit Card, Customer will be charged a fee of ten dollars ($10.00). Neither suspension nor termination shall relieve Customer from the obligation to pay all amounts owing under this Agreement.
Taxes. Prices, fees and rates for Service and Equipment do not include customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes. All such taxes, which are applicable, shall be paid by Customer and will be added to any amounts otherwise owing by Customer under the Agreement. No taxes shall be included in any refund to Customer under the Agreement.
Credits. Customer acknowledges and agrees that the Services are provided "as is, where is". No credit allowances shall be made for interruption of Service.
Promotions. iTalk may, in its sole discretion, from time to time offer promotions or discounts on fees. Customer must enter any promotion or discount codes upon initial purchase of the Services. |
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| Termination
of Service |
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iTalk reserves the right to suspend or discontinue providing the Service or Customer's Service at any time in its sole discretion. If the Service is terminated by iTalk in its sole discretion and for any reason other than a breach or action of Customer, you will be liable for all charges accrued through the date of termination. If the Service is terminated as a result of a breach or other action of Customer, you will be liable for the entire month in which the termination occurs, unbilled charges and an Early Termination Fee as set forth in Section 8 below and all such charges shall be immediately due and payable.
Customer agrees to provide iTalk thirty (30) days notice of Customers intent to terminate services. Customer shall be responsible for the full monthly service fee for the month in which notice of termination is received. An Early Termination Fee may apply to termination as set forth in Section 8 below.
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| Early
Termination Fee |
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If Customer terminates the Service within twelve (12) months after the Activation Date and after expiration of the Trial Period, iTalk shall charge a Early Termination Fee to Customer's credit card in the amount of sixty nine dollars and ninety nine cents ($69.99). The Early Termination Fee shall be waived after Customer utilizes the Service for twelve (12) consecutive months after Activation Date. All Customers that terminate the iTalk Service will be charged on their credit card for the Equipment unless Customer takes the following actions: (a) Call iTalk at 1-877-ITALKBB to terminate the iTalk Service and obtain an Equipment return authorization from iTalk's customer care department, and (b) Mail the Equipment to iTalk within seven (7) days after calling to terminate service (parcel must be post marked within the seven (7) day period) in its original condition including, all packing materials with bar codes in tact, all parts and accessories, documentation and manuals and all other items originally shipped to Customer. Send equipment to our Return Department at 8500 Leesburg Pike, Suite 7800, Vienna, Virginia 22182. Equipment returned to our local offices will not be processed. If iTalk does not receive the returned Equipment within fifteen (15) days after the termination date, the Equipment Charge of $59.99 will be charged to Customer's credit card.
For international plans, there is no any refund after 30 day trial period if customer cancel the international service.
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| Charges
for Changes in Plans |
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iTalk will charge Customer's credit card a Plan Change Fee in the amount of $19.99 if Customer chooses to change Plan from any plan with a Monthly Fee of
$10.00 or more per month to any plan with a Monthly Fee less than $10.00
per month.
Plans cannot be switched between US plans, Canadian plans and international plans.
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| Changes
to the Agreement, Services or Plan |
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| iTalk reserves the right to change the Agreement, Services or Plan at any time ("Change"). Changes will be posted on iTalk's website thirty days before the effective date of the Change. Notice is deemed received by Customer and Changes will be binding on Customer on the date such Change(s) is posted on the website. Customer is deemed to have accepted the Change(s) unless Customer terminates the Service prior to the effective date of the Change or uses the Service after the effective date of the Change. If Customer elects to terminate the Services, Customer will be liable for all amounts due and a early termination fee, if applicable. Customer may, at any time, request a change of Plan subject to charges associated with such change of Plan. iTalk may reduce its prices for Services or Plans without prior notice to Customer. |
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| Technical
Support |
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| iTalk provides technical support for Services and Equipment described in this Agreement during its normal business hours. |
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| Limitation
of Liability, Warranty and Indemnification |
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DISCLAIMER OF DAMGAES. ITALK SHALL NOT, IN ANY EVENT OR CIRCUMSTANCE, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF DATA OR CONTENT, OR ARISING OUT OF 911 OR OTHER EMERGENCY DIALING IN CONNECTIONS WITH CUSTOMER'S USE OF THE SERVICES OR EQUIPMENT PROVIDED UNDER THIS AGREEMENT.
ITALK MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY ABOUT ITS SERVICES OR EQUIPMENT AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OR IMPLIED WARRANTIES OF MECHANTABILITY OR FITNESS FOR A PARTICLUAR PURPOSE OR USE. ITALK HAS NOT AUTHORIZED ANY PERSON OR ENTITY TO MAKE WARRANTIES ON ITS BEHALF AND CUSTOMER MAY NOT RELY ON ANY STATEMENT AS A WARRANTY BY ITALK.
Liability. iTalk will not be liable for any failure of performance due to any causes beyond its control or for any power outage, internet interruption, Equipment failure, delay in installation, activation or commencement of Service. With respect to any other legal claim or dispute, iTalk's liability shall be limited to the lesser of actual damages or one thousand dollars $1,000. iTalk will not be liable for any act or omission by any other person or entity furnishing services or products related to the Services or Equipment or for damages associated with service or equipment that iTalk does not provide.
Indemnification. Customer hereby agrees to indemnify and hold harmless iTalk and its officers, directors, shareholders and affiliates from and against any and all claims, damages and/or liability arising out of the Services or Equipment, including, without limitation, claims for libel, slander, invasion of privacy or infringement of copyright arising out of material, data or information transmitted via the Services and claims arising out of any intentional act or omission by Customer or others authorized by Customer to use the Service.
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| Governing
Law and Dispute Resolution |
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Governing
Law. This Agreement shall be governed by the laws of the State of Texas without regard to conflict of law provisions of any other state or jurisdiction. Customer hereby consents to exclusive personal and subject matter jurisdiction of the courts of the State of Texas.
Mandatory and Binding Arbitration.
All claims or disputes between Customer and iTalk arising in any way whatsoever out of the Services or the Equipment shall be resolved by binding and final arbitration by a single arbitrator. The American Arbitration Association shall administer the arbitration under the Commercial Arbitration Rules. The arbitration shall be conducted in Austin, Texas in English language. No arbitrator may award relief outside the limits set herein. Customer agrees that all claims shall be in Customer's individual capacity and that Customer will not commence or join any class or consolidate Customer's claim with the claims of any person or persons. Customer hereby waives any right to a jury trial.
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| Copyrights |
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| All software utilized or provided by iTalk in connection with the Services or Equipment shall be and at all times remain sole property of iTalk and are protected by copyright laws and international treaties. |
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| Force
Majeure |
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| iTalk shall not be liable for any delay in performance caused by acts of God, natural disasters, accidents, strikes, riots, war, government actions, equipment or power failures or any other cause beyond its control. |
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| Assignment |
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| Customer may not assign or transfer this Agreement or its obligations hereunder in whole or in part. iTalk may assign this Agreement at in time and in its sole discretion. |
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| Entire
Agreement |
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This Agreement constitutes the entire understanding and agreement between iTalk and Customer and supercedes all prior written or oral agreements related in any way to the subject matter hereof.
Updated: June 20, 2007
Copyright by iTalkBB.
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