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 TERMS
AND CONDITIONS OF SERVICE |
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| iTALK BROADBAND CORPORATION |
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This agreement ("Agreement") is between iTalk Broadband
Corporation ("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. 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 databases 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 after the date customer signs up for iTalk Service or the date Customer places the first call on the iTalk Service, whichever comes first. 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 1-877-482-5503 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 and the Equipment Charge of $59.99 will be charged to Customer's credit card.
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, 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. 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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Unless Customer purchases iTalk Small Business Plan, Customer
acknowledges that he or she has purchased residential services under
one of iTalk's plan offerings ("Plan") for Customer's personal,
residential, non-business and non-professional use. Customer agrees that
the Services are not intended for any commercial or governmental activities,
including without limitation to home office, business, sales, tele-commuting,
telemarketing, autodialing, fax broadcast, fax blasting or any other
activity that would be inconsistent with residential use. iTalk reserves
the right to terminate service to any Customer who uses a residential
plan primarily for business purposes.
Customer agrees to use the Service and Equipment only for lawful purposes. Customer agrees not to use the Services for any communication of any kind which in iTalk's sole discretion would constitute as a criminal offense or otherwise constitute a violation of any local, state, federal or international law or encourage conduct which would violate any such law.
Customer may not resell or transfer the Services or the Equipment to
any other person without the prior written consent of iTalk, which consent
may be withheld in iTalk's sole discretion.
Customer understands and agrees that the Service is not a telephone service.
Important distinctions (some, but not necessarily all, of which are described
in this Agreement) exist between telephone service and the Service offering
by iTalk. The Service is subject to different regulations than telephone
service. This treatment may limit or otherwise affect your rights to
redress before Federal or State agencies. |
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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 an 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 1-877-482-5503 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. |
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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. |
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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: December 5, 2006
Copyright by iTalkBB. |
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Exclusive
VOIP Partner in North America
