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IGONET TERMS OF SERVICE VoIP Subscription Service This VoIP Subscription Service Agreement (“Agreement”) is between International Global Opportunity Network, L.L.C. (“IGONET”), a Service Provider to EMERATEL and the authorized user (“End User” or “Customer”) of IGONET'S residential and small business communications Services and any related products or Services (“Service”). This Agreement governs both the Service and any Devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection Device (“Device” or “Equipment”), used in conjunction with the Service.
By activating the Service, End User acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein. End User acknowledges that he/she is of legal age to enter into this Agreement.
End User is purchasing the Service in
full monthly terms. The term begins on the date of Service Activation (End Users
fourth (4) call or 14 days after placing their order with IGONET, whichever
comes first) and ends on the day prior to the same date in the following month.
This Agreement automatically renews on a monthly basis unless IGONET is
provided with written notice submitted by the End User via email to customerservice@igonet.com that declares notice of
non-renewal. Such notice of non-renewal must be received by IGONET at least ten
(10) days before the end of the monthly term in which the notice is given. In
the event that the End User attempts to terminate Service prior to the end of a
monthly term, the End User will incur the full month’s charges to the end of
the then-current term, including, without limitation, unbilled charges, taxes,
and other recurring fees, all of which immediately becomes due and payable. In
the event that the End User does not provide the requisite ten (10) day written
notice of termination in the following month, the End User will also be
responsible for the next full month’s charges. Neither expiration of the term,
nor termination of Service will relieve the End User from the obligation of
paying for all accrued and unpaid charges due IGONET under this Agreement. The
terms of termination of this Agreement are defined in Paragraph 4.0 below. “Number Portability” refers to the End User’s ability to transfer a non-IGONET telephone number to the IGONET service. In regard to porting a non-IGONET telephone number to IGONET service, the End User understands and agrees:
a. All End Users Begin Service with an IGONET telephone number End Users desiring to port an existing phone number to the IGONET network must first activate service with an IGONET telephone number. b. Port Before Service Cancellation Transferring a current active phone number to IGONET’S Service requires the End User to issue a porting request to their current provider, before termination of service is effected with that Service provider. In order for an active phone number to be transferred (ported) to IGONET, the port request will be processed only if the service remains active with the Service Provider from which the End User is porting his/her number from; cancellation of service must not be evoked by the End User until the End User has received acknowledgement from IGONET of a successful number transfer. c. Customer Initiates Request The process of porting numbers to the IGONET service requires the End User initiating such activity with their current service provider. IGONET has no ability to process these requests independently and it is incumbent upon the End User to initiate the port request through their original service provider. d. Number Porting Limitations IGONET does not have the ability to transfer all phone numbers in North America. IGONET has no control over the timing of the release of the transferring number; thus, IGONET makes no guarantees or warranties with respect to the timing or availability of number transfer.
The End User understands and agrees that IGONET’S Service is offered solely for residential use and for use by small businesses with four lines or less. This Agreement explicitly prohibits the End User from reselling or transferring the Service or the Device to another party without IGONET’S prior written consent. Use of the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting is strictly prohibited. IGONET reserves the right to immediately terminate or modify Service if it is determined, at IGONET’S sole and absolute discretion that use of the Service or the Device is, or at any time was, inconsistent with normal residential or small business usage patterns. In addition, the End User will be required to pay higher rates for residential or commercial Service for all periods in which use of the Service or the Device was inconsistent with normal residential or small business usage.
The End User shall use the Service and the Device only for lawful purposes. The End User shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior, herein referred to as ‘inappropriate conduct”. IGONET reserves the right to immediately terminate the End User’s Service if, in the Company’s sole and absolute discretion, IGONET determines that the End User has used the Service or the Device inappropriately or for any unlawful purpose. In the event of such termination, the End User will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, all of which will become immediately due and payable upon termination of the Service. If IGONET believes that the End User has used the Service or the Device inappropriately or for an unlawful purpose, IGONET may forward the relevant communication and other information, including identity data, to the appropriate authorities for investigation and prosecution. The End User hereby consents to IGONET’S disclosure and delivery of such information to any local, State or Federal authority law requesting such information. In addition, IGONET will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property, and, where failure to disclose the information may lead to imminent harm to the customer or others.
Although IGONET supports calling to foreign countries from North America, IGONET currently does not ship Devices out of North America, nor does IGONET provide Service anywhere outside North America. Because the Device travels easily and the End User may choose to travel outside of America with the Device, in such instances, the End User is solely responsible for any violations of local laws and regulations resulting from such use. IGONET reserves the right to terminate End User’s Service immediately if it is determined, in the Company’s sole and absolute discretion, that the End User has violated any law or regulation of any local, State or Federal authority. 1.6 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software. (a) Copyright; Trademark. All IGONET websites, corporate names, trademarks, trade names, logos, Service Marks, and domain names (collectively “Marks”) are now and will remain at all times the exclusive property of IGONET. The Service and Device and any firmware or software used to provide the Service or provided to the End User in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on the IGONET websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. Nothing in this Agreement grants the End User the right or license to use IGONET Marks.
(b) Unauthorized Usage of Device; Firmware or Software. This Agreement does not grant the End User license to use the firmware or software used to provide the Service or provided to the End User in conjunction with providing the Service, or embedded in the Device. The End User expressly agrees that the Device is exclusively for use in connection with the Service. The End User agrees and understands that IGONET will not provide any passwords, codes or other information or assistance that would enable the End User to use the Device for any other purpose. IGONET reserves the right to prohibit the use of any interface Device that IGONET has not provided to the End User. The End User hereby represents and warrants that he/she possesses all required rights, including software and/or firmware licenses, to use any interface Device that IGONET has not provided to the End User. In addition, the End User shall indemnify and hold IGONET harmless against any and all liability arising out of the End User’s use of such interface Device with the Service. The End User shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
The End User shall not change the
electronic serial number or equipment identifier of the Device or perform a
factory reset of the Device without IGONET’S prior written consent. The End
User shall not attempt to hack or otherwise disrupt the Service or make any use
of the Service that is inconsistent with its intended purpose. IGONET reserves
the right to terminate the End User’s Service if IGONET believes, at the
Company’s sole and absolute discretion that the End User has tampered with,
modified or altered the Device. In the event of such termination, the End User
will remain responsible for the full month's charges to the end of the current
term, including, without limitation, unbilled charges, all of which will
immediately become due and payable. In the event of a theft of the Device or if the End User becomes aware at any time that the Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner, the End User is obligated to notify IGONET immediately, in writing or by calling the Customer Support line at 1-800-655-7149 (1-877-646-9607 in Canada). Upon notification of IGONET, the End User must provide the account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of Service and additional charges to the End User. Until notice is received by IGONET of the occurrence of the theft, fraudulent use or unauthorized use, the End User will be liable for all use of the Service using the stolen Device and any and all stolen, fraudulent or unauthorized use of the Service. 1.9 ‘Out of Box’ Device Failures In the event that a Device arrives damaged or inoperable, the End User must report said damage to IGONET Technical Support by calling 1-800-809-5589 within 72 hours of delivery. IGONET’S Technical Support will verify that the unit has failed out of box, and upon doing so, IGONET will ship a new unit within 24 hours, along with a shipping label for the prepaid return of the failed unit.
Upon the termination of Service, IGONET will release to the End User’s new Service provider the telephone number that the End User had at one time ported (transferred or moved over) to IGONET from a previous Service provider and used in connection with the End User’s Service if: • The number transfer request is submitted to IGONET in advance of service cancellation • The End User's account is completely current • Such new Service provider is able to accept the porting number End User agrees and understands that in order for a number to be successfully ported, the porting number must be active, current and in service. The new Service provider to whom the terminating IGONET End User wishes to move the number verifies that the account is an active, billing account prior to acceptance of the port order. Therefore, if the End User terminates the account prior to the fulfillment of the port order, the order will be rejected by the new Service receiving the port request. End User acknowledges that porting requests submitted to IGONET via the end user’s local exchange carrier will be effected within one week. Porting Requests received by IGONET through the an alternate carrier executing the IGONET customer’s request will result in seven day response time by IGONET in fulfilling the port request and the End User’s IGONET Service may be cancelled as a result. IGONET reserves the right to assess a handling fee where standard processes are not adequate to cost effectively support the porting request. 1.11 Service Distinctions. The Service is not a telecommunications
Service and IGONET provides it on a best efforts basis. Important distinctions
exist between telecommunications Service and the Service offering that IGONET
provides. The Service is subject to different regulatory treatment than
telecommunications Service. This treatment may limit or otherwise affect the
End User’s rights of redress before regulatory agencies. The End User will own the Device and
bear all risk of loss, theft, casualty, or damage to the Device, upon delivery
to or receipt by End User until the time (if any) when it is returned to IGONET
in accordance with this Agreement. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) Services in one or more (or all) Service areas. 1.14 Incompatibility With Other Services. The End User acknowledges that some providers of broadband Service may provide modems that prevent the transmission of communications using this Service. IGONET does not warrant that the Services will be compatible with all broadband Services and expressly disclaims any express or implied warranties of merchantability or fitness for an intended purpose regarding the compatibility of the Service with any particular broadband Service. The End User acknowledges that the Service may not be compatible with home security systems. The End User may be required to maintain a telephone connection through the local exchange carrier in order to use any alarm monitoring functions for any security system installed in the End User’s home or business. The End User is responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service. 2.0 EMERGENCY SERVICES 2.1 Service Distinction End User understands that IGONET’S underlying carrier provides a non-warrantied, non-guaranteed e911 Service in limited areas of the United States only. The End User agrees to the terms and conditions that apply to the End User’s geographic location of Service usage. Residents of Massachusetts, Rhode Island, New Hampshire and New York LATA 132 are inside the Underlying Carrier’s e911 Service coverage area. End Users not located in these areas herein agree to the terms of Paragraph 2.2, No e911 Access. End Users located in the e911 coverage herein agree to the terms of Paragraph 2.3. 2.2 No E911 Access (for End User's Located Outside the Underlying Carrier's e911 Coverage Area) (a) No Access. The End User acknowledges that by using the Service outside the e911 coverage area, the End User has no access to traditional emergency response Services (NO FIRE, POLICE, AMBULANCE). END USER ACKNOWLEDGES THAT THIS VOIP SERVICE IS NOT OFFERED AS A PRIMARY LINE OR LIFELINE SERVICE, BUT AS A LONG DISTANCE SERVICE. END USER FURTHER ACKNOWLEDGES THAT HE/SHE/THEY WILL NOT HAVE ACCESS TO TRADITIONAL EMERGENCY RESPONSE SERVICES (e.g. FIRE, POLICE, and AMBULANCE) AND AGREES THAT END USER WILL ALWAYS MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING EMERGENCY SERVICES. The End User understands that in order to have access to fire, police, ambulance and other emergency response Services (e.g. “999”/”112”/”911”), maintaining local phone Service is required. The End User acknowledges and understands that the Service does NOT function or connect the same way as traditional copper, fiber, or wire-line local phone Service and is intended for domestically originated long distance Service only. Any local Service is incidental to the primary purpose of the Service. The End User agrees to inform any household residents, guests, and other third persons who may be present at the physical location where the Service is in use as to the non-availability of emergency response dialing, including without limitation to supply or maintain existing conspicuous posting on the Device of any caution or warning materials as may be appropriate. End User also agrees to make reasonable efforts and use reasonable judgment in informing such other users of the Service of the proper and specific operation and requirements of the Service or, alternatively, agrees to restrict third parties' access to the Service for any purpose. All non-voice communications equipment, including but not limited to, home security systems (set up to make automatic phone calls), fax machines, modems, and medical monitoring Devices, may not be compatible with the Service. (b) Service Outage. End User acknowledges and understands that the Service as a whole does not function in the event of a power failure or broadband Service outage, the source and maintenance of which is the End User’s sole responsibility. (c) Limitation of Liability and Indemnification. End User acknowledges that he/she is of legal age to consent to the terms and conditions of Service herein (i.e. 18 years of age or older). End User acknowledges receipt of these emergency Service limitations, and understands and agrees to them. By accepting these terms and conditions, the End User knowingly and voluntarily waives any claim against IGONET and the Company’s underlying provider of the Service, RNK, Inc. (“Underlying Provider”), and either party’s distributors and independent resellers, for interference with or disruption of non-voice communications equipment due to the Service. End User acknowledges and understands that the liability of IGONET and the Underlying Provider, its independent resellers and distributors is limited for any Service outage and/or inability to access emergency Service personnel, as set forth in this document, and applicable Tariffs and/or Public Disclosures. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS IGONET AND THE UNDERLYING PROVIDER, THEIR OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS AFFILIATES, INDEPENDENT RESELLERS INCLUDING EMERATEL, AND DISTRIBUTORS OF THE SERVICE, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO THE END USER IN CONNECTION WITH THE SERVICE, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO ACCESSING EMERGENCY RESPONSE SERVICES (e.g. FIRE, POLICE, OR AMBULANCE). 2.3 Limited E911 Service and Terms (a) Service Registration. By dialing 911 on an IGONET subscribed telephone, the call is routed to emergency personnel responsible for the Service address the End User listed as the registration address (‘Registration Location’). Emergency resources and personnel will be dispatched to the registered locations regardless of the actual location of the telephone at the time of the 911 call. The end user must correctly identify the actual Service address where the VoIP Device will be located when the End User registers for the Service. Failure to do so may result in fire, police or emergency Services either not being able to find your location or may significantly delay their response. The End User is obligated to accurately report the Service address or may incur fines or other penalties resulting from the dispatch of emergency Services. Should the End User wish to change the Registration Location of his/her Device, this can be done online by accessing the www.myigonet.com . The End User is required to obtain a new telephone number if he moves out of the local telephone exchange. (b) Service Limitations. The End User acknowledges and accepts the following Service limitations: (1) 911 emergency dialing is only available on approved Devices or equipment and upon completion of order processing and Service activation. If other equipment is used, 911 Service may fail. (2) 911 Service will not function if the End User’s VoIP Device is not configured correctly or if the Service is not working for any reason including, but not limited to, power outages, broadband Service outages, network congestion, suspension or disconnection of Service because of non-payment or late payment, of if the End User fails to meet the minimum technical Service requirements, or for any other reason the End User’s Service is temporarily suspended or terminated. In the event of a power outage, the End User may be required to reset or reconfigure the equipment prior to being able to use the Service, including for 911 purposes. (3) End User will advise all friends, guests, family members (including any others who might place calls over this Service from the location at which the Device is installed and registered) of these limitations, and will place warning stickers on or near the telephone. (4) End User acknowledges that he/she is of legal age to consent to the terms and conditions of Service herein (i.e. 18 years of age or older). End User acknowledges receipt of these 911/E911 Service limitations and that he/she understands and agrees to them. The End User acknowledges that the liability of IGONET and Genet’s underlying provider of the Service is limited for any Service outage and/or inability to dial 911 from the End User’s line or to access emergency Service personnel, as set forth in this document and in applicable tariffs and/or public disclosures. The End User agrees to defend, indemnify and hold harmless the underlying provider, its officers, directors, employees, agents, affiliates and independent resellers and any other Service provider who furnishes Services to you in connection with the Service, from any and all claims, losses (including loss of profits or revenue), damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of the End User or any third party or user of the Service relating to the failure or outage of the Service, including those related to 911 dialing.
3.0 Charges; Payments; Taxes; Termination 3.1 Billing. In order to subscribe to the Service, the End User must purchase the Device and pre-pay, prior to shipment, one month base Service fees, providing IGONET with a valid e-mail address and payment via electronic check or major credit card. The form of payment chosen must be associated with a valid North American billing address. Monthly Service fees, including usage, with the exception of the first month's pre-paid Service fees, will be automatically charged to the End User's major credit card from a card issuer accepted by IGONET or via direct debit to the End User's checking account via a bank specified by the End User at the time of enrollment and approved by IGONET. IGONET reserves the right, at any time, to stop accepting credit or debit cards from one or more issuers. If the End User’s credit or direct debit capability expires, the End User closes his/her account, the End User’s billing address changes, or the End User’s credit is cancelled or debit account closed and/or replaced on account of loss or theft, the End User must advise IGONET immediately in writing. IGONET will bill monthly, in advance, all charges, applicable taxes and surcharges (except for usage-based charges, which will be billed monthly in arrears, and any other charges which apply in arrears), shipping and handling charges, activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases and termination fees. The
amount of the fees and charges shall be published on the IGONET website www.igonet.com
and may change from time to time, at the discretion of IGONET. Notification of
monthly invoices will be sent to the End User via email address as specified at
time of Subscription. IGONET reserves the right to bill at more frequent
intervals if the amount due from the End User at any time exceeds fifty dollars
($50.00). Usage charges will be billed in increments that are rounded up to the
nearest minute except as otherwise set forth in the rate schedules found on the
IGONET website. The End User is obligated to notify IGONET by calling the Customer Service Department at 1-800-655-7149 or via email to billinginquiries@igonet.com after receiving the billing statement if he/she disputes any charges on that statement; otherwise, the End User will be deemed to have waived any right to contest such charges.
(a) Payment. IGONET accepts payment by credit card and electronic checking for the initial fees and accepts credit card and direct debit to the End User’s checking account for payment of monthly recurring fees. The End User’s subscription to the Service authorizes IGONET to charge the End User’s credit card or debit the End User’s checking account, as specified at the time of enrollment or as changed from time to time by the End User. In the event any debit account or manner of payment is changed by End User to a new or alternative source, IGONET must be immediately notified prior to such change. This authorization remains valid until thirty (30) days from the end of the monthly billing cycle wherein IGONET receives written notice from the End User terminating IGONET’S authority to process such charges, whereupon IGONET will charge the End User’s credit or debit account for the termination fee, if applicable, and any other outstanding charges and terminate the End User’s Service. IGONET may terminate Service at any time at the Company’s sole and absolute discretion if any charge to the End User’s credit card or debit account is declined or reversed, the End User’s credit card expires, or checking account is closed, and the End User has not provided IGONET with a valid replacement form of payment or in the event of any other non-payment of account charges (b) Collection. If the End User’s Service is terminated, End User will remain fully liable to IGONET for all charges pursuant to this Agreement and any and all costs IGONET incurs to collect such amounts, including, without limitation, collection costs and attorney's fees. 3.4 Charges for Directory Calls (411). IGONET currently does not charge for calls placed to Directory Assistance (411). 3.5 Taxes. The End User is responsible for payment of all applicable Federal, State, Provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of the End User’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed as set forth in this Agreement. If the End User is exempt from payment of such taxes, he/she must provide IGONET with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date IGONET receives such certificate. 4.0 Termination / Cancellation of Service
IGONET reserves the right to suspend or
discontinue the Service generally, or to terminate End User’s Service at any
time, at the sole and absolute discretion of IGONET. If IGONET discontinues the
Service generally, or terminates the End User’s Service without a stated
reason, the End User will only be responsible for charges accrued through the
date of termination, including a pro-rated portion of the final month's
charges. If the End User’s Service is terminated in response to the End User’s
breach of any provision of this Agreement, the End User is responsible for the
full month's charges to the end of the current term, including, without
limitation, unbilled charges, all of which immediately becomes due and payable. 4.2 Termination: Customer's Right to Discontinue Service The End User has the right to cancel the Service subscription at any time upon not less than ten (10) days prior written notice by either e-mailing the IGONET Customer Care Department at customerservice@igonet.com or by mailing written notification to IGONET at, #115 - 1133 Bal Harbor Blvd, Suite 1139. 33950-6574, ATTN: Customer Service Dept. Such termination results in the End User incurring the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, taxes, and other recurring fees, all of which immediately becomes due and payable. The End User is responsible for the next full month's charges in the event that he or she does not provide the requisite ten (10) days notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse the End User from paying all accrued and unpaid charges due under this Agreement. End User further agrees that:
5.0 Money Back Guarantee; Limitations and Conditions. IGONET offers a limited money back guarantee that is only applicable to the first Service line ordered for use by End User. This limited guarantee does not apply to additional or secondary lines. IGONET will cancel the Service, refund the activation fee, the monthly charge for the first month of Service, shipping charges and the ATA product charge, provided that End User has:
If the End User wishes to exercise the Money Back Guarantee but is unable or unwilling to return the Device, IGONET will refund all fees except the portion of the initial fees applicable to the Device, assuming the End User has cancelled the Service within the first fifteen (15) day period and has not exceeded 200 minutes of usage. The End User is responsible for any charges for international usage, other off network toll calls and additional monthly Service fees. IGONET reserves the right to terminate or revoke this money back guarantee at any time, without prior notice 6.0 Limitation of Liability; Indemnification; Warranties 6.1 Limitation of Liability. IGONET is not liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused for any reason including but not limited to the following:
IGONET’S aggregate liability under this Agreement will in no event exceed the Service charges applicable to the affected time period.
IN NO EVENT WILL IGONET, ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AFFILIATES OR AGENTS , OR RESELLERS (INCLUDING EMERATEL) OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO THE END USER IN CONNECTION WITH THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT IGONET WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
(a) Indemnification. The End User shall defend, indemnify, and hold harmless IGONET, its officers, directors, members, employees, affiliates and agents and any other Service provider who furnishes Services to the End User in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, the End User or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device. (b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive. 6.4 No Warranties on Service. IGONET MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET
CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, IGONET DOES NOT
WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY,
INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR
INFORMATION. NEITHER IGONET NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES
OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES
DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE
FOR UNAUTHORIZED ACCESS TO IGONET’S OR THE END USERS’ TRANSMISSION FACILITIES
OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR
DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION
THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS
OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF IGONET OR ITS SERVICE PROVIDER'S
OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR
DEVICE, IF ANY, BY IGONET OR IGONET’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND
ARE NOT GIVEN AS A WARRANTY OF ANY KIND. (a) Limited Warranty. Except as set forth herein, if the End User receives the Device new from IGONET and the Device includes a limited warranty from the manufacturer at the time of receipt, the End User must refer to the separate limited warranty document provided with the Device for information on the scope, limitation and disclaimer of certain warranties, if any. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. (b) No Warranty by IGONET. If the Device does not include a limited warranty at the time of receipt, the End User is accepting the Device "as is" and further, the End User is not entitled to replacement, repair or refund in the event of any defect. (c) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, IGONET MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
No provision of this Agreement provides
any person or entity not a party to this Agreement with any remedy, claim,
liability, reimbursement, or cause of action or creates any other third party
beneficiary rights. The End User is liable for any and all liability that may arise out of the content transmitted by the End User to any person, whether authorized or unauthorized, using the Service or Device (each such person, a "User"). The End User shall assure that use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. IGONET reserves the right to terminate or suspend Services and remove the Users' content from the Service, if IGONET determines, in the Company’s sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with IGONET’S ability to provide Services to the End User or others. IGONET’S action or inaction under this Section will not constitute any review or approval of Users' use or content. 7.0 Miscellaneous
7.1 Governing Law. The Agreement and the relationship
between the End User and IGONET are governed by the laws of the State of
Florida without regard to its conflict of law provisions. To the extent court
action is initiated to enforce an arbitration award or for any other reason
consistent with Section 7.2, the End User agrees to submit to the personal and
exclusive jurisdiction of the courts located within the state of Florida and
waives any objection as to venue or inconvenient forum. Any dispute or claim between the End
User or any user of the Service and IGONET arising out of or relating to the
Service or Device will be resolved by arbitration before a single arbitrator
administered by the American Arbitration Association (“AAA”) in accordance with
its Commercial Arbitration Rules. The arbitration will take place in Florida,
at the office of the AAA closest to the corporate office of IGONET. The
arbitrator's decision will follow the plain meaning of the relevant documents,
and will be final and binding. Without limiting the foregoing, the parties
agree that no arbitrator has the authority to: (i) award relief in excess of
what this Agreement provides; (ii) award punitive or exemplary damages, or
(iii) award attorney fees or costs. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. REGARDLESS
OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT
OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM
OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated
individually. The End User shall not bring or join any class action of any kind
in court or in arbitration or seek to consolidate or bring previously
consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A
WAIVER OF ANY RIGHT TO A JURY TRIAL, OBJECTION TO JURISDICTION IN FLORIDA, AND
ARBITRATION OF DISPUTES. IGONET’s failure to exercise or enforce
any right or provision of this Agreement will not constitute a waiver of such
right or provision. This Agreement, including any future
modifications as may occur within the terms of the Agreement (including Paragraph
8.0) and the rates for Services found on our website, constitute the entire
Agreement between the End User and IGONET and governs the use of the Service by
the End User. This Agreement supersedes any prior Agreements between the End
User and IGONET and any and all prior or contemporaneous statements,
understandings, writings, commitments, or representations concerning its
subject matter. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. 8.0 Future Changes to the Agreement IGONET may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on www.igonet.com . Such changes will become binding on the End User on the date they are posted to the website and no further notice by IGONET is required upon the End User’s continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of Service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.
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