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TERMS AND CONDITIONS
Number Networks Terms of Service
TERMS AND CONDITIONS OF SERVICE This agreement ("Agreement") is between Number Networks, Co. ("Number Networks") and you ("End User", “User”, “Customer”). The KeepTheNumber Phone Number Management Service and any related products or services ("Services") provided by Number Networks to the End User shall be governed by the terms and conditions herein. By activating the Services, the End User acknowledges that they are of legal age to enter into this Agreement and has received, read and understood this Agreement and accepts the terms and conditions herein. 1. TERMS AND CONDITIONS The terms and conditions expressed herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End User, including, without limitation, purchase orders and specifications. Any additional, different, or conflicting terms and conditions on any such document issued by End User at any time are hereby objected to by Number Networks, and any such document shall be wholly inapplicable to any sale made or service rendered hereunder and shall not be binding in any way on Number Networks. No waiver or amendment to this contract or these terms and conditions shall be binding on Number Networks unless made in writing expressly stating that it is such a waiver or amendment and signed by an officer of Number Networks. 2. TERM The term of this Agreement ("Term") commences on the date that Number Networks initiates the Services and continues for the duration of the service period as defined by the service plan that is selected by the End User ("Plan"). At the end of the current Term, the Term is automatically renewed under the same terms and conditions for a like term as the Term just ending unless the End User provides Number Networks, prior to the end of the current Term, notification of intention to terminate the service. The End User agrees to pay for the Services for the duration of the Term. Expiration of the Term does not alleviate the End User of responsibility for paying all unpaid, accrued charges due hereunder. If the End User chooses to terminate the service before the end of the current Term, the End User will be immediately responsible for paying monthly service fees otherwise due for the duration of the Term. Upon termination, the End User must immediately return to Number Networks any Number Networks equipment provided hereunder ("Equipment"), undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to Number Networks an amount equal to the fair retail price of the Equipment minus any payments End User had previously paid specifically for said Equipment. 3. SERVICE DISTINCTIONS End User acknowledges and understands that the Service is not a telephone service. Important distinctions exist between telephone service and the Phone Number Management Service provided by Number Networks, including but not limited to the inability to make outgoing telephone calls due to the absence and non-requirement of a physical telephone device for certain services offered by Number Networks to function correctly. End User acknowledges and understands the differences and limitations between services selected by End User and telephony services available from other service providers. This Service is subject to different regulatory treatment than phone service. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies. 4. TELEPHONE NUMBERS 4.1 NON-PORTED NUMBERS Any telephone number provided by Number Networks and not ported in to Number Networks from another service provider (“Non-Ported Number”) shall be leased and not sold. End User shall not obtain any rights, title or interest in the Number. Non-Ported Numbers are not portable to other service providers. The End User is not to use the Non-Ported Number with any other device other than the Equipment without the express written permission of Number Networks. Number Networks reserves the right to change, cancel or move the Non-Ported Number at our discretion. 4.2 PORTED NUMBERS Any telephone number ported in to Number Networks (“Ported Number”) shall be leased and not sold. End User shall not obtain any rights, title or interest in the Number. The End User is not to use the Ported Number with any other device other than the Equipment without the express written permission of Number Networks. Number Networks reserves the right to change, cancel or move the Ported Number at our discretion. Number Networks, may, solely at the Company’s discretion, release the phone number that was ported in to Number Networks by End User and used in connection with End User’s Service provisioned by Number Networks to End User’s new service provider, if such new service provider is able to accept such number, upon termination of End User’s Service, and provided (i) End User’s account has been terminated; and (ii) End User’s Number Networks account is completely current including payment for all charges and disconnect fees; and (iii) End User requests the transfer upon termination of account. 5. CHARGES, PAYMENTS, DISPUTES, TERMINATION. 5.1 CHARGES, PAYMENTS, TERMINATION End User is to pay all charges invoiced to the End User's account including, but not limited to, initiation fees, activation fees, monthly service fees, equipment charges, toll charges and any other applicable charges. All invoices are due upon receipt. End User authorizes Number Networks to periodically charge the current credit card account number provided by the End User ("Credit Card") for all charges accrued during the applicable billing cycles for the duration of the Term. Number Networks reserves the right to bill at more frequent intervals if the amount due at any time exceeds $10. In addition to any other remedies available under law, if any charges are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, Number Networks may terminate the Services and all accrued charges are immediately due plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by Number Networks. No termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder. Monthly service fees are paid in advance of each month's service, toll charges and any other applicable charges are billed at the end of each month's service. Monthly service fees are initiated at the earlier of i.) the End User's activation of the Services or ii.) 30 days after the End User's purchase of the Services and are prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated. 5.2 DISPUTES End User must notify Number Networks in writing within 7 days after receiving End User’s credit card statement if End User disputes any Number Networks charges on the statement or such dispute will be deemed waived. Billing disputes should be directed to: billing@keepthenumber.com . 5.3 CREDIT CARD INFORMATION Number Networks only accepts payments by credit card. End User’s acceptance of Agreeement authorizes Number Networks to perform an authorization to the credit card account number on file with Number Networks, including any changed information given to Number Networks if the card expires or is replaced, for Number Networks charges that accrues during the billing cycle. End User agrees to inform Number Networks of their updated credit card information as soon as the change is made known to them. 6. TOLLS. Every call 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 Plan. Every call to or from Equipment using the Services that originates or terminates with a SIP service provider that is not affiliated or associated with Number Networks will also count as PSTN minutes and be subject to the then applicable toll charges that are associated with the Plan. The duration of each call is to be calculated in one (1) minute increments with a minimum call duration of one (1) minute. 7. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. End User shall not modify the Equipment in any way without the express written permission of Number Networks. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Equipment and shall pay Number Networks for any such lost, stolen or broken Equipment an amount equal to the fair retail price of the Equipment minus any payments End User had previously paid specifically for said Equipment. End User shall immediately notify Number Networks of any fraudulent activity, lost or stolen Equipment, passwords or usernames and shall cooperate with Number Networks in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment and Service. At Number Networks’ sole option, failure to report fraudulent activity, lost or stolen equipment, passwords or usernames in a timely manner will cause End User to be responsible for all service fees accrued until the time that Number Networks is informed of the loss or theft and can affect a termination of the Services. 8. CREDIT. All shipments, deliveries, services and performance of work covered by this Agreement shall at all times be subjected to credit approval or review by Number Networks. End User will provide such credit information or assurance as is requested by Number Networks at any time. Number Networks, in its sole discretion and judgment, may discontinue credit at any time without notice. 9. TAXES. Quoted prices do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes now in force or enacted in the future, that arise from or as a result of End User’s subscription or use or payment for the Service or Equipment. All such taxes shall be paid by the End User and will be added to any amounts otherwise charged to End Users unless End User provides Number Networks with an appropriate exemption certificate. Tax exemption will only apply from and after the date Number Networks receives the Tax Exempt document. 10. PROHIBITED USES. Any End User use of the Services or any other action that causes a disruption in the network integrity of Number Networks or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. End User understands that neither Number Networks nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is buying the Services and/or the Equipment for its own internal use only, and shall not resell the Services or the Equipment or components thereof. 11. CHANGES TO THE AGREEMENT, SERVICES OR PLAN. Number Networks reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan ("Change of Service"). In the event of a Change of Service, Number Networks will notify the End User at least ten (10) days in advance of the date on which the Change of Service is to take effect ("Change Date"). Any Change of Service charges will be applied to the End User's account as appropriate, pro rata as calculated from the Change Date. End User can, within ten (10) days of Number Networks’ notification, send notice to Number Networks that the End User does not accept the Change of Service, and can terminate this Agreement. In such event, End User will be responsible for any sums due hereunder. If the End User does not send Number Networks notification of their desire to terminate this Agreement or uses the Services after the Change Date, the End User is deemed to have accepted and consented to the Change of Service. End User may request a Plan change at anytime, a change of service fee and other terms and conditions may apply. All Plan policies include but are not limited to the following possible charges for upgrades, downgrades or cancellations. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. Activation charges apply to all upgrades to existing Plans. For a Plan change to a Plan that requires a purchase of the Equipment, an equipment charge will apply. 12. TERMINATION. Number Networks reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, Number Networks, Number Networks’ network or other end user's use of the Services. Number Networks reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that Number Networks’ determination is final and binding on End User. Number Networks may require an activation fee to change or resume terminated or suspended Services. If Number Networks discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If End User’s Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Equipment (including but not limited to End User’s attempt to hack, disrupt, or misuse the Service), End User will be responsible for the full month’s charges including and without limitation unbilled charges, all of which immediately become due and payable. 13. PRIVACY. Number Networks is committed to respecting an End User's privacy. Once the End User chooses to provide personally identifiable information, it will only be used in the context of you’re the End User’s relationship with Number Networks. Number Networks will not sell, rent, or lease End Users’ personally identifiable information to others. Unless required by law or End User’s prior permission is obtained, Number Networks will only share the personal data the End User provides with other Number Networks entities and/or business partners who are acting on Number Networks’ behalf to complete the activities described herein. Such Number Networks entities and/or national or international business partners are governed by Number Networks’ privacy policies with respect to the use of this data. Number Networks may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, Number Networks reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either Number Networks or any company affiliated with Number Networks. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Number Networks may disclose personally identifiable information. 14. F.O.B. AND RISK OF LOSS. Unless otherwise stated on the face hereof, all shipments are F.O.B. Number Networks’ facility. Number Networks’ liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. Any losses, damages, or cost of related insurance for equipment shipped to facility shall be added to base expense. 15. RETURNS AND ADJUSTMENTS. No Equipment may be returned by the End User for any reason without prior approval of Number Networks. All returns shall be in original packaging or equivalent. End User shall be responsible for all costs related to shipping to Number Networks any Equipment that is being returned. Any Equipment returned to Number Networks without prior authorization for its return or proper packaging may be refused. Up to 30 days after initiation of Service, End User may terminate Service and receive a full refund for any Equipment costs or monthly Service fees, but not including any shipping costs, paid prior to cancellation. In order to obtain an appropriate refund, upon cancellation End User must immediately obtain a return authorization from Number Networks, return to Number Networks any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to Number Networks an amount equal to the fair retail price of the equipment minus any payments End User had previously paid specifically for said Equipment. 16. TECHNICAL SUPPORT. Number Networks provides End User technical support at its sole discretion and as limited to the Services and the Equipment provided hereunder. Technical support is rendered from Number Networks’ or a partner's premises, as available via email. Support for other applications and uses is not provided or implied. 17. BREACH. In the event of an End User's breach of the terms of this Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse Number Networks for all attorney, court, collection and other costs incurred by Number Networks in the enforcement of Number Networks’ rights hereunder and Number Networks may keep any deposits or other payments made by End User. 18. INDEMNIFICATION. End User agrees to defend, indemnify and hold Number Networks, its officers, directors, employees, affiliates, agents, vendors and any other service provider who furnishes services to End User in connection with this Agreement harmless from any claims, damages, losses, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, End User or any third party or user of End User’s Service relating to this Agreement, Service or Equipment. 19. DISCLAIMER OF CONSEQUENTIAL DAMAGES. In no event shall Number Networks or its vendors be liable for any special, incidental, indirect, punitive, or consequential damages or for any damages, including but not limited to loss of data, loss of revenue or profits, or arising out of or in connection with the use or inability to use services or products provided hereunder whether due to a breach of contract, breach of warranty, the negligence of Number Networks or its vendors or otherwise. 20. WARRANTY AND LIABILITY LIMITATIONS. Number Networks makes no warranties, express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose. Number Networks does not warrant that the Service or Equipment will be without Equipment failure, Service failure, network failure, facility failure, upgrades or modifications, relocation, loss of power, delay, interruption, error, degradation of voice quality or loss of content, data or information. Neither Number Networks nor its officers, directors, employees, affiliates, agents or vendors will be liable for unauthorized access to number networks’ or end user's transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of end user'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 Number Networks’ or its vendor's negligence. Statements and descriptions concerning the Service or Equipment, if any, by Number Networks or Number Networks’ agents or installers are informational and are not given as a warranty of any kind. Any claim against Number Networks must be made within 90 days of the event of the claim or 90 days from the termination of service, whichever is earlier and Number Networks has no liability thereafter. Number networks’ liability is limited to repair, replacement, credit or refund. Number Networks may elect to provide a refund in lieu of credit, replacement or repair. All warranties cover only the defects arising under normal use and do not include malfunctions or failures resulting from misuse, abuse, neglect, alteration, modification, improper installation, or repairs by anyone other than Number Networks. In no event shall number networks’ total liability hereunder exceed the service fees paid by end user with respect to the affected time period. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, reimbursement, or cause of action or creates any other third party beneficiary rights. 21. EXPORT COMPLIANCE. End User agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used. 22. PHONE NUMBERS AND WEB PORTAL ACCESS Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Non-Ported Numbers, Ported Numbers that are not ported out to another service provider within seven (7) days, voice mail access numbers and/or web portals assigned to the End User by Number Networks or its vendors. 23. SOFTWARE COPYRIGHT. Any software used by Number Networks to provide the Services and any software provided to the End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it except to create a backup or archival copy. 24. CRITICAL COMPONENTS. Number networks’ equipment and services are not authorized for use as critical components in life support devices or systems without the express written approval of the president of Number Networks. Life support devices or systems are those which are intended to support or sustain life and whose failure to perform can be reasonably expected to result in a significant injury to the user. Critical components are those whose failure to perform can be reasonably expected to cause failure of a life support device or system or affect its safety or effectiveness. Number networks’ equipment and services do not support 911 or other emergency functions and equipment will not function in the absence of electrical power or proper network connection and function. 25. SURVIVAL. The provisions of section 11, 17, 18, 19, 20 and 23 shall survive any termination of this Agreement. 26. NOTICES. Number Networks communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by the End User at the time of registration for the Services or as subsequently specified by the End User ("Email Address"). End User is responsible for notifying Number Networks of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. The Email Address is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that the End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruptions in the Services provided hereunder. 27. FORCE MAJEURE. Number Networks shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of Number Networks as may occur in spite of Number Networks’ best efforts. QUANTITIES ARE SUBJECT TO AVAILABILITY. In the event of production or network difficulties or product shortages, Number Networks may allocate sales, services and deliveries at its sole discretion. 28. MANDATORY ARBITRATION Any dispute or claim between End User and Number Networks arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and End User will not bring, or join a punitive or certified class action to arbitration or seek to consolidate or bring previously consolidated claims in arbitration. The arbitrator shall have no authority to award punitive damages. End User acknowledges that this arbitration provision constitutes a waiver of any right to a jury trial. All administrative fees and expenses of an arbitration initially will be divided evenly between End User and Number Networks. In all arbitrations, each Party will bear the expense of its own counsel, experts, witnesses and preparation of evidence in arbitration. The prevailing Party shall be awarded all attorneys' fees and costs attendant to each arbitration proceeding. The decision of the Arbitrator shall be final. The location of arbitration shall be Delaware, unless otherwise agreed to by both Parties in writing. 29. GOVERNING LAW. This agreement is governed by the laws of the State of Delaware. End User acknowledges and agrees that Delaware courts have jurisdiction over this agreement and End User, Delaware is an appropriate place for venue of any litigation, and that all litigation, to the extent possible, shall be in Delaware. End User and Number Networks agrees to submit to the personal and exclusive jurisdiction of the courts located within the state of Delaware. The failure of Number Networks to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. 30. ENTIRE AGREEMENT. These terms and conditions (but expressly not including any terms and conditions of End User's documents, including any purchase order) constitute the entire agreement with regards to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to said sale. This agreement shall be binding upon the heirs, successors, and assigns of the parties hereto. Last updated February 15, 2004.
