This agreement ("Agreement")
is between Foneca Inc. ("FonecaVoIP") and you ("End User"). The FonecaVoIP and
any related services or products provided by FonecaVoIP to the End User
("Services") shall be governed by the terms and conditions herein. By activating
the Services, the End User acknowledges receiving, reading and understanding
this Agreement and accepts the terms and conditions herein. End User
acknowledges that they are of legal age to enter into this Agreement.
1. TERMS
AND CONDITIONS. The terms and conditions stated herein are in lieu of and
replace any and all terms and conditions set forth in any documents issued to
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 FonecaVoIP, AND ANY
SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED
HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON FonecaVoIP. No waiver or
amendment to this contract or these terms and conditions shall be binding on
FonecaVoIP unless made in writing expressly stating that it is such a waiver or
amendment and signed by an officer of FonecaVoIP.
2. TERM.
The term of this Agreement ("Term") begins on the date that FonecaVoIP 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
FonecaVoIP, 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 FonecaVoIP any FonecaVoIP leased 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 FonecaVoIP an amount equal to the fair
retail price of the Equipment.
3. CHARGES
AND PAYMENTS. 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 FonecaVoIP 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. 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, FonecaVoIP may terminate the
Services and all accrued charges are immediately due plus a late fee of the
lesser of 1.0% per month or the maximum allowed by law accrued from the date of
invoice until payment in full is received by FonecaVoIP. 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.
4. 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 FonecaVoIP will also count as
PSTN minutes and be subject to the then applicable toll charges that are
associated with the Plan.
5.
TELEPHONE NUMBERS. Any telephone number provided by FonecaVoIP ("Number") to the
End User shall be leased and not sold for a period of six months. The End User
is not to use the Number with any other device other than the Equipment without
the express written permission of FonecaVoIP.
6. LOST,
STOLEN, ALTERED OR BROKEN EQUIPMENT. End User shall not modify the Equipment in
any way without the express written permission of FonecaVoIP. 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 FonecaVoIP 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 FonecaVoIP of any lost or stolen Equipment and shall
cooperate with FonecaVoIP in all reasonable aspects to eliminate actual or
potential unauthorized use of the Equipment. At
FonecaVoIP's sole option, failure to report lost or stolen equipment in a
timely manner will cause End User to be responsible for all service fees accrued
until the time that FonecaVoIP is informed of the loss or theft and can affect a
termination of the Services.
7. 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
FonecaVoIP. End User will provide such credit information or assurance as is
requested by FonecaVoIP at any time. FonecaVoIP, in its sole discretion and
judgment, may discontinue credit at any time without notice.
8. TAXES.
Quoted prices do not include any customs duties, sales, use, value added,
excise, federal, state, local, public utility or other similar taxes. 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 FonecaVoIP with an appropriate
exemption certificate.
9.
PROHIBITED USES. Any End User use of the Services or any other action that
causes a disruption in the network integrity of FonecaVoIP or its vendors,
whether directly or indirectly, is strictly
prohibited and could result in termination of the Services. End User understands
that neither FonecaVoIP 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. FonecaVoIP's
Service Plans for residential subscribers that offer unlimited minutes of PSTN
calls ("Unlimited PSTN Plans") are for the personal and residential use of the
End User only. Such use shall not include certain activities including but not
limited to any autodialing, continuous or extensive call forwarding, continuous
connectivity, fax broadcast, fax blasting, telemarketing or any other activity
that would be inconsistent with personal, residential use patterns. End User
agrees to notify FonecaVoIP if usage of the Unlimited PSTN Plans changes from
personal residential use. FonecaVoIP reserves the right to immediately terminate
or modify the Services of any End User using Unlimited PSTN Plans if FonecaVoIP
determines, in its sole discretion, that the End User is not using the Unlimited
PSTN Plans for End User's personal, residential and reasonable business use.
10.
COMMERCIAL USE. End User agrees that the use of the Service and/or Equipment for
activities other than personal, residential use will obligate the End User to
pay FonecaVoIP higher rates for business services for all periods of such use,
including past periods, in which End User used the Service for commercial or
governmental purposes. FonecaVoIP reserves the right to immediately terminate or
modify the Service, if FonecaVoIP determines, in its sole
discretion, that End User's use of the Service is for non-residential or
commercial use.
11.
CHANGES TO THE AGREEMENT, SERVICES OR PLAN. FonecaVoIP 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, FonecaVoIP
will notify the End User at least seven (7) 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
FonecaVoIP's notification, send notice to FonecaVoIP
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 in addition to any applicable disconnection fees. If the End User does
not send FonecaVoIP 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. FonecaVoIP 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, FonecaVoIP, FonecaVoIP's network or other
end user's use of the Services. FonecaVoIP reserves the right to determine, at
its sole discretion, what constitutes misuse of the Services and End User agrees
that FonecaVoIP's determination is final and binding
on End User. FonecaVoIP may require an activation fee to change or resume
terminated or suspended Services.
13.
PRIVACY. FonecaVoIP 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 FonecaVoIP.
FonecaVoIP 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, FonecaVoIP will only share the personal data the End User provides
with other FonecaVoIP entities and/or business partners who are acting on
FonecaVoIP's behalf to complete the activities
described herein. Such FonecaVoIP entities and/or national or international
business partners are governed by FonecaVoIP's
privacy policies with respect to the use of this data. As a publicly traded
company, FonecaVoIP is required to file numerous reports with different
administrative bodies. As such, FonecaVoIP may provide aggregate statistics
about customers, sales and traffic patterns. None of these reports or statistics
will include personally identifiable information. However, FonecaVoIP reserves
the right to use personally identifiable information to investigate and help
prevent potentially unlawful activity that threatens either FonecaVoIP or any
company affiliated with FonecaVoIP. Moreover, upon the appropriate request of a
government agency, law enforcement agency, court or as otherwise required by
law, FonecaVoIP may disclose personally identifiable information.
14.
CANCELLATION, RETURNS AND ADJUSTMENTS. No Equipment may be returned by the End
User for any reason without prior approval of FonecaVoIP. All returns shall be
in original packaging. End User shall be responsible for all costs related to
shipping to FonecaVoIP any Equipment that is being returned. Any Equipment
returned to FonecaVoIP without prior authorization for its return or proper
packaging may be refused. Up to 15 days after initiation of Service, End User
may terminate Service and receive a full refund for any returned Equipment, but
not including any shipping costs. In order to obtain an appropriate refund, upon
cancellation End User must immediately obtain a return authorization from
FonecaVoIP, return to FonecaVoIP 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 FonecaVoIP an
amount equal to the fair retail price of the equipment minus any payments End
User had previously paid specifically for said Equipment. Despite any
cancellation, End User is responsible for payment of all service fees and long
distance charges incurred while using the service. If customer cancels, within
the first 6 months a $25 cancellation fee will be charged.
15.
TECHNICAL SUPPORT. FonecaVoIP 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 FonecaVoIP's or a
partner's premises, as available via email and telephone. Support for other
applications and uses is not provided or implied.
16.
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 FonecaVoIP for all attorney, court, collection and other costs
incurred by FonecaVoIP in the enforcement of FonecaVoIP's
rights hereunder and FonecaVoIP may keep any deposits or other payments made by
End User.
17.
INDEMNIFICATION. End User agrees to defend, indemnify and hold FonecaVoIP, its
affiliates and its vendors harmless from any claims or damages relating to this
Agreement.
18.
DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL FonecaVoIP 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 FonecaVoIP OR ITS VENDORS OR
OTHERWISE.
19.
WARRANTY AND LIABILITY LIMITATIONS. . FonecaVoIP MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER FonecaVoIP NOR ITS
VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO
FonecaVoIP's 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 FonecaVoIP's OR ITS VENDOR'S
NEGLIGENCE. ANY CLAIM AGAINST FonecaVoIP MUST BE MADE WITHIN 90 DAYS OF THE
EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS
EARLIER AND FonecaVoIP HAS NO LIABILITY THEREAFTER.
FonecaVoIP's LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR
REFUND. FonecaVoIP 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, IMPRORER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN
FonecaVoIP. IN NO EVENT SHALL FonecaVoIP'S TOTAL
LIABILITY HEREUNDER EXCEED THE SERVICE FEES PAID BY END USER TO FonecaVoIP IN
THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
20. 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.
21. PHONE
NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or
termination of the Services, End User shall relinquish and discontinue use of
any phone numbers, voice mail access numbers and/or web portals assigned to the
End User by FonecaVoIP or its vendors unless otherwise specify in this
agreement.
22.
SOFTWARE COPYRIGHT. Any software used by FonecaVoIP 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.
23.
CRITICAL COMPONENTS. FonecaVoIP's 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
FonecaVoIP. 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.
FonecaVoIP's EQUIPMENT AND SERVICES DO NOT GUARANTEE
SUPPORT 911 OR OTHER EMERGENCY FUNCTIONS AND WILL NOT FUNCTION IN THE ABSENCE OF
ELECTRICAL POWER OR PROPER NETWORK CONNECTION AND FUNCTION.
24.
SURVIVAL. The provisions of section 11, 17, 18, 19, 20 and 23 shall survive any
termination of this Agreement.
25.
NOTICES. . FonecaVoIP 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 FonecaVoIP 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.
26. FORCE
MAJEURE. FonecaVoIP shall not be liable for any delay in performance directly or
indirectly caused by or resulting from fire, flood, accident, riot, war,
government intervention, embargoes, strikes, labor difficulties, equipment
failure, late delivery by suppliers or other difficulties of FonecaVoIP as may
occur in spite of FonecaVoIP's best efforts.
QUANTITIES ARE SUBJECT TO AVAILABILITY. In the event of production or network
difficulties or product shortages, FonecaVoIP may allocate sales, services and
deliveries at its sole discretion.
27.
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.
28. 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.
