Terms of Service

netTALK.com Inc. Subscriber Agreement
This Agreement ("Agreement") is between netTALK.com Inc., and an end user of netTALK.com's enhanced voice communications services as described below. This Agreement governs both the services described below and any devices provided by netTALK.com for use in conjunction with the services, including but not limited to the "netTALK.com Equipment" (as defined herein). In this Agreement, "you" and "your" mean the customer of the netTALK.com services defined below, and "netTALK.com," "we," "our," and "us" mean netTALK.com Inc., and any netTALK.com affiliates authorized to provide you with netTALK.com services. BY ENROLLING IN, ACTIVATING, USING, OR PAYING FOR THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING THOSE PERTINENT TO 911 EMERGENCY DIALING, AND TO THE PRICES, CHARGES, TERMS AND CONDITIONS PROVIDED TO YOU WITH RESPECT TO THE SERVICE DURING THE SERVICE REGISTRATION PROCESS, INCLUDING IN MARKETING AND INFORMATIONAL MATERIALS ASSOCIATED WITH YOUR OFFER, AND ON THE netTALK.com SERVICE WEB SITE, ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THE AFOREMENTIONED TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES IMMEDIATELY BY CALLING netTALK.com AT 1-800-983-8289 FOR FURTHER DIRECTIONS. CERTAIN TELEWORKER OFFERS WILL CONTAIN ADDITIONAL TERMS AND CONDITIONS WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND WILL GOVERN IN THE EVENT OF A CONFLICT WITH THE TERMS OF THIS AGREEMENT.

1. SERVICE DESCRIPTION.  netTALK.com Service is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol ("IP") and carried, in part, over high-speed Internet access, also known as broadband Internet service. This service may be generically referred to as "voice over IP". It is separate and distinct from standard netTALK.com Local, Local Toll and Long-Distance services. "Service" or "Services" is defined to include Voice over IP calling and certain calling and call management features or advanced features associated with the Service, including additional features or advanced features which netTALK.com, in its sole discretion, may add, modify, or delete from time to time.

2. SERVICE REQUIREMENTS.  netTALK.com Service requires: (a) specialized customer premises equipment called a telephone adapter ("TK 6000" or "netTALK.com Equipment") obtained through netTALK.com or a third party that allows connectivity from a regular telephone handset (which you need to supply) to your broadband connection and which you are responsible for installing yourself pursuant to instructions provided to you by netTALK.com or a third party supplier; and (b) a broadband connection via cable modem (2-way cable) or DSL with broadband capability of at least 128 Kbps upstream speed that you have a right to use at your own expense. Since voice over IP is dependent on the broadband connection, the availability of an adequate power supply and correct TK 6000 configuration, netTALK.com does not guarantee that the service will be continuous or error-free. In addition, Service may, from time to time, be interrupted for equipment, network, or facility upgrades or modifications.


3. netTALK.com SERVICE 911 EMERGENCY DIALING

a. PLEASE READ THE INFORMATION BELOW ABOUT 911 DIALING CAREFULLY. BY USING AND PAYING FOR THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO ALL OF THE INFORMATION BELOW REGARDING THE LIMITATIONS OF netTALK.com 911 EMERGENCY DIALING SERVICE, AND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR e911 CALLS.
netTALK 911 service is different from traditional wireline 911 and cellular/wireless 911, but it is a safe and reliable means of emergency dialing that may differ depending on where you are located, and the device used, when using your netTALK.com service.
netTALK.com customers have access to Enhanced 911 (E911), basic 911 or our national emergency call center. With E911 service, when you dial 911 your netTALK.com phone number and registered address is sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary. With basic 911, when you dial 911, local emergency operators answering the call may not see your netTALK.com telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your netTALK.com telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Once local emergency centers are capable of receiving our customers' information, we automatically upgrade customers with basic 911 to E911 service.
If you do not have access to either basic 911 or E911 for any reason, your 911 call will be sent to the netTALK.com national emergency call center, where a trained agent will ask for your name, telephone number, and location, and then transfer you to the local emergency center nearest to your location.
We require you to provide the physical address where you will be using our service for 911 purposes. For E911 and basic 911, this address is used to route 911 calls to your local emergency center. When you initially provide your physical address, it can take up to 120 minutes to verify your address and activate 911 service at this address. You will receive an email letting you know when 911 service is activated.
If you move this device to another location, you must update your address. You may register only one location at time. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. When you update your location, it can take several hours to activate 911 service at the updated address. You will receive an email letting you know when 911 service is activated at the updated address.

Please note that our 911 Dialing service will not function in the event of a broadband or power outage or if your broadband, Internet Service Provider (ISP), or netTALK.com phone service is terminated.

YOU ACKNOWLEDGE THAT netTALK.com DOES NOT OFFER PRIMARY LINE OR LIFELINE SERVICES, AND THAT netTALK.com STRONGLY RECOMMENDS THAT YOU ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
4. OTHER SERVICE DISTINCTIONS

a. Privacy and Security
Voice over IP communication utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that netTALK.com cannot guarantee that voice over IP communication is completely secure. netTALK.com always respects your privacy and treats the content of all communications as private, except as may be required by law.

b. Power Outages
You acknowledge and understand that the Service does not function in the event of power failure. Should there be an interruption in the power supply; the Service will not function until power is restored. A power failure or disruption may require you to reset or reconfigure equipment prior to utilizing the netTALK.com Service.

c. Broadband Service Interruptions
You acknowledge and understand that the Service does not function in the event of interruption of your broadband or high speed Internet access service.

d. Home Security Systems and other Non-voice Communications Equipment
All non-voice communications equipment, including but not limited to, home security systems that are set up to make automatic phone calls, fax machines, modems and medical monitoring devices, may not be compatible with netTALK.com Service. By accepting this Agreement, you waive any claim against netTALK.com for interference with or disruption of such systems due to the Services.

e. Local Number Portability
In the event you are not utilizing a new phone number for your netTALK.com Service, but rather are transferring an existing phone number, which currently is subscribed to a carrier other than netTALK.com for local, local toll and/or long distances telecommunications services, to netTALK.com Service, the terms and conditions of this paragraph shall apply:

        1) you hereby authorize netTALK.com to process your order for netTALK.com Service and to notify your local telephone company of your decision to switch your local, local toll and long distance services to netTALK.com Service, and represent that you are authorized to take this action;

        2) you agree and acknowledge that if you set up your TK 6000 prior to the date that the number switch becomes effective ("Port Effective Date"), you will be able to make outgoing calls only over the phone you have connected to the TK 6000. In such event, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able to both make and receive calls using the netTALK.com Service; and

        3) you agree and acknowledge that if your TK 6000 is not yet activated as of the Port Effective Date, your existing phone service for the number you are transferring will be disconnected you will have no service for that line. Therefore, to avoid an interruption in your phone service, it is extremely important that you install the TK 6000 prior to, or on, the Port Effective Date. An estimate of the Port Effective Date will be sent to you via e-mail by netTALK.com following your completion of the ordering process.

5. USE OF SERVICE

a. Lawful, Non Fraudulent Use of Service and TK 6000
netTALK.com will accept no more than 3 orders for netTALK.com Service per household. You agree to use the Service and TK 6000 only for lawful purposes. You will not use the Service or TK 6000 for any unlawful, abusive, or fraudulent purpose, including, for example, using the Service in a way that (1) interferes with our ability to provide Service to you or other customers; or (2) avoids your obligation to pay for communication services. If netTALK.com has reason to believe that you or someone else is abusing the Service or using it fraudulently or unlawfully, we can immediately suspend, restrict, or cancel the Service without advance notice. The TK 6000 is intended for use only in the United States. If you remove the TK 6000 to a country other than the United States and attempt to use the Service from there, you do so at your own risk, including the risk that such activity violates local laws in the country where you do so. netTALK.com reserves the right to terminate your service immediately and without advance notice if you violate the above restrictions, leaving you responsible for all outstanding charges, all of which immediately become due and payable.

b. Theft of netTALK.com Equipment or Service
You agree to notify netTALK.com immediately, in writing or by calling the netTALK.com customer support line, if the TK 6000 is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the TK 6000 theft or stolen or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you.

c. Prohibited Uses of Service
You are expressly prohibited from reselling or transferring the Service or netTALK.com Equipment to any other person for any purpose, without express written permission from netTALK.com in advance. In addition, you are expressly prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for uses that result in excessive usage inconsistent with normal residential or home office usage patterns. If netTALK.com determines, in its sole discretion, that you are reselling or transferring the Service or that your Service is being used for any of the aforementioned activities, netTALK.com reserves the right, without advance notice, to immediately terminate or modify the Service, or to change your calling plan to a different offer on a prospective basis, and in addition, to assess additional charges for each month in which excessive usage occurred. If you subscribe to a calling plan which included unlimited calling of any type, unless otherwise specified by your specific plan in marketing materials associated therewith, any usage in excess of 5,000 aggregate minutes per month, taking into account all types of calling in your plan which are provided on an unlimited basis, shall be presumed to be not consistent with these restrictions and shall be subject to the conditions above.

d. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and TK 6000 and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the TK 6000, and all Services, information, documents and materials on netTALK.com's web site(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "Marks") of netTALK.com are and shall remain the exclusive property of netTALK.com and nothing in this Agreement shall grant you the right to right or license to use such Marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the TK 6000, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the TK 6000 is exclusively for use in connection with the Service. If you decide to use the Service through an interface device not provided by netTALK.com, which netTALK.com reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless netTALK.com against any and all liability arising out of your use of such interface device with the Service.

e. Tampering with the TK 6000
You agree not to change the electronic serial number or equipment identifier of the TK 6000, or to perform a factory reset of the TK 6000, without express permission from netTALK.com in each instance. netTALK.com reserves the right to terminate your Service should you tamper with the TK 6000.

6. CANCELLATION OF SERVICE BY YOU OR netTALK.com.  You may cancel the Service at any time by calling 1-800-983-8289 and notifying the netTALK.com customer service representative. If for any reason you cancel netTALK.com Service or if netTALK.com cancels the Service pursuant to the terms of this Agreement, netTALK.com will provide instructions on how to return the TK 6000 (netTALK.com Equipment). If you receive the netTALK.com Equipment associated with your netTALK.com Service free of charge and you do not subscribe to netTALK.com Service within one months of your receipt of the TK 6000 or you cancel your netTALK.com Service at any time, netTALK.com reserves the right to request that You return the netTALK.com Equipment to netTALK.com at netTALK.com's expense. In such case, if you do not return the netTALK.com Equipment within 16 days of the earlier of (i) the date that netTALK.com requests the return of the netTALK.com Equipment or (ii) the date of your Service cancellation, you will be charged a disconnect fee.

7. BILLING AND PAYMENT FOR SERVICE

a. netTALK.com will render to you monthly on-line call detail records for netTALK.com Service, with the following charges:

1. A onetime flat fee for unlimited local/long distance calling, call features, and advanced service. Depending on the specific calling plan to which you subscribe, other types of calls, such as in-state, state-to-state, or outbound international calling, may either be included in the monthly service flat fee on an unlimited basis, or may carry additional per-minute rates. All such rate information will be described in the marketing materials associated with your offer.

2. Any additional calls which are not included in the onetime fee, will be charged on a per minute usage basis. You can view the rates for international calls placed over netTALK.com Service at http://www.netTALK.com.com/.
3. Depending on your calling plan and method of installation, you may also be charged for activation, early termination, plan change, separate features, modifying features on your account, inside wire and installation, disconnect and/or other fees, as further described in the marketing materials pertinent to your offer. If an early termination fee applies to your offer, it will not apply if you cancel your service less than 30 days or more than one year after the date we commence billing for your service. You may incur charges or experience a change in the terms of your plan offer if you change your phone number after your netTALK.com Service has been activated. Where you obtained your TK 6000 directly from netTALK.com, netTALK.com also reserves the right to charge for shipping and handling charges associated with the TK 6000.

If, in addition, you also receive traditional non-Voice over IP netTALK.com local, local toll and/or long distance services, the charges for these services will not appear on the same online bill. You will continue to be separately responsible for those charges.

All fees and charges will be billed in advance except for usage-based charges and any other charges which netTALK.com decides to not advance bill, all of which will be billed monthly, in arrears. netTALK.com reserves the right to increase the frequency of your billing if at any time the amount you owe netTALK.com for the Service exceeds $75.

b. Payment Method for Online Bills
You authorize netTALK.com to charge any amounts payable by you in connection with your use of the Service automatically by credit card. Your right to use the Service is subject to any limits established by your credit card issuer. Your charges and credits issued in accordance with Section 7(a) above will appear on an online billing statement that you may access from the netTALK.com web site at www.netTALK.com. You give netTALK.com permission to obtain authorization for use of your credit card from your credit card issuer.

c. Commencement of Billing
You understand that you are responsible for self-installing the TK 6000 once you receive it. Where you purchase the TK 6000 directly from netTALK.com, once your order is processed and the Service is provisioned, we will ship you the TK 6000 by mail, and will begin billing for the Services promptly after the TK 6000 shipment date (we refer to this date as the "Service Activation Date"). You are encouraged to complete installation of the TK 6000 promptly because you will be responsible for full payment for the charges on your netTALK.com bill even if you have not yet installed the TK 6000 and used the Service at the time the bill is rendered.

d. Price Changes
We may change the prices and charges for the Services and/or international calling from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Services and/or international calling are effective no sooner than fifteen days after we post them on our web site at http://www.NetTALK.com.. Increases to charges that recover our costs associated with government programs are effective no sooner than 3 days after we post the increases on our web site.

e. Charges and Billing
Charges accrue through a full billing period. To determine the charge for each international call, we round up to the next full minute for any fraction of minutes used. We will determine the format of the bill and the billing period, and we may change both the bill format and the billing period from time to time.

f. Failure to Pay
We may suspend, restrict, or cancel the Services and this Agreement, without advance notice, if you do not make payments for current or prior bills by the required due date. Service suspension or cancellation will result in your loss of the number associated with the Service.

g. Late Payment Charge
We may add interest charges to any past-due amounts at the lower of 1.5% per month or the maximum rate allowed by state law, prorated for each day payment is past due. Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of our rights to collect the full amount of your charges for the Service. Notice of any disputes must be in writing and received by us within 30 days after you received your bill or you will waive any objection. You agree to reimburse us for reasonable attorneys' fees and any other costs associated with collecting delinquent or dishonored payments. If charges cannot be processed through your credit card, we will charge you an additional $15.00. If the state law where you receive the Service requires a different fee, we will charge you that amount.

h. Taxes and Other Charges
netTALK.com will charge you for and you must pay any applicable taxes, fees, surcharges or other charges associated with nationwide and international calls using the Service, unless you can show with documentation satisfactory to us that you are exempt. Taxes will be in the amounts that federal, state and local authorities require us to bill you.


i. No Credit Allowances for Interruption of netTALK.com Service
You acknowledge and agree that the Services are provided "as is." Credit allowances for interruption of netTALK.com Service, including international calling services, will not be provided.

8. INSTALLATION OF SERVICE.  netTALK.com does not make available home wiring solutions.

9. INDEMNIFICATION.  YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD netTALK.com, ITS AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, HARMLESS FROM CLAIMS OR DAMAGES RELATING TO OR ARISING OUT OF THIS SERVICE, THE TELEPHONE ADAPTER, OR ITS INSTALLATION, OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE LACK OF 911 DIALING OR DIALING ASSOCIATED WITH A SECURITY SYSTEM. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

YOU AGREE THAT netTALK.com SHOULD NOT BE RESPONSIBLE FOR ANY THIRD PARTY CLAIMS AGAINST US THAT ARISE FROM YOUR USE OF THE SERVICES. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS' FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER THE AGREEMENT ENDS.

10. LIMITATIONS OF LIABILITY.  BY ENROLLING IN, ACTIVATING, USING OR PAYING FOR THE SERVICES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE LIMITATIONS OF netTALK.com SERVICE DESCRIBED HEREIN.
netTALK.com'S LIABILITY TO YOU ON ACCOUNT OF ANY ACT OR OMISSION OF netTALK.com RELATED TO THIS AGREEMENT, INCLUDING ACTS OR OMISSIONS RELATED TO 911 DIALING, SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR ATANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY netTALK.com'S INTENTIONAL MISCONDUCT OR RECKLESSNESS. EXCEPT FOR DAMAGES THAT ARE THE DIRECT RESULT OF netTALK.com'S WILLFUL OR INTENTIONAL MISCONDUCT, YOU WILL NOT BE ENTITLED TO ANY OTHER DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS OR REVENUE OR OTHERWISE REGARDLESS OF THE FORM OF ACTION. netTALK.com AND OUR EMPLOYEES, AGENTS, CONTRACTORS AND REPRESENTATIVES WILL HAVE NO LIABILITY WHATSOEVER FOR LOSS OF PROFITS OR REVENUE OR ANY DAMAGES OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF, ANY OF YOUR SOFTWARE, FILES, DATA OR PERIPHERALS.

netTALK.com SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES RESULTING FROM INSTALLATION WORK PERFORMED BY YOU OR BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY WIRING, SOFTWARE DOWNLOAD OR OTHER WORK ASSOCIATED WITH ENABLING THE SERVICE OR CREATING EXTENSIONS THERETO.

11. WARRANTIES.  EXCEPT AS THIS AGREEMENT EXPRESSLY STATES, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE MATERIALS ACCOMPANYING THE EQUIPMENT, WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICES OR EQUIPMENT OR ANY INSTALLATION SERVICE AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, netTALK.com EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION.  IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY. THIS SECTION DOES NOT APPLY TO RESIDENTS OF CALIFORNIA.

a. Binding Arbitration
The arbitration process established by this section is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16. You have the right to take any dispute that qualifies to small claims court rather than arbitration. All other disputes arising out of or related to this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved by final and binding arbitration. This includes any dispute based on any product, service or advertising having a connection with this Agreement and any dispute not finally resolved by a small claims court. The arbitration will be conducted by one arbitrator using the procedures described by this Section. If any portion of this Dispute Resolution Section is determined to be unenforceable, then the remainder shall be given full force and effect.

The arbitration of any dispute shall be conducted in accordance with the American Arbitration Association's ("AAA") Supplementary Procedures for Consumer-Related Disputes, as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. You have the right to be represented by counsel in arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.

NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE BARRED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS' FEES UNLESS SUCH DAMAGES OR FEES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND NetTALK.com BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.

b. Arbitration Information and Filing Procedures
Before you take a dispute to arbitration or to small claims court, you must first contact our customer account representatives at the customer service number on your netTALK.com bill for the Services, or write to us at NetTALK.com, 1100 NW 163RD DRIVE SUITE B4  MIAMI FL 33169, and give us an opportunity to resolve the dispute. Similarly, before netTALK.com takes a dispute to arbitration, we must first attempt to resolve it by contacting you. If the dispute cannot be satisfactorily resolved within sixty days from the date you or netTALK.com is notified by the other of a dispute, then either party may then contact the AAA in writing at AAA Service Center, 134555 Noel Road, Suite 1750, Dallas, Texas 75240-6620 and request arbitration of the dispute. Information about the arbitration process and the AAA's Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org, or by contacting us at netTALK.com, 1100 NW 163RD DRIVE SUITE B4 MIAMI FL 33169. The arbitration will be based only on the written submissions of the parties and the documents submitted to the AAA relating to the dispute, unless either party requests that the arbitration be conducted using the AAA's telephonic, online, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in the state of your primary residence. Arbitrations under this Agreement shall be confidential as permitted by federal law. By notifying netTALK.com within twenty days after commencing an arbitration proceeding, you may elect to relieve both parties to the arbitration of confidentiality obligations.

c. Fees and Expenses of Arbitration
You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. The AAA's filing fee and administrative expenses for a document arbitration will be allocated according to the AAA's Rules, except as stated herein, for claims of less than $10,000, you will only be obligated to pay a filing fee of $20 and we will pay all of the AAA's other costs and fees. For claims between $10,000 and $75,000, you will pay a fee to the AAA of no more than $375, and we will pay all of the AAA's other costs and fees. If you elect an arbitration process other than a document ("desk") or telephone arbitration, you must pay your allocated share of any higher administrative fees and costs for the process you select. If you request such an alternative process, or for claims of $10,000 or greater, netTALK.com will also consider, upon receiving your request and on a case-by-case basis, paying some or all of the AAA's fees and expenses that you would otherwise be allocated under the AAA's rules. You also may ask the AAA about the availability of a pro bono arbitrator and/or a waiver or deferment of fees and expenses from the AAA; more information about the AAA's rules and policies is available at the AAA's web site, which is www.adr.org. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production and presentation of evidence. If you prevail before the arbitrator, however, you may seek to recover the AAA's fees and the expenses of the arbitrator from us. If we prevail before the arbitrator, and if we show that you acted in bad faith in bringing your claim, then we may seek to recover the AAA's fees and expenses of the arbitrator from you.

13. MISCELLANEOUS

a. No Third Party Rights
This Agreement does not provide any third party with a remedy, claim, or right of reimbursement.

b. Acts Beyond Our Control
Neither you nor we will be responsible to the other for any delay, failure in performance, loss or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control, except that you must pay for any Services used.
c. Assignment
We can assign all or part of our rights or duties under this Agreement without notifying you. If we do that, we have no further obligations to you. You may not assign this Agreement or the Services without our prior written consent.

d. Notices
Notices from you to netTALK.com must be provided as specified in this Agreement. Notice from you to netTALK.com made by calling netTALK.com at 1-800-983-8289 is effective as of the date that our records show that we received your call. netTALK.com's notice to you under this Agreement will be provided by one or more of the following: posting on our web site, recorded announcement, bill message, bill insert, newspaper ad, postcard, letter, call to your billed telephone number, or e-mail to an address provided by you.

e. Separability
If any part of this Agreement is found invalid, the rest of the Agreement will remain valid and enforceable.

f. Governing Law
This Agreement is governed by the Federal Communications Act to the extent applicable, and otherwise This Agreement will be governed by the law of the State of Florida, without regard to its choice of law rules, except that the arbitration provisions in Section 11 are also governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services.

g. Entire Agreement
This Agreement constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements or proposals concerning the Service, including representations, whether written or oral. This Agreement can only be amended as provided in Section 7(d) and Section 13(h) herein. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor netTALK.com is relying on any representations or statements by the other party or any other person that are not included in this Agreement.

h. Changes to this Agreement
netTALK.com may change this Agreement from time to time. If we make any changes to the prices or charges, we will comply with our notice commitments described in this Agreement. IF YOU CONTINUE TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICES AFTER ANY CHANGES IN THE PRICES, CHARGES, TERMS OR CONDITIONS, YOU AGREE TO THE CHANGES.

Where required by law in specific states, and subject to the requirements thereof, customers who cancel their service within the first three, five, seven, fifteen or other number of days specified by state law, as applicable, following acceptance of this Agreement, will be refunded all charges incurred with respect to their account.
Addendum to General terms and conditions for promotional lifetime service offering

Definitions:
"Equipment" refers to a base unit such as the TK6000™ personal netTALK telecommunications device as well as other equipment offered through our website. Descriptions of our Equipment and the prices for the Equipment are published on our website, and those descriptions and prices may be modified without notice and are incorporated by reference into this Agreement.
"High Speed Internet" refers to an internet connection capable of data speeds of at least 384 kilobits downstream and 256 kilobits upstream.
"Basic Services" include reasonable residential calls, as described in the general terms and conditions, to the United States/Canada for the life of the Equipment subject to the terms and limitations of this Agreement.
1 Purchase and Licensing of Equipment

• (a) Purchase of Equipment: When you enter this Agreement, you are purchasing or have purchased Equipment. You will own the Equipment and bear all risk of loss of, theft of, casualty to or damage to the equipment from the time that we ship it to you until the time (if any) that it is returned to us in accordance with this Agreement. You agree to the limits on use of the equipment, as set forth herein.
• (b) Subject to the limitations in this Agreement, purchase of certain NetTALK devices includes the capability to make calls that terminates within the United States and Canada using the device during the life of the device. Any and all references on NetTALK packaging, in sponsored advertising, on the NetTALK web site, in third party marketing materials and/or in any other context or location that refer to the provision of "free" calling and/or "service for life" and/or "unlimited" service and or "free home phone service" and/or "free U.S./Canada calling with no monthly fees" shall be narrowly construed as providing the customer with the ability to make a reasonable amount of calls within the United States consistent with normal residential use for the life of the product, and within any limits established according to NetTALK's general terms and conditions, and are subject to the terms and limitations of this Agreement. These calls will be routed using the Internet Protocol over your High-Speed internet connection and are subject to the characteristics described in Paragraph 3 below.
• (c) Calls within the United States do not include international calls, or calls to the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, the Virgin Islands, American Samoa, Wake Island, the Midway Islands, Kingman Reef, Johnston Island, and certain other locations within the North American Numbering Plan Area, nor do they include calls to content providers (e.g., 900, 976), premium services (such as 411) or operator assisted calls (such as 0+, 00+). NetTALK may choose to block toll calls or charge the customer for reimbursement of charges associated with calls if such calls result in atypical termination costs and/or surcharges, including, but not limited to, calls to phone chat services, 900 numbers, or recorded messages (such as those promoted in connection with reality TV shows, radio contests, or celebrity-sponsored recordings). Your ability to continue to make long-distance calls is contingent upon your continuing to subscribe to a High-Speed internet service.
• (d) License of Firmware and Software: With your purchase of the Equipment, we grant to you a nontransferable, revocable license to use firmware or software embedded in the equipment in object code form (without making any modification thereto) strictly in accordance with this Agreement. We do not grant any license to use the firmware or software in any other manner, and you expressly agree that the Equipment is exclusively for use in connection with the capability to make long-distance calls, described above, and Services offered by NetTALK, described below. You shall not reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software.
• (e) Return of Equipment and Refund:
• (i) Purchases Directly from NetTALK: If you bought your Equipment directly from NetTALK, you may return the Equipment to us within 30 days of the date you received the Equipment and we will refund the purchase price to you, provided that you (1) return all of the equipment that you purchased from us within the 30-day period in original condition, original packaging preferred; (2) deactivate your account with us within the same 30-day period; (3) return original proof of purchase with the device(s), together with all parts, and accessories; (4) obtain a valid return authorization number from our customer care department prior to returning the device to us by calling 800-983-8289; and (5) pay all costs of shipping the device(s) back to us. You may return Equipment for a refund only once.
• (ii) Retail Customers: If you bought your Equipment from a retail store, dealer, or other provider ("Retailer"), rather than directly from NetTALK, you may not return the Equipment to us. If permitted by the Retailer, you may return the Equipment to the Retailer, in which case the return will be subject to the Retailer's return policy.

2 Services

• (a) We offer additional services with certain subscription packages, and from time-to-time we may add, alter or eliminate various services.
• (b) Term: The term for each additional Service will begin on the date it is activated and will continue until the additional Service is terminated by you or by us, as is more fully set forth herein. Notwithstanding the preceding sentence, in some cases, the description of additional Services or the pricing for additional Services may provide for or require an initial minimum term. Likewise, the sale of an item of Equipment at a particular price may require as a condition a minimum initial term for an addition al Service. The initial minimum term may be described on our web site, or where you purchase the Equipment or when you activate the additional Service(s). The provision for any such minimum term is incorporated into this Agreement by reference.
• (c) Trial offers and special promotions: NetTALK may offer its customers free trials of individual or bundled services as special promotions from time to time. Such services are not guaranteed and can be modified, extended, altered, or cancelled by NetTALK at any time without notice. You will be notified when these features and services are due to expire. Should you fail to notify NetTALK of your intention to cancel the use of these promotional features and services beyond the trial period, you may be charged fees for continued usage.
• (d) Enhanced Services: From time to time, NetTALK may offer its customers additional enhanced features and services for a one-time or monthly fee. The specific enhanced services and associated fees will be posted on our web site at http://faq.nettalk.com/ and are incorporated by reference herein. You agree not to use or access such services except during the free trial period. Should you continue to use or access such services beyond the expiration of the trial period, you will be deemed to have subscribed to such services and may be charged the associated fees for use of such services. Failure to pay such associated charges may result in suspension, temporary cancellation, or termination of your account without notice. NetTALK may choose to modify, extend, alter, or cancel enhanced services at any time without notice.

3 Additional terms and conditions
Any item or condition not specifically addressed or covered under this addendum will be subject to the general terms and conditions that NetTALK provides for all services and product.

 

Warranties

1. Limited Equipment Warranty: We provide a limited warranty on the Equipment as to manufacturing defects for a period of ONE year from the date of purchase. This Limited Warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, damage by a Retailer, damage from dropping, abuse, water damage, electrical or lightning, or from other types of customer handling. This warranty does not cover any voice quality problems related to the customer's high-speed Internet connection. Your sole remedy for any breach of this limited warranty is to obtain a repaired or replacement item of Equipment. You must include with the returned Equipment a letter stating that you are returning the equipment for warranty repair or replacement and state the nature of the defect. The capability to use the TK6000 or any NET TALK.COM, INC. produced hardware to make long-distance calls, as described and qualified in subparagraph 1(b), will continue with any TK6000 or any NET TALK.COM INC. produced hardware device obtained from us to replace the original TK6000 or any NET TALK.COM, INC.produced hardware device under this warranty. This Limited Warranty does NOT cover cost of shipment. You must be registered with NET TALK.COM, INC.as the primary account holder of record to exercise rights under this paragraph.

2. Option to extend Limited Equipment Warranty: During the ordering process, the customer has the option to extend the Limited Warranty to a total five-year period for a one-time charge. The same terms and conditions apply to that extended limited warranty as apply to the one year warranty with exception to the actual length in time of the Limited Warranty. Should the customer subscribe to a Monthly Service Bundle during the first year of service, the terms of the Limited Warranty will survive and extend from the first year of coverage for such continuous period of time as the customer continues to pay the fees associated for such Monthly Service Bundle. Any interruption in the customer's subscription to, or payment of associated service fees in connection with, the Monthly Service Bundle will result in immediate cancellation and suspension of coverage from the extended Limited Warranty.

3. Requests for Replacement Device: To request a replacement device under the terms of this paragraph, the customer is required to contact a member of NET TALK.COM, INC.Customer Support at 1-800-983-8289. The customer must provide a valid credit card (American Express, Mastercard, or Visa). NET TALK.COM, INC.will ship a replacement device along with a shipping label to return the damaged or broken device. The customer is required to return the damaged or broken device within 14 days of receipt of the replacement device or the credit card on file will be charged. Should NET TALK.COM, INC.determine that the damaged or broken device is not covered under the terms of this paragraph, the customer will have 14 days to return the replacement device or the credit card on file will be charged for the cost of the replacement device plus associated taxes and shipping fees.

4. No Other Warranties: OTHER THAN THE LIMITED EQUIPMENT WARRANTY EXPRESSLY SET FORTH ABOVE, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, ON THE EQUIPMENT, USE OF THE EQUIPMENT, OR ON ANY SERVICE. THIS DISCLAIMER OF WARRANTIES INCLUDES, BUT IS NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE EQUIPMENT OR ANY SERVICES WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, OR THAT THE FIRMWARE OR SOFTWARE IS ERROR FREE. ANY STATEMENTS AND DESCRIPTIONS CONCERNING THE EQUIPMENT OR SERVICES BY NET TALK.COM, INC.OR ITS AGENTS OR REPRESENTATIVES ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.