Terms of Service
- 1. SERVICE DESCRIPTION
- 2. SERVICE REQUIREMENTS
- 3. netTALK.com SERVICE 911 EMERGENCY DIALING
- 4. OTHER SERVICE DISTINCTIONS
- 5. USE OF SERVICE
- 6. CANCELLATION OF SERVICE BY YOU OR netTALK.com
- 7. BILLING AND PAYMENT FOR SERVICE
- 8. INSTALLATION OF SERVICE
- 9. INDEMNIFICATION
- 10. LIMITATIONS OF LIABILITY
- 11. WARRANTIES
- 12. DISPUTE RESOLUTION BY BINDING ARBITRATION
- 13. MISCELLANEOUS
- 14. SMS TEXTING SERVICE
- 15. SMS TEXTING ACCEPTABLE USE POLICY
- 16. AUTOMATIC RECURRING BILLING REFUND POLICY
- 17. ADDITIONAL TERMS
- 18. WIRELESS TERMS AND CONDITIONS
- 19. WIRELESS RETURN/REFUND POLICY
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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.
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2. SERVICE REQUIREMENTS.netTALK.com Service requires: (a) specialized customer premises equipment called a telephone adapter (“TK6000/DUO/DEVICES” 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/DUO/DEVICES 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.
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3. netTALK.com SERVICE 911 EMERGENCY DIALINGa. 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. b. 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.
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4. OTHER SERVICE DISTINCTIONSa. 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 TK6000/DUO/DEVICES 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 TK6000/DUO/DEVICES. 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 TK6000/DUO/DEVICES 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 TK6000/DUO/DEVICES 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.
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5. USE OF SERVICEa. Lawful, Non Fraudulent Use of Service and TK 6000/DUO/DEVICES netTALK.com will accept no more than 3 orders for netTALK.com Service per household. You agree to use the Service and TK6000/DUO/DEVICES only for lawful purposes. You will not use the Service or TK6000/DUO/DEVICES 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 TK6000/DUO/DEVICES is intended for use only in the United States. If you remove the TK6000/DUO/DEVICES 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 TK6000/DUO/DEVICES 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 TK6000/DUO/DEVICES 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 or Inconsistent with Normal Use
- 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 1,500 aggregate minutes per month, or other use which inconsistent with normal use as described in paragraph 2 below, 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 described within this section c.
- If you use the service, any feature or the device in a way that is inconsistent with the normal use for your service, feature or plan, you will be required, at netTALK .com’s sole discretion, to pay the rates for the service, feature or plan that would apply to the way you used the service, feature or device, or terminate the plan. For example, if you subscribe to our residential service plan, and your usage is inconsistent with normal residential use, you may thereafter be required to pay our applicable, metered rates that netTALK.com applies for commercial service for all future use of our service for the device that was inconsistent with normal residential use. Unlimited voice services are provided primarily for continuous live dialog between two individuals. Lack of continuous dialog activity, unusual call patterns, excessive conferencing or call forwarding, excessive calling to inflated tariff areas, excessive numbers and/or consistent excessive usage will be considered indicators that use may be inconsistent with normal use, or that impermissible use may be occurring and may trigger an account review or further action by us. We may determine inconsistent use based on material deviations from the usage patterns and levels of most of our customers using the same and/or similar service plans, features or devices. Failure to contact netTALK.com in response to its notifications and/or failure to promptly correct usage activity to conform to normal use will result, in netTALK.com’s sole discretion, in immediate mandatory transfer to another appropriate plan (which may be higher in cost), suspension or termination of service. You acknowledge that if your service is terminated under this provision, you are subject to all applicable disconnection and recovery charges. Additional information as to what is considered reasonable use can be found in www.nettalk.com/reasonableusepolicy.
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6. CANCELLATION OF SERVICE BY YOU OR netTALK.com.You may cancel the Service in accordance to our RETURNS POLICY. 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 TK6000/DUO/DEVICES (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 TK6000/DUO/DEVICES 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 fee. If you received a device (TK6000/DUO/DEVICES, netTALK.com Equipment) with associated service, and you do not activate that service within 60 days of the device being shipped from netTALK, then the service offered with the device is considered cancelled, and service can only be provided by purchasing a service plan.
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7. BILLING AND PAYMENT FOR SERVICEa. netTALK.com will render to you monthly on-line call detail records for netTALK.comService, 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 and/or international rate table associated with your offer and/or subscription. 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/DUO/DEVICES directly from netTALK.com, netTALK.com also reserves the right to charge for shipping and handling charges associated with the TK 6000/DUO/DEVICES. 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/DUO/DEVICES once you receive it. Where you purchase the TK 6000/DUO/DEVICES directly from netTALK.com, once your order is processed and the Service is provisioned, we will ship you the TK 6000/DUO/DEVICES by mail, and will begin billing for the Services promptly after the TK 6000/DUO/DEVICES shipment date (we refer to this date as the “Service Activation Date”). You are encouraged to complete installation of the TK 6000/DUO/DEVICES 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/DUO/DEVICES 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. Service Suspension, Termination and Restoration We may suspend or terminate your Account, and may terminate this Agreement, if you fail to renew your service prior to the expiration date, or if you fail to meet any or all of your payment obligations. Failure to renew Services or any suspension or termination shall result in the loss of Customer’s access to Services and benefits, including but not limited to: (1) Customer shall be required to add credit in order to make calls to the U.S. and Canada; (2) Customer will lose access to the telephone number associated with its Account; (3) Customer will not be able to receive calls unless Customer purchased a phone number. In addition, if the Customer fails to renew Services or if the Service is suspended or terminated due to non-payment, Customer will be required to pay the applicable re-activation fee. The Company may, in our sole discretion, choose to restore or re-establish our provision of Services, which have been suspended or disconnected for failure to renew or nonpayment of charges, prior to payment of all charges due. Such restoration or re-establishment shall not be construed as a waiver of our right to receive full payment for all charges due or any rights to suspend or disconnect Service for failure to renew Services or nonpayment of any such charges due and unpaid or for the violation of the provisions of these Terms of Service; nor shall the failure to suspend or disconnect Service for failure to renew or nonpayment of any past due Account or Accounts operate as a waiver or estoppel to suspend or disconnect service for nonpayment of such Account or of any other past due Account. Should Service be suspended for failure to renew Services or nonpayment of charges, it will be restored when appropriate payments are made and at our discretion.
- Service Disconnection on Number Transfer or “Port”.
- Single line Accounts. You may be able to take, or “port,” your current number to another service provider. If you ask your new service provider to port a number from us, we will terminate our service for that number promptly after we receive notification from our competitive local exchange carrier that the porting of your number to your new service provider has been completed successfully. We will terminate our service in this fashion even if you have not independently called us to request disconnection. Once your service is terminated in this manner, you will remain responsible for all charges and fees through the end of the current billing cycle, including any unbilled charges, as well as for any applicable disconnection or recovery fees that may be applicable as provided in. If a port is unsuccessful for any reason, then unless you independently call us to request disconnection or unless we determine to disconnect your line as stated in these Terms of Service, your service and your agreement with us will not terminate, you will remain a Nettalk customer, and you will continue to be responsible for all charges and fees associated with your Nettalk service.
- Multiple-line Accounts. If you request your new service provider to port a number from us and you have multiple numbers assigned to your account and/or additional devices such as the Softphone on your account, you are required to inform us, by calling us, of your intent to terminate all the services on your account, prior to the successful completion of the requested port or we will select the most appropriate billing plan for any remaining numbers and/or devices on your Nettalk account, and you will continue to be responsible for all the charges and fees associated with the remaining services on your Nettalk account. Once the port of the requested number is completed, you will remain responsible for all charges and fees through the end of that billing cycle, including any applicable disconnection fees and recovery fees that may apply to the ported number.
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8. INSTALLATION OF SERVICE.netTALK.com does not make available home wiring solutions.
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9. INDEMNIFICATIONYOU 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.
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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.
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11. WARRANTIESEXCEPT 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.
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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.
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13. MISCELLANEOUSa. 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 866-967-1063 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/DUO/DEVICES 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 contacting us: www.nettalk.com/contact; 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.
- (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.
- 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.
- Should Prepaid MOU limit be exceeded, the customer may add additional funds in the form of Talk Credits which will allow the customer to continue making calls, and the Talk Credits available will automatically be reduced accordingly. Customers may add these additional talk credits as needed.
- 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/DUO/DEVICES 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/DUO/DEVICES or any NET TALK.COM INC. produced hardware device obtained from us to replace the original TK6000/DUO/DEVICES 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.
- 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.
- 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 866-967-1063. 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.
- 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.
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2.4.1 Immediately upon our notice to You in accordance with the notice provisions set forth in Section 10 below if (i) You violate any provision of the Acceptable Use Policy or we have reason to believe that You have violated the Acceptable Use Policy, (ii) there is an unusual spike or increase in Your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding. 2.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is invalid or charges are refused for such payment mechanism. 2.4.3 Five (5) days following our provision of notice to You in accordance with the notice provisions set forth in Section 10 below if You breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.2.5 Effect of Suspension or Termination.
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15. netTALK – SMS Texting Service – Acceptable Use PolicyAs amended November 8, 2012 This Acceptable Use Policy describes actions that netTALK prohibits when You use its SMS Texting Services (the “Services”). You acknowledge and agree that this policy may be revised from time to time by netTALK at its sole discretion, with any such modifications effective when the revised Acceptable Use Policy is posted here. It is Your responsibility to review this Acceptable Use Policy frequently and remain informed about any changes to it, so we encourage You to visit this page often. This Acceptable Use Policy is governed by our Terms of Service, and all undefined terms herein shall be as defined in the Terms of Service. netTALK may in its sole discretion determine whether You are in violation of this Acceptable Use Policy. The Services may be used only for lawful purposes and may not be used for any illegal activities. As specified below, netTALK maintains the position that using the Services in an illegal, abusive or any other manner that interferes with or diminishes others’ use and enjoyment of the Services is prohibited. The following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behavior while using the Services. This list is provided by way of example and shall not be considered exhaustive.
- Adversely impacting the availability, reliability, or stability of netTALK’s Services
- Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of netTALK’s Services
- Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk to netTALK, to any user of our Services, or to any of our or their respective customers
- Using the Services in any manner that may subject us or any third party to liability, damages or danger
- Using netTALK’s Services with credentials that do not belong to You, or intentionally or unintentionally allowing others to use Your netTALK credentials
- Engaging in fraud with respect to Your account
- Using Your account to engage in fraudulent activity with respect to third parties or otherwise using Your account to bypass phone identification systems such as those by classified advertising websites
- Using any of the netTALK Properties or netTALK Marks other than as expressly permitted in the Terms of Service
- Transmitting any material that may infringe the intellectual property rights or other rights of third parties, including but not limited to trademark, copyright or rights of publicity or otherwise violating, infringing, or misappropriating the rights of any third party
- Engaging in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations such as the CAN SPAM Act of 2003, the Do-Not-Call Implementation Act and the Fair Debt Collection Practices Act.
- Using the Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted SMS or text messages.
- Use of netTALK SMS in a manner that is not designed to enhance or augment the person-to-person nature of SMS communications.
- Promoting or engaging in illegal activities
- Engaging in activities or transmitting through the Services any information that may be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age
- Harvesting or otherwise collecting information about others, including email addresses or phone numbers, from netTALK’s website without their express consent
- Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message using Your account
- Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs
- Violating or facilitating the violation of any U.S. or foreign law regarding the transmission of technical data or software
- Interfering with or disrupting networks connected to the Services or violating the regulations, policies or procedures of such networks
- Improperly engaging in activity for which the United States Federal Communications Commission has restricted or regulated with regard to proper use of the public telephony network
16. Automatic Recurring Billing Refund PolicyWe understand that for many reasons, a customer may chose not to renew their netTALK service plan. If a customer has enrolled in our automatic renewal plan, they will receive an e-mail(s), at the e-mail address given when registering, starting several weeks before the actual billing on the registered credit card takes place. When the actual charge on your credit/debit card has been made, you may still cancel the charge within 30 calendar days of the charge being made, provided the new term of your service has not commenced. If 30 days have passed since the charge was made or the new service period has started, whichever is the earlier of these two events, then no refund will be given.
17. Additional termsMany of the above terms and conditions, including the ability to contact customer support, emergency services and others will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue (AKA Zombie apocalypse) and is likely to result in the fall of organized civilization.” If complete collapse of civilization should occur as stated above, we would like you to know that netTALK values that you chose us as your service provider until the end.
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18. Wireless Terms and ConditionsEffective as of November 30, 2015 Thanks for choosing netTALK Wireless. Please read these Terms & Conditions (“T&Cs”), which contain important information about your relationship with NETTALK WIRELESS LLC., including mandatory arbitration of disputes between us, instead of class actions or jury trials. You will become bound by these provisions once you accept these T&Cs. WHO IS THIS AGREEMENT WITH? These T&Cs are an agreement between you and, NETTALK WIRELESS LLC. and our controlled subsidiaries, assignees, and agents. HOW DO I ACCEPT THESE T&Cs? You accept these T&Cs by doing any of the following things:
- giving us a written or electronic signature or confirmation, or telling us orally that you accept;
- activating, using or paying for the Service or a Device; or
- opening the Device box.
- netTALK Wireless services provided to you (“Services”);
- Any equipment for which we provide Service, such as a phone, handset, tablet, or SIM card (collectively, a “Device”);
- Any charges, taxes, fees, and other amounts we bill you or that were accepted or processed through your Device (“Charges”);
- Privacy information;
- Network management practices;
- Limitations of liability; and
- Resolution of disputes by arbitration and class action waiver.
- Make changes to your account;
- Add or remove services or features to your account;
- Receive notices and disclosures on your behalf;
- Purchase Devices for use with our Service, including under an installment plan; and
- Incur Charges on your account.
- Please check our coverage maps, which approximate our anticipated coverage area outdoors. Your experience on our network may vary and change without notice depending on a variety of factors. For more information, click here. You agree that we are not liable for problems relating to Service availability or quality.
- For more information about roaming, click here.
- To provide the best possible experience for the most possible customers, we prioritize the data usage of a small percentage of our Unlimited high-speed data customers who use the highest amount of data below that of other customers in times and locations where there are competing customer demands for network resources. Click here for more information.
- Additionally, we may implement other network management practices, such as caching less data and deploying streaming video optimization technology. For more information on video optimization, click here.
- Our Open Internet Policy includes important information on these topics as well as information on commercial terms, performance characteristics (such as expected speed, latency and packet loss) and network practices.
Other Terms Regarding Dispute Resolution*HOW CAN I DISPUTE MY CHARGES? If you have any questions about your bill or want to dispute any Charges, please contact us by visiting www.nettalkconnect.com, or by writing to Connect On Customer Relations, 1080 NW 163rd Drive, Miami, FL 33169. If this does not fix things, please notify us in writing. Unless otherwise provided by law, you must notify us in writing of any dispute regarding your bill or Charges to your account within 60 days after the date you first receive the disputed bill or Charge. If you don’t, you may not pursue a claim in arbitration or in court. If you accept a credit, refund or other compensation or benefit to resolve a disputed bill or Charge, you agree that the issue is fully and finally resolved. Unless otherwise provided by law, you must pay disputed Charges until the dispute is resolved. *CHOICE OF LAW This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which your billing address in our records is located, without regard to the conflicts of laws rules of that state. Foreign laws do not apply. Arbitration or court proceedings must be in: New York City, New York State. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. *DISCLAIMER OF WARRANTIES Except for any written warranty that may be provided with a netTALK Wireless Device you purchase from us, and to the extent permitted by law, the Services and Devices are provided on an “as is” and “with all faults” basis and without warranties of any kind. We make no representations or warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose concerning your Service or your Device. We can’t and don’t promise uninterrupted or error-free service and don’t authorize anyone to make any warranties on our behalf. This doesn’t deprive you of any warranty rights you may have against anyone else. We do not guarantee that your communications will be private or secure; it is illegal for unauthorized people to intercept your communications, but such interceptions can occur. Services or Software provided by third parties (including voice applications), 911 or E911, text to 911, or other calling or messaging functionality, may work differently than services offered by us, or may not work at all. Please review all terms and conditions of such third party products. We are not responsible for failures to connect or complete 911 calls or text to 911 messages or if inaccurate location information is provided. 911 service may not be available or reliable and your ability to receive emergency services may be impeded . We cannot assure you that if you place a 911 call or text you will be found. We are not responsible for any download, installation, use, transmission failure, interruption, or delay related to Content & Apps, or any third party content, services, advertisements, or websites you may be able to access by using your Device or the Services, even if charges for Content & Apps appear on your netTALK Wireless bill. You are responsible for maintaining virus and other Internet security protections when accessing third party Content & Apps or other services. *LIMITATION OF LIABILITY Unless prohibited by law, you and we each agree to limit claims for damages or other monetary relief against each other to direct and actual damages regardless of the theory of liability. This means that neither of us will seek any indirect, special, consequential, treble, or punitive damages from the other. This limitation and waiver also applies to any claims you may bring against any other party to the extent that we would be required to indemnify that party for such claim. You agree we are not liable for problems caused by you or a third party, or by any act of God. You also agree we aren’t liable for missed or deleted voice mails or other messages, for any information (like pictures) that gets lost or deleted if we work on your Device, or for failure or delay in connecting a call or text to 911 or any other emergency service. Except to the extent prohibited by law, all claims must be brought within 2 years of the date the claim arises. *INDEMNIFICATION You agree to defend, indemnify, and hold us and our directors, officers, and employees harmless from any claims arising out of use of the Service or Devices, breach of the Agreement, or violation of any laws or regulations or the rights of any third party by you, any person on your account or that you allow to use the Service or your Device.
Additional Terms for Prepaid CustomersYour netTALK Wireless prepaid Service account balance, if sufficient, or your active prepaid plan, gives you access to our prepaid Service for a limited amount of time; you must use your prepaid Service during the designated period of availability. To use our prepaid Service you must have a netTALK Wireless prepaid Service account balance for pay as you go service or be on an active prepaid plan. Service will be suspended when your account balance reaches zero and/or you are at the end of the time period associated with your prepaid plan. Monthly plan features are available for 30 days, however, depending on the time of day that you activate your Service or that your Service expires, your service cycle may not equal 30 full 24 hour days. Your monthly plan will automatically renew at the end of 30 days if you have a sufficient netTALK Wireless prepaid Service account balance to cover your prepaid Service plan before the first day after your service cycle. If you do not have a sufficient netTALK Wireless prepaid Service account balance, your prepaid Service will be suspended unless you move to a pay as you go plan. If you do not reinstate prepaid Service within the required period based upon your service plan, your phone number will be reallocated. The Charges for Service and the amount of time that Service is available following activation of your prepaid Service account balance may vary; see your Rate Plan for more information. Prepaid Service is non-refundable (even if returned during the Cancellation Period), and no refunds or other compensation will be given for unused airtime balances, lost or stolen prepaid cards, or coupons. You will not have access to detailed usage records or receive monthly bills.
Using Our NetworkWILL MY SERVICE VARY? WHAT FACTORS MAY AFFECT MY SERVICE? As our customer, your actual Service area, network availability, coverage and quality may vary based on a number of factors, including network capacity, terrain and weather. Outages and interruptions in Service may occur, and speed of Service varies. Devices also have varying speed capabilities and may connect to different networks depending on technology. Even within coverage areas and with broadband-capable devices, network changes, traffic volume, outages, technical limitations, signal strength, obstructions, weather, and other conditions may impact speeds and service availability. We engineer our network to provide consistent high-speed data service, but at times and at locations where the number of customers using the network exceeds available network resources, customers will experience reduced data speeds. To provide the best possible experience for the most possible customers and minimize capacity issues and degradation in network performance, we may, without advance notice, take any actions necessary to manage our network on a content-agnostic basis, including prioritizing the data usage of a small percentage of Unlimited high-speed data customers who use the highest amount of data below that of other customers in times and locations where there are competing customer demands for network resources, for the remainder of the billing cycle. Where the network is lightly loaded in relation to available capacity, a customer whose data is de-prioritized will notice little, if any, effect from having lower priority. This will be the case in the vast majority of times and locations. At times and locations where the network is heavily loaded in relation to available capacity, however, these customers will likely see significant reductions in data speeds, especially if they are engaged in data-intensive activities. We constantly work to improve network performance and capacity, but there are physical and technical limits on how much capacity is available, and in constrained locations the frequency of heavy loading in relation to available capacity may be greater than in other locations. When network loading goes down or the customer moves to a location that is less heavily loaded in relation to available capacity, the customer’s speeds will likely improve.
Roaming*CAN I ROAM ON MY DEVICE? Domestic Roaming: Your Device may connect to another provider’s network (“Off-Net”). This may happen even when you are within the netTALK Wireless coverage area. Check your Device to determine if you are Off-Net. Please do not abuse this; we may limit or terminate your Service if you do. International Roaming & Dialing: Availability and features offered for international roaming and dialing vary depending on your Rate Plan and Device. All countries may not be available for roaming and available countries may change from time to time; click here for more information about which countries are currently available for roaming. Whether roaming internationally or making and sending international calls and messages while in the U.S. (or Puerto Rico), you may be charged international rates (including for voicemails left for you and for data usage). This includes per minute rates for calls and per minute rates for calls transferred to your voicemail and the relevant data rates for data usage. You may be charged for more than one call for unanswered calls that are forwarded to voicemail regardless of whether the calls result in an actual voicemail message being left for you and regardless of whether your Device is on or off. Different rates and rounding increments apply in different countries. Click here for information on international access, rates, Services and coverage. While roaming internationally, your data throughput may be reduced and your Service may be otherwise limited or terminated at any time without notice. You are responsible for complying with U.S. Export Control laws and regulations, and the import laws and regulations of foreign countries when traveling internationally with your Device. If customer makes telephone calls to countries other than those listed in the included coverage area (i.e. outside of the US, Canada, Mexico) additional charges will apply and customer will be responsible for those additional charges.
Streaming VideoWe may deploy streaming video optimization technology throughout our network so that available network capacity can be utilized to provide a good service experience for the maximum number of customers. This technology is intended to manage data usage on the network, reduce the risk of streaming video stalling and buffering, and reduce the amount of high-speed data consumed for streaming video. Streaming video optimization improves streaming video reliability and, by reducing the amount of data used for streaming video on the network, makes room for other users to enjoy higher speeds. The streaming video optimization process is agnostic as to the streaming video content itself and to the service that provides it. While video streaming optimization happens in the background and should be indiscernible, the optimization process may minimally impact the appearance of the streaming video as displayed on a user’s device, but is very unlikely to be noticed by users in most circumstances.
Examples of Permitted and Prohibited Uses of the Service and Your DevicePermitted uses include:
- Voice calls;
- Web browsing;
- Streaming music;
- Uploading and downloading applications and content to and from the Internet or third party stores;
- Using applications and content without excessively contributing to network congestion; and
- Tethering your Device to other non-harmful devices pursuant to the terms and conditions and allotments of your Data Plan.
- Uses a repeater or signal booster other than one we provide to you;
- Compromises network security or capacity, degrades network performance, uses malicious software or “malware”, hinders other customers’ access to the network, or otherwise adversely impacts network service levels or legitimate data flows;
- Uses applications which automatically consume unreasonable amounts of available network capacity;
- Uses applications which are designed for unattended use, automatic data feeds, automated machine-to-machine connections, or applications that are used in a way that degrades network capacity or functionality;
- Misuses the Service, including “spamming” or sending abusive, unsolicited, or other mass automated communications;
- Accesses the accounts of others without authority;
- Results in more than 50% of your voice and/or data usage being off-net (i.e., connected to another provider’s network) for any 3 billing cycles within any 12 month period;
- Resells the Service, either alone or as part of any other good or service;
- Tampers with, reprograms, alters, or otherwise modifies your Device to circumvent any of our policies or violate anyone’s intellectual property rights;
- Causes harm or adversely affects us, the network, our customers, employees, business, or any other person;
- Conflicts with applicable law;
- Is not in accordance with these T&Cs; or
- Attempts or assists or facilitates anyone else in any of the above activities.
Information about What Happens if Your Device is Lost or StolenOnce you notify us that your Device has been lost or stolen, we will suspend your Service and you will not be responsible for additional usage charges incurred in excess of your Rate Plan Charges, applicable taxes, fees, and surcharges. If Charges are incurred before you notify us, you are not liable for Charges you did not authorize. However, the fact that your Device or account was used is some evidence of authorization. You may request us to investigate Charges you believe were unauthorized. We may ask you to provide information and you may submit information to support your request. If we determine the Charges were unauthorized, we will credit your account. If we determine the Charges were authorized, we will inform you within 30 days and you will remain responsible for the Charges. If you request that we not suspend your Service, you will remain responsible for all Charges incurred. We may prevent a lost or stolen Device from registering on our and other networks.
Billing InformationPlease read the following for more information about how we bill for calls, data usage and messaging, Wi-Fi usage, third party charges, taxes, and surcharges. Usage : Airtime usage is measured from the time the network begins to process a call (before the phone rings or the call is answered) through its termination of the call (after you hang up). For voice calls, we round up any fraction of a minute to the next full minute. Depending upon your Rate Plan, data usage may be rounded at the end of each data session, at the end of your billing cycle, and/or at the time you switch data plans. You may be charged for more than one call/message when you use certain features resulting in multiple inbound or outbound calls/messages (such as call forwarding, call waiting, voicemail, conference calling, and multi-party messaging). You will be charged for text, instant or picture messages, and email whether read or unread, sent or received, solicited or unsolicited. We use filters to block spam messages, but we do not guarantee that you will not receive spam or other unsolicited messages. Additional blocking options are available at www.nettalkwireless.com. Most usage and Charges incurred during a billing cycle will be included in your bill for that cycle. Some usage and Charges may be delayed to a later billing cycle, which may cause you to exceed Rate Plan allotments in a later billing cycle. Unused Rate Plan allotments expire at the end of your billing cycle. You may be billed additional Charges for certain features and services. Charges for Wi-Fi usage may differ; see your Rate Plan for more details. Taxes: You agree to pay all taxes and fees imposed by governments or governmental entities. We may not give advance notice of changes to these charges. To determine taxes & fees, we use the street address you identified as your Place of Primary Use (“PPU”). The PPU for Puerto Rico customers must be in Puerto Rico. If you did not identify the correct PPU, or if you provided an address, such as a PO Box, that is not a recognized street address, does not allow us to identify the applicable taxing jurisdiction(s) or does not reflect the Service area associated with your telephone number, you may be assigned a default location for tax purposes. Except as may be otherwise required by law, in the event you dispute your PPU or the location we assigned you and the resulting taxes or fees applied on your bill, you must request a refund of the disputed tax or fee within 60 days of the date of our bill containing such tax or fee. Regardless of any rate plan guarantee, taxes and fees may change from time to time without notice. Surcharges : You agree to pay all surcharges. Surcharges are not mandated or imposed on you by law, they are netTALK Wireless Charges that are determined, collected and retained by us. The components and amounts of the surcharges are subject to change without notice. Surcharges include charges, costs, fees and certain taxes that we incur to provide Services (and are not government taxes or fees imposed directly on our customers). Examples include general and administrative fees (such as certain costs we incur to provide Service) as well as governmental-related assessments (such as Federal or State Universal Service fees, regulatory or public safety charges, and gross receipts taxes). Surcharges assessed to you may vary depending on the type of Service you have. Surcharges will apply whether or not you benefit from the programs, activities or services included in the Surcharge. You can find the surcharges in either the “Taxes, Fees & Surcharges”, “netTALK Wireless Fees and Charges” or the “Other Charges” sections of your bill. Regardless of any rate plan guarantee, surcharges may change from time to time without notice.
Additional Software License TermsExcept as permitted by applicable law, you may not assign, transfer, sublicense, copy, reproduce, redistribute, resell, modify, decompile, attempt to derive the source code of, or reverse engineer all or any part of the Software, or alter, disable or circumvent any digital rights management security features embedded in the Software. The Software may not be transferable from one Device to another Device. You may not create derivative works of all or any part of the Software. You agree the Software contains proprietary content and information owned by netTALK Wireless, its licensors, and/or other third parties. netTALK Wireless, its licensors, and such other third parties reserve the right to change, suspend, terminate, remove, impose limits on the use or access to, or disable access to, the Software at any time without notice and will have no liability for doing so. You agree that your violation of the Software license harms netTALK Wireless, its licensors, and/or other third parties, which cannot be fully redressed by money damages, and that netTALK Wireless, its licensors, and such other third parties shall be entitled to immediate injunctive relief in addition to all other remedies available.
Additional TermsIf we don’t enforce our rights under this Agreement in one instance, that doesn’t mean we won’t or can’t enforce those rights in any other instance. Except as provided in the Section entitled “How Do I Resolve Disputes with netTALK Wireless”, if any part of the Agreement is held invalid that part may be severed from the Agreement. You can’t assign or transfer the Agreement or any of your rights or duties under it without our written consent. We may assign or transfer all or part of the Agreement, or your debts to us, without notice. You understand that the assignment or transfer of all or any part of this Agreement or your debt will not change or relieve your obligations under this Agreement. The Agreement is the entire agreement between you and us regarding the rights you have with respect to your Service, except as provided by law, and you cannot rely on any other documents or statements by any sales or service representatives or other agents. The original version of the Agreement is in English. To the extent there are conflicts between the English version and any other language version, the English version will control. Please be advised of the following:
- Only U.S. phone numbers can be assigned to a SIM card.
- SIM cards can only be shipped and activated within the U.S. or Puerto Rico. If you attempt to activate your SIM card outside the U.S., it will not work. However, once activated, it will be able to travel to any of the other offered countries.
- A restocking fee may apply if returned. Please read our return/refund policy for full details at nettalkwireless.com/return-refund-policy.php.
- Existing T-Mobile customers do not qualify for this offer at this time.
- Service plans are for business customers. By purchasing, you hereby agree you are ordering service for a business.
- Shipped SIM cards must be activated within 14 days of receiving the SIM card or 14 days plus 5 days shipping time, whichever is the earlier of the two. Failure to activate the SIM within the aforementioned time will result in forfeiture of the account and monies paid.
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19. Wireless Return/Refund PolicyWhen a SIM card is ordered, it creates a binding agreement between the Customer and netTALK Connect Wireless. Nevertheless, a partial or full fee refund may be available under certain conditions as follows:
- Before shipment: If the customer cancels the order before it is fully processed (Usually within 24-48 hours of payment), a Full Refund can be given. (For immediate contact with company about any cancellation request, please email [email protected] or use our “submit a ticket” system to send us an email – 24 hours a day, 7 days a week.)
- After shipment: Once the SIM Card has been shipped. A full refund is no longer possible. However, if netTALK is informed of the need to return the SIM card before the time limits set forth in 3. below, and if the SIM card is returned within 30 daysof receipt (at the Customer’s expense), and the SIM card has not been activated and/or used, and/or damaged, a 25% restocking fee will be applied. If the SIM card has been activated and/or used and/or damaged, then no refund will be made.
- Shipped SIM cards must be activated within 14 days of receiving the SIM card or 14 days plus 5 days shipping time, whichever is the earlier of the two. Failure to activate the SIM within the aforementioned time, or notice given to netTALK of intention to return within this time will result in forfeiture of the account and monies paid.
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