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| Terms and Conditions of Web Site Use
Effective 1/29/2008
CONSENT TO MONITORING AND DISCLOSURE
TouchTone is under no obligation to monitor the information residing on or transmitted to this server. However, anyone using this server agrees that TouchTone may monitor the server contents periodically to (1) comply with any necessary laws, regulations or other governmental requests; (2) to operate the server properly or to protect itself and its users. TouchTone reserves the right to modify, reject or eliminate any information residing on or transmitted to its server that it, in its sole discretion, believes is unacceptable or in violation of these Terms and Conditions.
Should any user of information on this server provide TouchTone with information, including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, such information shall be deemed to be nonconfidential and TouchTone assumes no obligation to protect such information from disclosure. The submission of such information to TouchTone shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by TouchTone for any purpose whatever and TouchTone shall be free to reproduce, use, disclose and distribute the information to others without restriction.
DISCLAIMER OF LIABILITY
THE USER OF THIS SYSTEM ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS SERVER AND THE INTERNET GENERALLY. TOUCHTONE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OR VIA, THIS SERVER OR THE INTERNET, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. TOUCHTONE DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS DISCLOSED ON THE SERVER OR OTHER MATERIAL ACCESSIBLE FROM THE SERVER. IN NO EVENT SHALL TOUCHTONE BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE INFORMATION ON THIS SERVER OR THE INTERNET GENERALLY.
NO WARRANTIES
Any TouchTone material on this server may include technical inaccuracies or typographical errors. TouchTone has the right to make changes and updates to any information contained within this server without prior notice.
THE INFORMATION PROVIDED ON THIS SERVER IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY TOUCHTONE COMMUNICATIONS, INC., ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. NEITHER TOUCHTONE NOR ITS AFFILIATES WARRANTS THAT THE INFORMATION ON THIS SERVER OR ON THE INTERNET GENERALLY WILL BE UNINTERRUPTABLE OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THIS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
DISCLAIMER OF ENDORSEMENT
Reference herein to any products, services, processes, hypertext links to third parties or other information by trade name, trademark, manufacturer, supplier or otherwise does not necessarily constitute or imply its endorsement, sponsorship or recommendation by TouchTone. Product and service information is the sole responsibility of each individual vendor. The TouchTone name and logo and other trademarks and trade names owned by TouchTone may not be used in any commercial manner without the prior written consent of TouchTone.
Terms and Conditions for Communication Services
Updated 1/26/10
1. GENERAL.
1.1. Applicability. Thank you for selecting TouchTone as your provider for communications services. These Terms and Conditions contain general provisions that apply to all TouchTone Products and Services sold under a TouchTone Agreement. "Agreement" refers to the written contract signed by Customer for the purchase of TouchTone Products and Services, its attachments, these Terms and Conditions, other documents incorporated by reference, and the related Order(s). Customer's use of a particular TouchTone Product or Service is also governed by the related product or service-specific terms and conditions ("Product specific Terms").
1.2. Definitions
A. "Affiliate" is a legal entity that directly or indirectly controls, is controlled by, or is under common control
with the party. An entity is considered to control another entity if it owns, directly or indirectly, more than 50% of the total voting securities or other such similar voting rights.
B. "Commencement Date" is the first day of the first bill cycle in which TouchTone bills monthly recurring charges or usage charges. Unless defined otherwise in the Agreement, the Term begins on the Commencement Date.
C. "Effective Date" is the date both parties have signed the Agreement.
D. "Order" means a written, electronic or verbal order, submitted or confirmed by Customer and accepted by TouchTone that identifies specific TouchTone Products and Services and the quantity ordered. Verbal Orders are deemed confirmed upon Customer's written acknowledgement or use of Products or Services. "Order Term" is the term designated for an individual Order.
E. "Product(s)" includes equipment, hardware, software, cabling or other materials sold or leased to Customer by or through TouchTone as a separate item from, or bundled with, a Service.
F. "Service(s)" means communications services, including basic or telecommunications services, information or other enhanced services, provided to Customer by or through TouchTone under the Agreement, excluding Products.
G. "TouchTone" as used in these Terms and Conditions means the TouchTone company identified in the Agreement or Order as providing the specific Products or Services.
H. "TouchTone Schedule(s)" refers to Schedules that contain the terms and conditions governing TouchTone's provision of certain Services.
2. TERM. "Term" as used in these Terms and Conditions refers to the term defined in the Agreement. These Terms and Conditions apply from the Effective Date until all Orders issued during the Term have expired or terminated.
3. CHARGES.
3.1. Orders
A. Rates. During the Order Term, Customer will pay TouchTone the rates and charges for a particular Product or Service as set forth in the Agreement.
B. Cancellation. TouchTone will notify Customer of rejected Orders. Customer may cancel an Order at any time before TouchTone ships the Order or begins performance, but Customer must pay any actual costs incurred by TouchTone due to Customer's cancellation.
C. Customer Purchase Orders. The terms and conditions in any Customer-issued purchase order accepted by TouchTone will have no force or effect other than to denote quantity and the Product or Service requested.
3.2. Invoicing
A. Commencement of Invoicing. Unless otherwise specified in the Agreement, TouchTone may begin invoicing Customer in full for non-recurring and recurring charges on the later of:
(1) the date the Products or Services are installed and made available;
(2) the delivery date specified in the Order.
B. Delays. If TouchTone cannot deliver the Product or Service by the delivery date specified in the Order due to a Customer-caused delay, TouchTone may bill Customer as of the delivery date specified in the Order, or if no date is specified, any time after 30 days from the Effective Date.
3.3. Fixed Rates and Percentage Discounts. Except as expressly stated otherwise in the Agreement, rates that are stated as a flat or fixed recurring or non-recurring charge will not change during the Term if TouchTone increases or decreases the list rate in a Schedule or price list. If pricing is shown in the Agreement as a percentage discount off of a Schedule rate or list price, the percentage discount is fixed for the Term, but TouchTone may modify the underlying Schedule rate, Tariff rate or list price to which the percentage discount is applied on no less than one day's notice.
3.4. Rate Adjustments. TouchTone may adjust, at any time, its rates and charges or impose additional fees, charges or surcharges on Customer to recover amounts that it is required by governmental or quasi-governmental authorities to collect on their behalf, or to pay to others in support of statutory or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs. Examples of such charges include, but are not limited to, state and federal Carrier Universal Service Charges, PICC Fees (typically $3.99 per additional business line), Carrier Cost Recovery Fees (typically $2.97 per customer account), Toll Free Service Charges (typically $3.99 per toll free number), Account Code Maintenance Fees (fees vary; for exact breakdown please call TouchTone Customer Service at 800-266-4006), Compensation to Payphone Providers, International Mobile Termination Charges, E911 or Wireless Local Number Portability surcharges, as applicable. TouchTone may impose additional charges or surcharges, or establish new rate elements, to recover amounts TouchTone is charged for terminating or originating a call to wireless carriers.
3.5. Taxes. TouchTone's rates and charges for Products and Services do not include taxes. Except for TouchTone's income taxes and employment taxes, Customer will pay all taxes, including, but not limited to, sales, use, gross receipts, excise, property, bypass or other local, state, national taxes or charges imposed on or based upon the provision, sale or use of Products and Services.
3.6. Minimum Usage. All T-1 customers who are using voice services may be required to meet a total monthly billing requirement (as indicated in the Agreement) in total call usage charges per month for the length of the contract. This does not include any local loop charges, taxes, or any other miscellaneous charges. If the customer does not meet this requirement on any month under the contract, the customer will be billed the monthly local loop charge, any other miscellaneous monthly recurring charges, plus the difference to bring call usage charges to the minimum amount (as indicated in the Agreement). T-1 Customers who are using data services are required to pay the monthly local loop charge plus monthly bandwidth fees for the length of the contract.
3.7. Fraudulent Calls. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder. Customer shall indemnify and hold TouchTone harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying TouchTone for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event TouchTone discovers that fraudulent calls being made, TouchTone will notify Customer of the fraudulent calls and use best efforts to prevent such calls from taking place. Notwithstanding, it is understood that TouchTone is under no obligation to investigate the authenticity of calls charged to Customer's account and shall not be liable for any fraudulent calls processed by TouchTone and billed to Customer's account.
3.8 Short Duration Calls. Short Duration surcharges are defined as follows: A short duration call is defined as a call equal to or less than six (6) seconds in length. If more than 10% of your completed calls in any given billing cycle are defined as short duration calls, then TouchTone will charge an additional $0.01 surcharge per short duration call over the 10% of total monthly terminating service minutes.
Non-RBOC surcharges are defined as follows: Customer agrees to maintain at least 70% of all domestic terminating traffic to a Regional Bell Operating Company ("RBOC"). TouchTone shall have the right to apply a $0.04 per minute surcharge to the number of domestic minutes by which Non-RBOC "terminations" exceed 30% of total monthly terminating service minutes. A list of RBOC OCNs will be provided to the customer upon request.
4. PAYMENT TERMS
4.1. Payment Date. Payment is due upon receipt of TouchTone's invoice. Customer must pay all undisputed amounts no later than the due date indicated on the invoice. Except as prohibited by an applicable Tariff, state law or regulation, if Customer fails to make such payment by the due date indicated on the invoice, TouchTone may suspend or terminate the Products or Services. Customer may not offset disputed amounts from one invoice against payments due on another account.
4.2. Interest Charges. All items not subject of a bona fide dispute that remain unpaid 30 days after the due date are subject to interest at a rate equal to the lesser of 1 1/2% per month, or the maximum rate allowed by law or the applicable Tariff.
4.3. Disputed Invoice Charges. If Customer disputes a charge in good faith, it may withhold payment of that charge so long as Customer (A) makes timely payment of all undisputed charges; and (B) within 30 days of the invoice date, provides TouchTone with a written explanation of the reasons for Customer's dispute of the charge. Customer must cooperate with TouchTone to promptly resolve any disputed charge. If TouchTone determines, in good faith, that the disputed charge is valid, TouchTone will notify Customer and, within five business days of receiving notice, Customer must pay the charge. If the dispute relates to billing errors, TouchTone may credit or debit, as applicable, the net difference between any discovered overcharge or undercharge. This provision does not modify any other payment dispute provisions.
5. CREDIT APPROVAL. TouchTone's provision of Products and Services is subject to credit approval of Customer, and TouchTone may require a deposit or other form of security during the credit approval process. Additionally, if during the term of the Agreement or Order Customer's financial circumstance or payment history becomes reasonably unacceptable to TouchTone, TouchTone may require adequate assurance of future payment, including a deposit or additional deposit, advance payment or other form of security.
6. WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE APPLICABLE SERVICE LEVEL AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED "AS IS" AND TOUCHTONE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED AND IN PARTICULAR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.
7. EQUIPMENT AND SOFTWARE
7.1. Equipment or Software not provided by TouchTone. Customer is responsible for any items not provided by TouchTone (including, but not limited to, equipment or software) that impair Product or Service quality. Upon notice from TouchTone of such an impairment, Customer will promptly cure the problem. Customer will continue to pay TouchTone for Products and Services during such impairment or related suspension. If the impairment interferes with the use of TouchTone's network by TouchTone or third parties, TouchTone, in its reasonable discretion, may suspend or disconnect the affected Products and Services without advance notice to Customer, although TouchTone will provide advance notice where practical. At Customer's request, TouchTone will troubleshoot the impairment at TouchTone's then current time and materials rates. TouchTone is not liable if a commercially reasonable change in Products or Services causes equipment or software not provided by TouchTone to become obsolete, require alteration, or perform at lower levels.
7.2. Software License
A. Licensing Requirements. Where software is provided with the Product or Service, Customer is granted a non-exclusive and non-transferable license or sublicense to use the software, including any related documentation, solely to enable Customer to use the Products and Services in accordance with the applicable licensing requirements. TouchTone may suspend, block or terminate Customer's use of any software if Customer fails to comply with any applicable licensing requirement.
B. Prohibitions. Except as provided under the applicable licensing terms and conditions, Customer, as licensee, is not granted any rights to:
1. use the software on behalf of third parties or for time share or service bureau activities;
2. any source code, and will not reverse engineer, decompile, modify, enhance, or copy TouchTone-provided software, or prepare any derivative works from such software; or
3. modify the Products or Services, or combine the Products and Services with any other products or services not provided by TouchTone.
C. Copies. If TouchTone authorizes in writing the making of any software copies, the copies must reproduce the copyright or any other proprietary legends appearing on the original copy.
D. Breach of Licensing Requirements. Customer will indemnify, defend and hold TouchTone harmless from and against any third party claims arising out of Customer's breach of the licensing requirements in this Section 7.2.
7.3. Title to Software or Equipment. TouchTone or its suppliers retain title and property rights to TouchTone-provided software and equipment, whether or not they are embedded in or attached to real or personal property. Unless specifically stated in the Agreement, Customer neither owns nor will acquire any right of ownership to any TouchTone-provided hardware or software, including, but not limited to, copies, and any related patents, copyrights, trademarks, or IP addresses assigned to Customer. Upon termination or expiration of the Agreement or any Order, Customer will surrender and immediately return the TouchTone provided equipment and software, including all copies, to TouchTone or provide TouchTone access to reclaim such equipment and software.
8. USE OF NAME, SERVICE MARKS, TRADEMARKS. Neither party will use the name, service marks, trademarks, or carrier identification code of the other party or any of its Affiliates for any purpose, including, but not limited to, resale of Products or Services or press releases, without the other party's prior written consent.
9. CUSTOMER RESPONSIBILITIES
9.1. Installation. Customer will provide reasonable cooperation to enable TouchTone or its agents to install the Products and Services. Customer is responsible for damage to TouchTone-owned Products and Services located on Customer premises, excluding reasonable wear and tear or damage caused by TouchTone. Additional Customer responsibilities relating to a particular Product or Service may be defined in the applicable Product-specific Terms.
9.2. Use of Products and Services
A. Abuse and Fraud. Customer will not: (1) use Products or Services for fraudulent or destructive purposes, including, but not limited to, unauthorized or attempted access, alteration, abuse or destruction of information; or (2) use Products or Services in such a manner that causes interference with another’s use of the TouchTone network. Customer will promptly cooperate with TouchTone to prevent unauthorized access by third parties of the Products and Services via Customer's facilities.
B. Resale
(1) General. Unless otherwise provided in the Agreement and subject to any provisions governing resale in the Agreement, state or federal law and regulations, Customer represents and warrants, on behalf of itself and its Affiliates, subsidiaries, and agents, that it is not a reseller and that it does not intend to resell the Products and Services or engage in other activity that would require TouchTone to verify Customer's authorization as a reseller as required by 47 CFR 64.1195 or other law or regulation.
(2) Wireline Services. These provisions are not intended to prohibit resale of wireline services, but to require compliance with the rules and regulations of the FCC, state public utility commissions and other governmental bodies with jurisdiction over the provision of communications services for resale.
(3) Resale Terms and Conditions. The permitted resale of TouchTone wireline and Internet Services is subject to the TouchTone's Resale Terms and Conditions or Internet Service Providers ("ISP") Product Terms and Conditions.
C. Foreign Telecommunications Administrations. For certain international Products and Services, Customer must comply with any limitations or prohibitions imposed by Foreign Telecommunications Administrations ("FTAs") upon the FTA-provided portion of end-to-end international services.
D. Failure to Comply. If Customer fails to comply with any provision of this Section, Customer releases TouchTone from all liabilities or obligations in connection with the affected Product or Service, and Customer will indemnify TouchTone for all costs or damages that TouchTone incurs as a result of Customer's noncompliance.
10. CONFIDENTIAL INFORMATION
10.1. Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement, this provision will govern their exchange of information. Each party will not disclose any confidential information received from the other party, or otherwise discovered by the receiving party, to any third party, except as expressly permitted in this Agreement. This obligation will continue until two years after this Agreement terminates. Confidential information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing party's technology, business affairs, and marketing or sales plans (collectively the "Confidential Information"). Each party may disclose Confidential Information to its subsidiaries, affiliates, agents and consultants with a need to know, if they are not competitors of the disclosing party and are subject to a confidentiality agreement at least as protective of the disclosing party's rights as this provision. The parties will use Confidential Information only for the purpose of performing under this Agreement or for the provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential Information provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (A) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (B) is or becomes publicly known, through no wrongful act or omission of the receiving party; (C) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (D) is developed independently by the receiving party without reference to the Confidential Information, or (E) is required to be disclosed by law, regulation, or court or governmental order.
10.2. Customer Proprietary Network Information. As TouchTone provides Products and Services to Customer, TouchTone develops information about the quantity, technical configuration, type, destination, amount of Products and Services Customer uses, and other information found on Customer's bill ("Customer Proprietary Network Information" or "CPNI"). Under federal law, Customer has a right, and TouchTone has a duty, to protect the confidentiality of CPNI. To serve Customer in the most effective and efficient manner, TouchTone may use or share CPNI with TouchTone Affiliates for purposes of determining and offering other TouchTone products and services that may interest Customer. Customer permission to use CPNI for this purpose is valid until revoked. However, if at any time Customer seeks to stop TouchTone from using CPNI to offer products and services that are unrelated to the Products and Services Customer currently receives from TouchTone, Customer may call 1-800-266-4006. Denial of approval for TouchTone to use CPNI will not affect the provision of any current Products or Services to which Customer subscribes.
11. LIMITATIONS OF LIABILITY
11.1. Direct Damages. Each party's maximum liability for damages caused by its failure(s) to perform its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out of personal injury or death, or damage to real or personal property, caused by the party's negligent or willful misconduct; or (B) proven direct damages for all other claims arising out of the Agreement, not to exceed in any 12 month period an amount equal to Customer's total net payments for the affected Products and Services in the month preceding the month in which the injury occurred. Customer's payment obligations, liability for early termination charges, and the parties' indemnification obligations under this Agreement are excluded from this provision. Liability limitations for individually-liable wireless services are covered in the applicable Product Terms and Conditions.
11.2. Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE not LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN A WARE OF THE POSSIBILITY OF THESE DAMAGES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CLAIMS ARISING FROM THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT.
11.3. Unauthorized Access. Except for physical damage to Customer's transmission facilities or Customer premise equipment directly caused by TouchTone's negligence or willful misconduct, TouchTone is not responsible for unauthorized access to Customer's transmission facilities or Customer premise equipment by individuals or entities, or for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information through accident, wrongful means or any other cause.
11.4. Liability for Content. TouchTone is not responsible for the content of any information transmitted by, or received through, TouchTone's provision of the Products and Services.
12. INDEMNIFICATION
12.1. Personal Injury, Death or Damage to Personal Property. Each party will indemnify and defend the other party, its directors, officers, employees, agents and their successors from and against all third party claims for damages, losses, or liabilities, including reasonable attorney's fees, arising directly from performance of the Agreement and relating to personal injury, death, or damage to tangible personal property that is alleged to have resulted, in whole or in part, from the negligent or willful acts or omissions of the indemnifying party or its subcontractors, directors, officers, employees or authorized agents.
12.2. Transmission Over TouchTone Network. Customer will indemnify and defend TouchTone from and against all loss, liability, damage and expense, including attorney's fees, resulting from any third party claims alleged to arise in any way from information, data, OR messages transmitted over the TouchTone network by Customer, OR Customer's own customers or agents, including, but not limited to: (A) claims for libel, slander, invasion of privacy, infringement of copyright, and invasion OR alteration of private records or data; (B) claims for infringement of patents arising from the use of equipment, hardware OR software not provided by TouchTone; and (c) claims based on transmission and uploading of information that contains viruses, worms, OR other destructive media OR other unlawful content.
12.3. Intellectual Property. Subject to Sections 12.4 and 12.5 below, TouchTone will defend and pay all court awarded damages for claims enforceable in the United States alleging that Services as provided infringe any third party United States patent or copyright or contain misappropriated third party's trade secrets. For any third party claim that TouchTone receives, OR to minimize the potential for a claim, TouchTone may at its option and expense either:
A. procure the right for Customer to continue using the Services
B. replace or modify the Services with comparable Services;
C. or terminate the Service.
12.4. Intellectual Property Indemnification Limitations. TouchTone's obligations under Section 12.3 above will not apply to the extent that the infringement or violation is caused by: (A) a modification to TouchTone-provided software equipment or Services by Customer (or any person or entity acting on Customer's behalf); (B) services provided to or through TouchTone by a third party; (C) the combination of TouchTone-provided Services by Customer (or any person or entity acting on Customer's behalf) with other third party products; (D) functional or other specifications that were provided by or requested by Customer; or (E) Customer's continued use of infringing Services after TouchTone provides reasonable notice to Customer of the infringement.
12.5. Rights of Indemnified Party. To be indemnified, the party seeking indemnification under this Section must promptly notify the other party in writing of the claim (unless the other party already has notice of the claim) and give the indemnifying party full and complete authority, information and assistance for the claim's defense and settlement. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim's settlement or defense. To be indemnified under this Section, the party seeking indemnification must not, by any act, including but not limited to any admission or acknowledgement, materially prejudice the indemnifying party's ability to satisfactorily defend OR settle the claim.
13. TERMINATION
13.1. TouchTone Right to Terminate
A. TouchTone may immediately suspend OR terminate Products OR Services OR the Agreement if:
(1) Customer fails to cure its default of the payment terms in Section 4 above; or
(2) Customer fails to cure any other material breach of the Agreement within 30 days after receiving TouchTone's written notice; or
(3) Customer fails to comply with applicable law or regulation and Customer's noncompliance prevents TouchTone's performance under the Agreement.
B. If TouchTone terminates the Agreement under Section 13.1, Customer will be liable for any Products and Services provided up to the date of termination, whether or not invoiced by the termination date, as well as any applicable early termination or shortfall liabilities.
13.2. Customer Right to Terminate. If TouchTone materially fails to provide Products or Services, Customer may terminate the affected Products or Services without early termination liability if Customer provides TouchTone with written notice of the failure and a reasonable opportunity to cure within 30 days from receipt of notice. If TouchTone fails to cure, then Customer may terminate the affected Products or Services effective 30 days after TouchTone's receipt of Customer's written notice to terminate. TouchTone's material failure does not include a failure caused by circumstances not within TouchTone's sole control, including, but not limited to, a
failure caused by a local exchange carrier other than TouchTone, Customer-provided software or equipment, or Customer.
13.3. Order Term Termination Liability
A. Calculation of Early Termination Liability. Certain Products and Services may be priced based on a minimum Order Term, which may be identified as an "Order Term," "Access Term Plan," or similar language. If Customer terminates an Order in whole or in part, before expiration of the Order Term (unless due to TouchTone's material failure), then Customer will pay the following early termination charges, which represent TouchTone's reasonable liquidated damages and not a penalty:
(1) A lump sum equal to (a) the applicable monthly charges and monthly minimum usage requirements, multiplied by the number of months remaining in the first year of the initial term, plus (b) 50% of the monthly charges, multiplied by the number of months remaining in the initial term after the first year. If any Order is terminated before the expiration of any minimum Order Term, Customer will pay TouchTone a pro rata amount, based on the number of months remaining in the minimum Order Term, of any waived installation charges; and
(2) Any liabilities imposed on TouchTone by third parties, such as local exchange carriers or PTTs, as a result of Customer' s early termination.
B. Waiver of Order Term Liabilities. Upon prior approval of TouchTone, Customer will not be liable for the early termination charges in Sections 13.3.A above, if Customer orders another Service of the same or greater monthly price with an Order Term no less than the remaining months in the initial Order Term (or one year, whichever is greater) at the same time Customer provides TouchTone with the termination notice. Such approval will be in TouchTone's reasonable discretion and based upon financial and other business considerations.
C. Repayment of Credits or Waived Charges. If TouchTone terminates an Order or the Agreement due to Customer's material breach or Customer terminates an Order or the Agreement before the end of the Term (unless due to TouchTone's material breach), Customer will repay TouchTone a pro-rata portion of any credits issued or charges waived, based upon the number of months remaining in the Term at the time of termination. This provision does not apply to service level credits issued for Service outages.
13.4. Disconnect Notice
A. Notice Requirement. FOR Domestic Services, TouchTone will have up to 30 days to complete disconnection. FOR non-Domestic Services, TouchTone may require a longer period. Customer will be responsible for all charges through the later of the 30th day after TouchTone received the disconnect notice, or the date Customer stops using the Services.
B. Forms Required. For written notice of disconnect to be effective, Customer must provide information necessary for TouchTone to complete the disconnect, such as a completed Disconnect Firm Order Commitment ("FOC") for Customer-provided access. Failure to provide such required information may result in TouchTone's revocation of Connecting Facility Assignments ("CFA") from TouchTone to the Local Exchange Carrier ("LEC") and Customer will be liable for any resulting charges imposed on TouchTone by the LEC.
14. FORCE MAJEURE. Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts beyond the control of the responsible party. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain parts or equipment from third party suppliers; cable cuts by third parties, a local exchange carrier's activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; and governmental decrees and any other cause beyond the reasonable control of a party.
15. CONFLICTS PROVISION. Federal and state Tariffs, as applicable, govern the sale of local telecommunication Services and supersede these Standard Terms and Conditions where required by law. If TouchTone withdraws any Tariff that applies to Services in this Agreement, the Tariff terms and conditions then in effect will continue to apply to this Agreement. If a conflict exists between or among provisions within the Agreement, specific terms will control over general provisions and separately negotiated or added terms, conditions or pricing will control over standardized or non-negotiated terms, conditions and pricing.
16. MISCELLANEOUS.
16.1. Independent Contractor. TouchTone provides the Products and Services in this Agreement as an independent contractor. Nothing in this Agreement will create an employer-employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees or affiliates.
16.2. No Waiver of Rights. The failure to exercise any right under this Agreement does not operate to waive the party's right to exercise that right, or any other, in the future.
16.3. No Third Party Beneficiaries. The Agreement's benefits do not extend to any third party.
16.4. Governing Laws. The Agreement will be governed by the laws of New Jersey, without regard to its choice of law principles.
16.5. Dispute Resolution
A. Arbitration. Any dispute arising out of or relating to the Agreement or Order may, at the option of the parties, be finally settled by arbitration. If, however, Subsection B (Waiver of Trial by Jury) below is held to be unenforceable by a court, then arbitration is mandatory. Any arbitration must be held in accordance with the rules of the CPR Institute for Dispute Resolution and governed by the United States Arbitration Act, 9 U.S.C. Sec. 1, et seq. All arbitration proceedings for disputes relating to Domestic Products or Services will be held in the Morris County, NJ. If the dispute relates to TouchTone's provision of Non-Domestic Products or Services, all arbitration proceedings will be conducted in the English language pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce ("ICC"). The place of arbitration for disputes related to Non-Domestic Products or Services is Morris County, NJ, USA. Any such arbitration proceeding will not include class action arbitration.
B. Waiver of Trial by Jury. The parties mutually, expressly, irrevocably and unconditionally waive trial by jury and any right to proceed in a class action or other representative capacity for any proceedings arising out of or relating to an Agreement or Order. This Subsection survives the termination of an Agreement or Order.
16.6. Assignment. Customer may not assign any rights or obligations under an Agreement or Order without TouchTone's prior written consent, except that Customer may assign the Agreement, after 30 days prior written notice, to a parent company, controlled Affiliate, Affiliate under common control or an entity that has purchased all or substantially all of Customer's assets.
16.7. Amendments. The Agreement may only be amended in a writing signed by both parties' authorized representatives.
16.8. Notice. Notices required under the Agreement must be submitted in writing to the party's address listed in the Agreement or Order and, in the case of a dispute, notices must also be sent to:
TouchTone Communications
Attn: Director of Operations
P.O. Box 135, Whippany, NJ 07981
16.9. Severability. If any provision of the Agreement is found to be unenforceable, the Agreement's unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties' original intent.
16.10. Survivability. The terms and conditions of the Agreement regarding confidentiality, indemnification, warranties, payment, dispute resolution and all others that by their sense and context are intended to survive the expiration of the Agreement will survive.
16.11. Entire Agreement. The Agreement, including these Standard Terms and Conditions, all other referenced documents, annexes, Schedules and Tariffs, or exhibits, the related Orders and the parties' mutual nondisclosure agreement, constitutes the entire agreement and understanding between the parties and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, relating to its subject matter.
Terms and Conditions of TouchTone Wireless Services
(Common Cents and Nationwide Unlimited Plans)
Effective as of March 1, 2009 or until replaced.
These terms and conditions are part of your agreement with TOUCHTONE COMMUNICATIONS for TOUCHTONE WIRELESS Services. If you activated your TOUCHTONE WIRELESS SERVICES before the effective date of these terms and conditions, these terms and conditions replace and supersede any previous terms and conditions. The terms and conditions included with your mobile phone may not be the most current version. For the most current version of the terms and conditions, please visit our website at http://www.touchtone.net/terms.htm or call Customer Care toll free at 800-266-4006.
Agreement. Your agreement ("Agreement") with TOUCHTONE COMMUNICATIONS and any of its representatives doing business as TOUCHTONE COMMUNICATIONS providing TOUCHTONE COMMUNICATIONS Services ("Services") to you is made up of these Terms and Conditions of Service ("Terms") and the Service Plan we agree to provide you. Your "Service Plan" is described in our marketing materials and includes the rates and features we set for that Service Plan. We use the words "we," "us," or "our" or “TOUCHTONE WIRELESS” to refer to TOUCHTONE COMMUNICATIONS. TOUCHTONE WIRELESS Services are provided utilizing either the Sprint PCS® Network or the Verizon Wireless® Network ("Network"). You accept the Agreement and Terms when you do any of the following: (1) sign a contract with us on paper or electronically; (2) tell us orally or electronically that you accept; (3) activate Services or attempt to use our Services (including, without limitation, attempting to place a call on the Network or off the Network when roaming, including "911" or similar calls); (4) pay for the services; (5) open any package or start any program that says you are accepting the Agreement when doing so; and (6) use your service after making any change or addition after you have been informed that continued use of the new or modified service will mean you have given us your acceptance.
Provision of Service. Your purchase of equipment from us does not mean that we must provide Services to you. We may decide not to provide Services to you for any lawful reason. We may request that you provide us with any information we reasonably require to determine whether you qualify for Services. Services in some areas are managed and provided under contract by independent affiliates of either Verizon Wireless® or Sprint PCS® with access to the Network. Some Services may not be available or may operate differently in certain Verizon Wireless® or Sprint PCS® affiliate markets.
Credit Verification. If you are making payments on your Service Plan by credit card, you must have and maintain a valid credit card to receive and continue to receive Services. We will verify that your credit card is valid before agreeing to provide Services to you and we may verify that your credit card is valid at any time while we provide Services to you. Credit card verification may include a review of credit reports that we receive from commercially available credit bureaus. If at any time we determine, in our sole discretion, that payment for Services may not be made when due, we may suspend Services to your phone and require that you provide payment on your account or a guarantee of payment before we resume Services to your phone.
Changes to Agreement. We may change this Agreement at any time (but see Service Plan). Any changes to the Agreement are effective when we publish them on our website www.touchtone.net. We will give you thirty (30) days prior notice, either in your monthly bill or separately, of any material change to this Agreement. If you use our Services on or after the effective date of the changes or make any payment to us (for services not already rendered prior to the effective date of the changes) on or after the effective date of the changes, you accept the changes. If we change a material term of the Agreement and that change has a material adverse effect on you, you may terminate the Agreement without an early termination fee by calling 1-800-266-4006 within sixty (60) days after we send notice of the change. You understand and agree that taxes, Universal Service fees and other charges imposed by the government or based on government calculations may increase or decrease on a monthly basis, and that this paragraph does not apply to any increases in such taxes, Universal Service fees and other charges.
Service Plans. TOUCHTONE COMMUNICATIONS offers month-to-month, one (1) or two (2) year Service Plans.
Service Plan. A fixed Service Plan contractually binds you to obtain Services from TOUCHTONE COMMUNICATIONS. We may offer non-identical Service Plans to different individuals or entities. Services and coverage under some Service Plans may be more limited as compared to other Service Plans. Your Service Plan sets out the charges for Services and is your Service Plan until that Service Plan is changed, you switch to a different Service Plan, or your Services terminate. Your Service Plan may require that you make a deposit, prepayment, or a series of deposits or prepayments, or be subject to an account spending limit, before Services are activated or maintained. If you are on a Service Plan, your ability to change to another Service Plan may be limited and we may require you to pay a termination fee as set out in the Termination sections of the Agreement. Any change is effective at the start of your next full billing cycle unless otherwise specified by us at the time that you place your change order. If you change or add a different Service Plan or service feature and the change is effective prior to the start of your next full billing cycle, you will be billed a prorated amount for the period during the previous billing cycle that the new Service Plan or service feature was effective. We may require a service charge for implementing any change directed by you to your Service Plan or optional service features you select.
Use of Services and Equipment; Availability. You must be at least 18 years old to subscribe to our Services. We may require you to provide proof of your age and identity. Services and equipment may not be used for any unlawful, fraudulent or abusive purpose. By requesting Services, you agree that you will not use Services and equipment in any unlawful, fraudulent or abusive manner. You may not resell or lease Services or equipment to anyone. Services are available within the operating range of the Network as depicted in our coverage maps. Coverage and quality of Services may be affected by conditions beyond our control, including atmospheric, geographic, or topographic conditions. We do not guarantee that there will be no interruptions or delays in Services. Your TOUCHTONE COMMUNICATIONS phone will not accept the services of any wireless provider other than TOUCHTONE COMMUNICATIONS (but see Roaming).
Number. We assign a phone number ("Number") to the phone or other equipment used by you on the Network. We may change the Number by giving you prior notice. You do not own the Number. You may not: (1) modify the Number we program into any phone or other equipment; (2) transfer or duplicate the Number to any phone or other equipment other than that authorized by us or as expressly allowed by the rules and regulations of the Federal Communications Commission regarding number portability; or (3) transfer the Number to any other individual or entity without our permission.
Phone Activation Fee. You may be required to pay a non-refundable phone activation fee when you activate a new handset, have us switch a Number to a different phone, or we activate a different phone on your existing account. Details on any applicable phone activation fee are set out in your Service Plan or can be obtained by calling TOUCHTONE COMMUNICATIONS Customer Care toll free at 1-800-266-4006.
Charges. You must pay, by each invoice date, all charges for Services provided to the Number for each phone or other equipment that our records show you activated no matter who actually uses or has possession of the phone or other equipment at the time Services are provided. These charges include, but are not limited to, recurring monthly service charges, applicable local and long-distance toll charges, usage charges, and connection fees, roaming charges, directory assistance, and call completion charges, optional features you select at an extra cost, and taxes and other regulatory related charges. Charges for a completed call from your Number that is dialed manually begin when you press the TALK (or similar key) and end when the call is terminated by either party. You are invoiced for these completed calls from your Number from the time shortly before the phone starts ringing until the call is terminated by either party. Charges for most Services are incurred in one-minute increments, with partial minutes of use rounded up to the next highest minute. Certain Service Plans do not include itemized message transmission detail, even for measured service. Most Services are billed to your account at a flat rate on a recurring monthly basis and you do not receive itemized message transmission detail on them.
Billing. Billing cycles are approximately thirty (30) days in length. Billing cycles and dates may change from time to time. Except as otherwise provided in your Service Plan, monthly recurring charges (MRCs) are billed one billing cycle in advance. Airtime is billed for your total usage in excess of your monthly Service Plan allotment and/or for calls outside the Network. Excess charges for Services are usually billed to your account as soon as possible after the charges accrue.
Payment. If you have authorized payment for Services or equipment by credit card or by debiting a bank account, no additional notice or consent is required before we invoice your credit card or debit your bank account, for all amounts (including any late charges, taxes or other regulatory related charges) due to us or billed by us on behalf of a third party. You must promptly notify us of any change in your address, the credit card used for payment, or the bank account used for bank debits. If we take action to receive payment beyond billing you for charges for Services or equipment, you must pay our costs and expenses of collection, including attorneys’ fees and expenses, the fees of any collection agency and court costs.
Disputed Charges. You must raise any dispute that you have about any charges billed to your credit card or bank debit account within fourteen (14) days of the date of the credit card or bank debit account statement or you have accepted the charges. You may notify us of any dispute by calling TOUCHTONE COMMUNICATIONS Customer Care toll free1-800-266-4006. Calls to our sales or general business offices are not notice of a dispute. You do not have to pay any properly disputed amounts while we investigate them; however, you must pay amounts not in dispute by the due date.
Termination. Service Plan. If you are on a Service Plan: (1) your ability to terminate Services before the end of the term is limited; (2) your ability to change to another Service Plan before the end of the term may be limited and may result in a termination and/or activation fee; (3) you may be required to pay a termination fee as liquidated damages and not as a penalty; (4) we may not terminate Services without cause before the end of the term; and (5) if we terminate Services for cause before the end of the term you may be required to pay a termination fee as liquidated damages and not as a penalty. No termination fee is charged if you terminate your Service Plan within fourteen [14] days of activation of your TOUCHTONE COMMUNICATIONS phone. You will only be billed the activation fee and the pro-rated portion of the monthly service fee. During the term of this Agreement we must give each other notice to terminate Services. At the end of your term, your Agreement automatically changes into a “Month to Month” Service Plan. At and after the expiration of the original term, you may terminate Services at any time by giving us notice and we may, subject to this Agreement, terminate Services at any time, with or without notice. If either party terminates the Agreement after the original term has expired, you agree to pay that month’s recurring charges and all other charges due and owing on your account. You also agree that you will not receive a credit or refund for any unused minutes for that month’s billing cycle. No termination fee is assessed if you terminate your Month to Month Service plan with us.
Termination, General. Regardless of whether you have a One (1) Year or Two (2) Year Service Plan, we may, without notice, terminate or suspend Services to you without liability at any time: (1) if you breach any provision of this Agreement (including if you fail to pay any charges for Services); (2) if you fail to pay any charges due us for equipment or otherwise; (3) if you incur charges in excess of a billing limit (even if we have not yet billed the charges); (4) if you harass or threaten our employees or agents; (5) if you provide false information to us; (6) if you interfere with our operations; or (7) if we believe the action protects our customer’s interests or our network. If you promptly cure the breach, we may, but are not obligated to, reactivate Services to you. You must pay all charges for: (1) Services provided before termination of a Number; and (2) equipment, regardless of who terminates Services.
Deposits. If we require a deposit for you to establish or keep Services, we will hold the deposit as partial guarantee of payment for Services. We may change the deposit at any time to reflect revised estimated monthly charges based upon your usage. A deposit may not be used to pay any bill (unless it is used to pay a final bill) or delay payment. The deposit amount, the length of time we hold the deposit and changes to the deposit amount are determined based on your credit and payment history. The rate of interest on the deposit is subject to change. We may mix deposits with our other funds. If Services are terminated for any reason, we may, without notice to you, apply your deposit toward payment of outstanding charges and any excess will be returned to you at your last known address, within seventy-five [75] days after termination of Services. If the U.S. Postal Service cannot deliver the money to you and returns it to us, we will hold it for you for one (1) year from the date of return and we may charge a monthly servicing fee against the deposit balance. Any money held during this one year period will not accrue interest for your benefit. You forfeit any portion of the money left after the one (1) year period.
Taxes and Other Regulatory Related Charges. We bill you for taxes, regulatory related obligations and other charges levied by federal, state or local authorities, or foreign government on Services, or mandated to be paid in proportion to receipts from telecommunications services provided, or on sales of equipment (except for taxes based on our net income), if we pay these taxes or other regulatory related charges, Taxes, regulatory related charges and charges not directly paid by us are not billed to you, but payment to the taxing or levying authority of any applicable taxes, regulatory related charges and charges due from you are your responsibility. If you claim any tax exemption, you must provide us with a valid tax-exempt document. Any tax exemption applies only from the date we received a valid tax-exempt document.
Roaming. Calls made outside of the Network are “roaming” calls. Your phone is specifically designed and engineered to work on the Network and on other providers’ systems only when roaming agreements are in place between either Verizon Wireless® or Sprint PCS® and the other providers. Certain features are not available when roaming. When roaming, you are subject to the limitation of liability provisions and other applicable rules imposed by the roaming service provider on its own subscribers or on roamers. Included minutes apply to calls placed and received on the Network. Roaming rates apply to calls placed and received outside the Network. Long distance charges for calls received while roaming are calculated from your home area code to the location where you received the call. Due to delayed reporting between carriers, usage may be billed in a subsequent month and will be charged as if used in the month billed. If during any two consecutive months your minutes of use on other carrier networks exceeds fifty- percent (50%) of the minutes included in your service plan, we may, at our option, terminate your service, deny your continued use of other carriers’ coverage or change your plan to one imposing additional usage charges for roaming. We will provide notice that we intend to take any of these actions and, upon receipt of such notice, you may terminate this Agreement.
Unlimited Voice Services. Unlimited voice services are provided solely for live dialog between two individuals. Unlimited voice services may not be used for conference calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of uninterrupted live dialog between two individuals. If we find that you are using an unlimited voice service offering for other than live dialog between two individuals, we may, at our option, terminate your service or change your plan to one with no unlimited usage components. We will provide you with notice that we intend to take any of the above actions, and you may terminate the Agreement.
Unlimited Data Services. Prohibited Uses. We reserve the right to limit or suspend any heavy, continuous data usage that adversely impacts our network performance or hinders access to our network. Examples of prohibited uses include the following: (i) server devices or host computer applications, including, but not limited to, continuous Web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer (P2P) file-sharing; (ii) as a substitute or backup for private lines or dedicated data connections; (iii) “auto-responders,” “cancel-bots,” or similar automated or manual routines which generate excessive amounts of net traffic, or which disrupt net user groups or email use by others; (iv) “spam” or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email); (v) any activity that adversely affects the ability of other people or systems to use either our Service or other parties’ Internet-based resources, including “denial of service” (DoS) attacks against another network host or individual user; (vi) accessing, or attempting to access without authority, the accounts of others, or to penetrate, or attempt to penetrate, security measures of our or another entity’s network or systems; or (vii) software or other devices that maintain continuous active Internet connections when a computer’s connection would otherwise be idle or any “keep alive” functions.
Interruption of Service. We may give credit for a continuous interruption of Services for more than twenty-four (24) hours on a case-by-case basis. Interruptions caused by your negligent or willful actions, or by failure of equipment or service not provided by us, or by causes beyond our reasonable control, do not qualify for credit. We may provide you with an airtime credit of one minute for a call that is disconnected because of transmission limitations caused by atmospheric, geographic or topographic conditions and that you redial within one minute of disconnection. You must notify us within twenty-four (24) hours of the disconnection to obtain credit.
Phones and Other Equipment. Phones and other equipment may be purchased and returned as provided in the purchase documents. We are not the manufacturer of the phones or other equipment and the only warranties on the phones or other equipment are limited warranties extended by the manufacturers.
Lost or Stolen Equipment. If your phone or other equipment is lost or stolen, you must notify us by calling TOUCHTONE COMMUNICATIONS Customer Care toll free at 1-800-266-4006. You are responsible for all charges for Services provided to the Number for the lost or stolen equipment before you notify us of the loss or theft. We will deactivate Services to the Number upon notification to us of any loss or theft. You may be required to provide evidence of the loss or theft (e.g., a police report or affidavit). If the equipment is later found, we may require that you exchange it for another phone or other equipment before we reactivate Services (if we elect to reactivate Services), as well as require you to pay a reactivation fee. We will deactivate Services to any Number without prior notice to you if we suspect any unlawful or fraudulent use of the Number. You agree to reasonably cooperate with us in investigating suspected unlawful or fraudulent use.
Caller ID. If you do not want people you call to receive the Number assigned by your phone, you must call TOUCHTONE COMMUNICATIONS Customer Care toll free at 1-800-266-4006 for information about automatic Caller ID blocking. The Number assigned to your phone can be blocked on a per-call basis by dialing *67 + Destination Number + TALK. Caller ID delivery resumes on the next call you make. Caller ID display on incoming calls to your Number is dependent on receiving the information from the calling party.
Pay-Per-Call Service. We will not complete calls from your Number to 900, 976 and similar numbers for pay-per-call services.
International Calling. You may be limited in the international destinations that you can call with your TOUCHTONE COMMUNICATIONS Service. Calls to international destinations are not included in your Service Plan and will be billed separately on a monthly basis. You should call TOUCHTONE COMMUNICATIONS Customer Care toll free at 1-800-266-4006 for information about international destinations that cannot be called from your TOUCHTONE COMMUNICATIONS phone.
Customer Proprietary Network Information (CPNI). Federal law protects your privacy rights as a customer of TOUCHTONE COMMUNICATIONS. Customer Proprietary Network Information (CPNI) is information we possess solely due to the customer-carrier relationship that is necessary for us to serve your telecommunications needs. CPNI is defined by the Federal Communications Commission as information that relates to the quantity, technical configuration, type, destination and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and information contained in the bills pertaining to telephone exchange or toll service received by a customer of a carrier. CPNI does not include information that is in the public domain or available from other sources (i.e., census data, subscriber list information, published directory information). Unless you specifically authorize its use, we may not use CPNI to market our services that are unrelated to the services to which you currently subscribe. We will not share CPNI with any other company, including our affiliate companies, unless you are also a customer of our affiliate, or unless you have provided authorization. CPNI can be used by us for certain purposes without your permission. We may use CPNI to offer you new or enhanced services that are related to the category of services to which you currently subscribe. We may also use CPNI to respond to your inquiry regarding services you use or related services we offer. We may also use CPNI in repair and maintenance services, billing and collection, to protect company property, and to prevent fraud. We take measures to discover and protect against attempts to gain unauthorized access to your CPNI. In so doing, we authenticate a customer prior to disclosing CPNI based on customer initiated telephone contact, online account access, or an in-store visit. We value our relationship with our customers and are committed to respecting and protecting your privacy.
Limitation of Liability. Except as otherwise provided in this section, our sole liability to you for any loss or damage arising out of providing or failing to provide Services (including mistakes, omissions, interruptions, delays, errors or defects) will not exceed: (1) in cases related to a specific piece of equipment, the prorated MRCs for Services to the piece of equipment during the affected period; or (2) in cases not related to a specific piece of equipment, the prorated MRCs for the Services to you during the affected period. We are not liable for any damage arising out of or in connection with:
a) Any act or omission of any telecommunications service or other service provider other than us;
b) Any directory listing;
c) Any dropped calls;
d) Any interruption of Services, including interruptions caused by equipment or facilities failure or shortages, transmission limitation or system capacity limitations;
e) traffic or other accidents, or any health-related claims allegedly arising from the use of Services, phone, equipment or accessories used in connection with the Services;
f) Any late or failed message delivery;
g) Any interruption or failure of 911 or E911 emergency services or identification of the Number, address, name or location associated with any person accessing or attempting to access emergency services from your phone;
h) The installation or repair of any products or equipment by parties who are not our authorized employees or agents;
i) events due to factors beyond our control, including acts of God (including, without limitation, weather-related phenomena, fire or earthquake), war, riot, strike or orders of governmental authority;
j) Any use of your phone or other equipment not authorized by you;
k) Any act or omission of any third party or independent contractor that offers products or services in conjunction with or through the Services; or
l) Your negligent or intentional act or omission.
NO CONSEQUENTIAL OR OTHER DAMAGES. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH PROVIDING OR FAILING TO PROVIDE SERVICES, PHONES OR OTHER EQUIPMENT USED IN CONNECTION WITH THE SERVICES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
Indemnification. You promise to indemnify and defend us, our partners, directors, officers, employees and agents from and against any claim, action, damage, liability and expense arising out of or in connection with: (1) your acts or omissions that occur in connection with your use of the Services or equipment used in connection with the Services; or (2) any communications you make or receive using the Services. This indemnification extends to and includes any attorneys' fees and costs incurred by us arising from any actions or claims to which this indemnification applies, or from contesting the applicability of this provision. This section survives termination of this Agreement.
DISCLAIMER OF WARRANTIES. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES ABOUT OUR SERVICES AND DISCLAIM ANY IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY TOUCHTONE COMMUNICATIONS. WE ARE NOT THE MANUFACTURER OF THE EQUIPMENT OR THE OPERATORS OF THE NETWORK AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN WRITING BY TOUCHTONE COMMUNICATIONS. THE ONLY WARRANTY APPLICABLE TO THE EQUIPMENT USED IN CONNECTION WITH THE SERVICES IS THAT PROVIDED BY THE EQUIPMENT MANUFACTURERS. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
Notices. You may get our current address for written notice by calling TOUCHTONE COMMUNICATIONS Customer Care toll free at 1-800-266-4006. Written notice to you is sent to your last known address in our invoicing records. Written notice is deemed delivered three (3) days after deposit in the U.S. mail, postage prepaid, and properly addressed. Unless required by this Agreement or Applicable Law: (1) you may notify us by calling TOUCHTONE COMMUNICATIONS Customer Care; and (2) we may notify you by leaving a message for you on your TOUCHTONE COMMUNICATIONS phone, answering machine or with your answering service. Notice addresses may be changed by giving notice as provided in this section.
Choice of Law; Jurisdiction. This Agreement is governed by, and construed under, the laws of the State of NEW JERSEY without regard to its choice of law principles. You agree to submit yourself to the personal jurisdiction of the courts of the State of NEW JERSEY.
General. If either of us does not enforce any right or remedy available under this Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the other party. Our waiver of any requirement in any one instance is not a general waiver of that requirement and does not amend this Agreement. If any part of this Agreement is held invalid or unenforceable, that part is interpreted consistent with applicable NEW JERSEY State laws as nearly as possible to reflect the original intentions of the parties and the rest of this Agreement remains in full force and effect. Section headings are for descriptive purposes only and are not intended to be used to interpret this Agreement. You may not assign this Agreement to any other person or entity without our prior written approval. This Agreement (including any referenced documents and attachments) makes up the entire agreement between you and us and replaces all prior written or spoken agreements, representations, promises or understandings between you and us. The provisions of this Agreement that are contemplated to be enforceable after the termination of this Agreement survive termination of this Agreement.
Early Termination. Service Plan. You may terminate your Agreement before the term expires by calling us toll free at 1-800-266-4006 from any phone and paying an EARLY TERMINATION FEE OF $175 or less (depending on when you terminate) per handset as liquidated damages, and not as a penalty. We may terminate the Agreement if you are in default and charge you the Early Termination Fee as liquidated damages, not as a penalty. The Early Termination Fee is payable in addition to any other outstanding charges for services or equipment on your TOUCHTONE COMMUNICATIONS account. We will not charge you the Early Termination Fee if you deactivate service within fourteen (14) days after you activated your TOUCHTONE COMMUNICATIONS phone.
TOUCHTONE COMMUNICATIONS does not manufacture the wireless devices or equipment used by customers for its services. TOUCHTONE COMMUNICATIONS disclaims any harm that may result from the use or misuse of any wireless device or equipment provided by TOUCHTONE COMMUNICATIONS for use of its Services. Verizon Wireless® and Sprint PCS® provide access to their Networks for TOUCHTONE COMMUNICATIONS subscribers but are not responsible for quality, billing, customer care, warranty, maintenance, or other aspects of subscriber service. Verizon Wireless® is a registered trademark of Verizon Wireless Communications Company L.P. Sprint PCS® is a registered trademark of Sprint PCS.
TouchTone Wireless Early Termination Fees Defined
(Contract Customers Only)
Effective 12/1/08
By signing the TouchTone Wireless Subscriber Agreement you are agreeing to maintain service with TouchTone for your minimum term as stated in the agreement. Periods of suspension of service do not count towards fulfillment of your minimum term. After the completion of your contract term, you will become a month-to-month customer under the agreement. AN EARLY TERMINATION FEE OF $175.00 WILL APPLY IF YOUR SERVICE IS ENDED BEFORE BECOMING A MONTH-TO-MONTH CUSTOMER. The Early Termination Fee will be reduced by $5.00 for each full month toward your minimum term that you complete. A month is determined from the day your TouchTone Wireless service is activated. Example: Based on a 24 month term, if service begins on 11/24/09 and is canceled as of 5/25/10, you would have completed six months of your service contract and your early termination fee would be reduced by $30.00.
You may cancel your service for any reason, and without incurring the Early Termination Fee, within fourteen (14) days of signing your Wireless Subscriber Agreement, PROVIDED, however, that if you cancel service you will remain responsible for any service fees and charges incurred. Equipment must be returned in its original packaging with all original documents and contents in “like new” condition. A restocking fee of up to 20% may apply.
The Early Termination Fee applies only to the extent permitted by law.
If you buy your wireless phone/device from an authorized agent or third-party vendor, you should check to see if they charge a separate termination fee. If you terminate your service as of the end of your minimum contract term, you will not be responsible for any remaining part of your monthly billing cycle. Otherwise, all terminations by you during a monthly billing cycle become effective on the last day of that billing cycle. You will remain responsible for all fees and charges incurred until then and will not be entitled to any partial-month credits or refunds. You may be able to take, or "port," your current wireless phone number to another service provider. If you request your new service provider to port a number from TouchTone, and TouchTone receives your request from that new service provider, TouchTone will treat it as notice from you to terminate our service for that number upon successful completion of porting. After the porting is completed, you will not be able to use TouchTone service for that number. You will remain responsible for any Early Termination Fees, and for all fees and charges through the end of that billing cycle.
TouchTone Wireless Phone and Accessory Return Policy
Effective 11/18/2008
GUARANTEE
We will happily accept returns or make exchanges on all wireless phones or devices purchased from TouchTone Wireless.
You may terminate service for any reason within 14 days of activation (“14-day period”). If you purchased equipment from us at a promotional price at the time of activation, you must return that equipment to avoid being assessed a $175 early termination fee (for details see www.touchtone.net/terms.htm). You will remain responsible for your Activation Fee. You will also be responsible for all applicable usage fees, prorated access charges, taxes, surcharges or other charges that accrued to your account through the termination date. If you paid a security deposit, it may take between 30 and 60 days to process the return of your security deposit. The charges for any service used on the account before the service termination date may be applied against your security deposit.
Service Termination
You may terminate your service for any reason with 14 days of activation. If you cancel your service after the 14-day period, but prior to the expiration of your minimum term, you will be responsible for the Activation Fee, all applicable usage fees, access charges, taxes, surcharges or other charges that accrued to your account through the termination date, including an early termination fee of up to $175 (for details see www.touchtone.net/terms.htm).
Returns
You may return any or all of your working merchandise for any reason within 14 days of activation to receive a full refund for the merchandise purchased price. In order to receive a full refund, all packages must be postmarked within 14 days from the date of activation and must be accompanied by the original customer receipt and the UPC must be intact on the original packaging. We will not accept returns with the original UPC missing from the box.
At our discretion, we may decline your return or charge you a fee for a missing item, or for items that we determine are damaged or require service. If you return and we accept your merchandise within the 14-day period, we will refund your merchandise purchase price. Purchases made by cash or check, credit card, or gift card will be refunded by check, credit card, or gift card respectively.
If you received your merchandise through a "Buy One, Get One Free" or similar offer, both items must be returned in order to receive a refund. If you received a discount based on the purchase of an item, the return of that item will result in the forfeit of the discount, which may be deducted from any refund amount.
If merchandise is returned after the 14-day period, you will not receive a refund and the merchandise may not be returned to you. THIS ALSO APPLIES to merchandise exchanges.
Because the FCC requires that carriers convert nearly all of their handsets to GPS capability, TouchTone Wireless will no longer allow non-GPS phones to be activated on our network. If you upgrade from a non-GPS capable to a GPS capable phone and then return it within the 14-day period, TouchTone Wireless will not allow the older non-GPS capable phone back on our network. We will, however, allow you to exchange your new phone for another GPS-capable device.
Before returning or exchanging any product that has data in its memory, please transfer all files you wish to retain to another file source. Once the product is returned, your files cannot be recovered.
Returning your merchandise does not automatically terminate your service. In order to cancel your service you MUST contact Customer Service at 1-800-266-4006. SEE SERVICE TERMINATION FOR DETAILS. If you purchased merchandise from another retailer, the retailer's exchange policy applies.
Exchange New Merchandise
You may exchange merchandise only once, and it must be done within the 14-day period. In order to make the exchange, return the merchandise (including phone, charger, battery, instructions, etc.) in its ORIGINAL box. All merchandise must be in “like-new” condition with the original UPC still intact. You must provide a copy of your customer receipt as proof of purchase. A $35 Device Activation Fee will apply on the new exchanged device. Shipping charges may apply to exchanged merchandise sent to you by TouchTone Wireless.
If you purchased your merchandise from another retailer, the retailer's exchange policy applies.
Eligible Defective Handset Exchanges
If your phone malfunctions as a result of a manufacturing defect after the return and exchange period but within the first year that you own the phone, TouchTone Wireless will either exchange your phone for a like unit or one of comparable quality at no cost to you, or assist you in sending the phone to the manufacturer's authorized repair facility.
If you choose to exchange your phone, the phone you receive may be refurbished or slightly used (“replacement phone”). Once you have exchanged your phone, we will not be able to undo the exchange and return your original phone to you. If you have difficulty with the replacement phone, TouchTone Wireless will replace it with another replacement phone. Replacement phones will carry the remaining warranty period from the original phone, or 90 days, whichever is greater. Unless you have enrolled in the TouchTone Wireless Protection Program, TouchTone Wireless will access a fee for equipment that is replaced due to electrical malfunction or manufacturer defect after the one-year warranty period.
Phones subjected to neglect, misuse, water damage, unreasonable wear and tear, and the like, are not eligible for any return or exchange program. This program does not cover lost or stolen phones. These policies do not limit or supersede any existing manufacturer's warranties.
OTHER
This program may be considered to be a "warranty" or "service contract" in certain states. In these states, please refer to the TouchTone Wireless Subscriber Agreement and the Wireless Terms and Conditions for full details.
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