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This
agreement ("Agreement") is between I. Q. Network Systems Inc, its
subsidiaries, affiliates and assigns, includes Net2Phone, Inc.
("we," "us" , “IQNS” or "Net2Phone") and the
user ("you," "user" or "End User") of
Net2Phone's VoiceLine Service ("Service"). This Agreement governs
both the Service and any related devices, such as an IP phone, Multimedia Terminal
Adapter, Analog Telephone Adapter or any other IP connection device,
("Device" or "Equipment") used in conjunction with the
Service. By activating the Service, you acknowledge that you have read and
understood, and you agree, to the terms and conditions of this Agreement, and
you represent that you are of legal age to enter this Agreement and become
bound by its terms. You also agree to the terms set forth by Net2Phone, Inc.,
which can be viewed on their website, www.net2phone.com. 1. TERMS AND CONDITIONS 1 Term. The Service is offered on a monthly basis for a term which begins on the date that Net2Phone activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give I. Q. Network Systems Inc written notice of non-renewal at least 5 business days prior to the end of the monthly term in which the notice is given. You are using an unlimited plan; you are pre-purchasing the Service for full monthly terms, meaning that if you terminate Service prior to the end of a monthly term, you will not be entitled to any pro rata refund of any remaining portion of your current monthly term. Expiration of the term or termination of the Service will not excuse the End User from paying any unpaid, accrued charges that are due in relation to the Agreement. 1.2 Use of the Services. The Service and Device are to be used for your personal residential
use or limited small business use. You acknowledge that the Service will not
be used for any excessive business use including, but not limited to,
auto-dialing, continuous or extensive call forwarding, continuous
connectivity, fax broadcasting, fax blasting, telemarketing (including
without limitation charitable or political solicitation or polling),
automatic dialing, call centers, public calling centers or internet cafes or
any other activity that would be inconsistent with normal residential or
small business usage patterns. If you subscribe to an unlimited calling plan,
any use in excess of 5,000 minutes per month shall be presumed to be not
consistent with the uses permitted herein. You may not resell or transfer the
Service or the Device to any other person for any purpose, or make any charge
for the use of the Service. I. Q. Network Systems Inc and Net2Phone reserves
the right to immediately terminate or modify the Service, if I. Q. Network
Systems Inc or Net2Phone determines, in its sole discretion, that the Service
is being used contrary to the provisions of this Agreement. 1.3 Lawful Use
of Service and Device. You agree to use
the Service and Device only for lawful purposes. This means that you agree
not to use them for transmitting or receiving any communication or material
of any kind when in Net2Phone's sole judgment, the transmission, receipt or
possession of such communication or material may constitute a criminal
offense, give rise to a civil liability, or otherwise violate any applicable
local, state, national or international law. Net2Phone reserves the right to
terminate your service immediately if Net2Phone, in its sole discretion,
believes that you have violated this provision. You are liable for any and
all use of the Service and/or Device by yourself and by any person making use
of the Service or Device provided to you and you agree to indemnify and hold
harmless Net2Phone against any and all liability for any such use. If
Net2Phone, in its sole discretion believes that you may have violated this
provision, Net2Phone may forward the objectionable material, as well as your
communications with Net2Phone and your personally identifiable information to
the appropriate authorities for investigation and prosecution and you hereby
consent to such forwarding. 1.4 Use of the Service and Device Outside the United
States. You agree to assume all
responsibility for use of the Service and Device outside of the United
States. If the Service and Device are used in a country other than the United
States, you do so at your own sole risk, including the risk that such
activity violates local laws in the country where you do so. You are liable
for any and all such use of the Service and/or Device by yourself or any
person making use of the Service or Device provided to you and agree to
indemnify and hold harmless I. Q. Network Systems Inc and Net2Phone against
any and all liability for any such use. I. Q. Network Systems Inc and
Net2Phone do not represent, warrant or guarantee that the Service or Device
will work outside of the United States. 1.5 Tampering
with the Device or Service. You agree not
to change the electronic serial number or equipment identifier of the Device,
or to perform a factory reset of the Device. I. Q. Network Systems Inc and
Net2Phone reserve the right to terminate your Service without refund should
you tamper with the Device. You agree not to make or attempt to make any use
of the Service that is inconsistent with its intended purpose. 1.6 Theft of Service. You agree to notify I. Q. Network Systems Inc immediately 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 responsible for all charges for the
Services until such time as you provide I. Q. Network Systems Inc with notice
of the theft or fraudulent use of the Service ACCOUNT NUMBER AND PASSWORD You
are responsible for maintaining the confidentiality of your account number
and/or password. You are responsible for all uses of your account, whether or
not actually or expressly authorized by you. 1.7 Reassignment of Number upon Service Termination.
Upon termination of the Service, Net2Phone may,
at its sole discretion, reassign a telephone number or Direct Inward Dialing
("DID") (collectively "Number") provided to you by
Net2Phone. You shall not obtain any rights, title or interest in the Number
and the Number is not portable to other service providers. The Number is not
to be used with any other device other than the Device provided by Net2Phone
and Net2Phone reserves the right to change, cancel or reassign the Number at
Net2Phone's discretion. 1.8 Service Distinctions. You acknowledge and understand that the Service is not a telephone
service. Important distinctions (some, but not necessarily all, of which are
described in this Agreement) exist between telephone service and the enhanced
Service offering provided by Net2Phone. The Service is subject to different
regulatory treatment than telephone service. This treatment may limit or
otherwise affect your rights of redress before any governmental
telecommunications regulatory agencies.
1.9 Ownership and Risk of Loss. You are purchasing the Device and therefore, are the
owner of the Device and bear all risk of loss of, theft of, casualty to or
damage to the Device, from the time it is shipped and received by you. 1.10 Intellectual Property. The Service and Device and any firmware or software
used to provide the Service or provided to you in conjunction with providing
the Service, or embedded in the Device, and all Services, information,
documents and materials on Net2Phone's website(s) are protected by trademark,
copyright or other intellectual property laws and international treaty
provisions. All websites, corporate names, service marks, trademarks, trade
names, logos and domain names (collectively "marks") of Net2Phone
are and shall remain the exclusive property of Net2Phone and nothing in this
Agreement shall grant you the right or license to use any such marks. You
acknowledge that you are not given any license to use the firmware or
software used to provide the Service or provided to you in conjunction with
providing the Service, or embedded in the Device, other than a
nontransferable, revocable license to use such firmware or software in object
code form (without making any modification thereto) strictly in accordance
with the terms and conditions of this Agreement. You expressly agree that the
Device is exclusively for use in connection with the Service and that
Net2Phone will not provide any passwords, codes or other information or
assistance that would enable you to use the Device for any other purpose. If
you decide to use the Service through an interface device not provided by
Net2Phone, which Net2Phone reserves the right to prohibit in particular cases
or generally, you warrant and represent that you possess all required rights,
including software and/or firmware licenses, to use that interface device
with the Service and you will indemnify and hold harmless Net2Phone against
any and all liability arising out of your use of such interface device with
the Service. You shall not reverse compile, disassemble or reverse engineer
or otherwise attempt to derive the source code from the binary code of the
firmware or software. 2. NON-AVAILABILITY OF EMERGENCY (911) SERVICES OR DIRECTORY ASSISTANCE SERVICES. 2.1 Non-Availability of Emergency Service or Directory Assistance. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE SERVICE IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PRIMARY LINE VOICE SERVICES OR PLAIN OLD TELEPHONE SERVICE ("POTS") AND IS NOT MEANT TO PROVIDE GUARANTEED AUTOMATIC NUMBER IDENTIFICATION OR AUTOMATIC LOCATION INFORMATION CAPABILITIES ASSOCIATED WITH 911 OR E911 EMERGENCY SERVICES OR TO PERMIT ACCESS TO 411 DIRECTORY ASSISTANCE SERVICES. You agree to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your Net2Phone Service and Device(s). I. Q. Network Systems Inc or Net2Phone will not be liable for any claim, damage, or loss, arising from the inability to contact emergency 911 services. 2.2 Alternative 911 Arrangements. You acknowledge that Net2Phone does not offer primary line or lifeline services. Net2Phone recommends that you always maintain an alternative means of accessing traditional emergency 911 services such as a POTS line or a cell phone. 3. POWER AND/OR BROADBAND SERVICE OUTAGES. 3.1 Loss of Service Due to Power Failure or Internet
Service Outage. You acknowledge and
understand that the Service will not function in the event of power failure.
You also acknowledge and understand that the Service requires a fully
functional broadband connection to the Internet (which is not provided by
Net2Phone) and that, accordingly, in the event of an outage of, or
termination of service with or by, your Internet service provider
("ISP") and/or broadband provider, the Service will not function,
but that you will continue to be billed for the Service unless and until you,
I. Q. Network Systems Inc or Net2Phone terminate the Service in accordance
with this Agreement. Should there be an interruption in the power supply or
ISP outage, the Service will not function until power is restored or the ISP
outage is cured. A power failure or disruption may require the End User to
reset or reconfigure equipment prior to utilizing the Service. 4. PAYMENT AND BILLING. 4.1 Billing. ALL CHARGES TO YOUR ACCOUNT ARE ASSESSED BY NET2PHONE, NOT I. Q. NETWORK SYSTEMS INC.. YOU ARE RESPONSIBLE TO MAKE PAYMENT IN FULL TO I. Q. NETWORK SYSTEMS INC., THE RESELLER, FOR THESE CHARGES. Call times for each call are rounded up to the next whole minute and billed in full minute increments. Per call charges are rounded up to the next whole penny. All calls for which we receive answer supervision shall incur a minimum one-minute charge. Net2Phone relies on answer supervision to determine whether and when a call has been answered. Answer supervision is a signal sent by the carrier connecting the call to indicate the start of call. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Where no answer supervision is received, we will commence billing forty (40) seconds following dial time unless the caller has terminated the call. You must notify us in writing of any disputed charges for calls on your account within sixty (60) days of the charges or you will have waived your right to dispute the charges. Funds in your account will expire if your account has been inactive for a period of 120 days. 4.2 Payment. All
Services must be prepaid to I. Q. Network Systems Inc. with a credit card. You
must provide us with a valid credit card number when the Service is
activated. I. Q. Network Systems Inc reserves the right to stop accepting
credit cards from one or more issuers at its sole discretion. If the card
expires, you close your account, your billing address changes, or the card is
cancelled and replaced for any reason, you must immediately notify I. Q.
Network Systems Inc so that you Service is not suspended. Based upon which
service plan you select, we will periodically bill your credit card for all
charges and any applicable taxes. All calls are billed in minimum one-minute
increments and all calls are rounded up to the next whole minute. 4.2.1 Unlimited/Bucket Plans. All services are prepaid with a credit card except
usage outside of your selected service plan. It is the sole responsibility of
the customer to make sure adequate funds are in their account. 4.2.2 Pay As You Go Plans. All services must be prepaid with a credit card. 4.3 Early Deactivation Fee. If you were charged a Service Activation Fee and
cancel or terminate the Service within twelve (12) months of activation, I.
Q. Network Systems Inc will charge you an Early Deactivation Fee. The Early
Deactivation Fee is $40.00 and will be billed to your credit card. I. Q.
Network Systems Inc will waive the Early Deactivation Fee after you have
completed twelve (12) months of consecutive service OR you return the
telephone adapter to I. Q. Network Systems Inc within 7 business days AND the
telephone adapter is in working order with all the documentation originally
included. 4.4 Billing Disputes. You must notify I. Q. Network Systems Inc. in writing within seven
(7) days after receiving your credit card statement if you dispute any I. Q.
Network Systems Inc. charges on that statement or such dispute will be deemed
waived. Billing disputes should be sent to the following address: I. Q.
Network Systems Inc. 220 Curtin Street
Osceola Mills, PA 16666 4.5 Payment. I. Q.
Network Systems Inc. accepts payments only by credit card as set forth in Section
4.1. Your initial use of the Service authorizes I. Q. Network Systems Inc. to
charge the credit card account number on file with I. Q. Network Systems
Inc., including any changed information given I. Q. Network Systems Inc. if
the card expires or is replaced, or if you substitute a different card, for
I. Q. Network Systems Inc. charges as set forth in Section 4.1. This
authorization will remain valid until 30 days after I. Q. Network Systems
Inc. receives your written notice terminating I. Q. Network Systems Inc.
authority to charge your credit card, whereupon I. Q. Network Systems Inc.
reserves the right to charge you any other outstanding charges and terminate
the Service. I. Q. Network Systems Inc. or Net2Phone may terminate your
Service at any time in its sole discretion, if any charge to your credit card
on file with I. Q. Network Systems Inc.
is declined or reversed, your credit card expires and you have not
provided I. Q. Network Systems Inc. with a valid replacement credit card or
in case of any other non-payment of account charges. Termination of Service
for declined or expired card, reversed charges or non-payment leaves you
fully liable to Net2Phone for all charges accrued before termination and for
all costs incurred by Net2Phone in collecting such amounts, including but not
limited to, attorney's fees and costs. 4.6 Termination/Discontinuance
of Service. I. Q. Network Systems Inc. or
Net2Phone reserves the right to suspend or terminate the Service at any time,
with or without cause and without notice to you. If Net2Phone discontinues
providing the Service without a stated reason, you will only be responsible
for charges accrued through the date of termination, including a pro-rated
portion of the final month's charges. If your Service is terminated for any
stated reason, including without limitation violation of this Agreement, or
because of any improper use of the Service or Device (such as, but not
limited to, your attempts to hack, disrupt, or misuse the Service or your
acts or omissions that violate any acceptable use policy of I. Q. Network
Systems Inc. , Net2Phone or of a third party provider to which Net2Phone is
subject), you will waive the remainder of any monthly term if you have an
unlimited plan. 4.7 Taxes.
You are responsible for any applicable
federal, state, provincial, municipal, local or other governmental sales,
use, excise, value-added, personal property, public utility or other taxes,
fees or charges now in force or enacted in the future, that arise from or as
a result of your subscription or use or payment for the Service or Device.
Such amounts are in addition to payment for the Service or Devices and will
be billed to your credit card as set forth in this Agreement. If you are
exempt from payment of such taxes, you shall provide I. Q. Network Systems
Inc. with an original certificate that satisfies applicable legal requirement
attesting to tax-exempt status. Tax exemption will only apply from and after
the date Net2Phone receives such certificate.
5. WARRANTIES AND LIMITATION OF LIABILITIES. 5.1 Disclaimer
of Warranties for Services. All Services
provided by I. Q. Network Systems Inc. and Net2Phone are provided on an
"as is" basis. I. Q. Network Systems Inc. and Net2Phone makes no warranty to you or
any other person or entity, whether express, implied or statutory, as to the
description, quality, title, non-infringement, merchantability, completeness,
or fitness for a particular purpose as to the Services provided to you, all
such warranties hereby being expressly excluded and disclaimed. I. Q. Network
Systems Inc. and Net2Phone do not
warrant that the Services are error-free or will operate without packet loss
or interruption nor does I. Q. Network Systems Inc. or Net2Phone warrant the
reliability of any connection to or any transmission over the Internet. End
user assumes total responsibility and risk for use of the Services. 5.2 Limited Warranty for Device. If End User purchased the Device new from I. Q. Network Systems Inc. and the Device included a limited warranty at the time of purchase, End User must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If End User's Device did not include a limited warranty from I. Q. Network Systems Inc. at the time of purchase, End User agrees that it accepts its Device "as is" and that End User is not entitled to replacement or refund in the event of any defect. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE, NET2PHONE MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET END USER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. 5.3 Limitation of Liability. IN NO EVENT SHALL I. Q. NETWORK SYSTEMS INC, NET2PHONE, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF NET2PHONE'S SERVICES INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, USE, DATA, GOODWILL OR BUSINESS OPPORTUNITIES OF ANY KIND OR NATURE WHATSOEVER, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO THIS AGREEMENT OR TO THE SERVICES PROVIDED BY I. Q. NETWORK SYSTEMS INC AND NET2PHONE. I. Q. NETWORK SYSTEMS INC. AND NET2PHONE'S ENTIRE LIABILITY HEREUNDER SHALL BE LIMITED TO THE PURCHASE PRICE OF THE EQUIPMENT AND SERVICES PROVIDED HEREUNDER. 5.4 Indemnification. End
User agrees to defend, indemnify, and hold harmless I. Q. Network Systems
Inc. AND Net2Phone, its officers, directors, employees and agents, from any
and all claims, losses, damages, fines, penalties, costs and expenses
(including, without limitation, reasonable attorneys fees) by, or on behalf
of, End User or any third party or user of End User's Service, relating to
this Agreement, the Services or the Device. This paragraph shall survive
termination of this Agreement. 5.5 No Third Party Beneficiaries. No provision of this Agreement provides any person
or entity not a party to this Agreement with any remedy, claim, liability,
reimbursement, or cause of action or creates any other third party
beneficiary rights. 6. GOVERNING LAW AND ARBITRATION. 6.1 Mandatory Arbitration. Any dispute or claim between End User and I. Q. Network Systems Inc. arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Clearfield or Centre County Pennsylvania and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and End User will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. END USER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL. 6.2 Governing Law. The Agreement and the relationship between you and
I. Q. Network Systems Inc. shall be
governed by the laws of the State of Pennsylvania without regard to its
conflict of law provisions. To the extent court action is initiated to
enforce an arbitration award or for any other reason consistent with Section
6.1, you and I. Q. Network Systems Inc. agree to submit to the personal and
exclusive jurisdiction of the courts located within the state of Pennsylvania
and waive any objection as to venue or inconvenient forum. The failure of I. Q.
Network Systems Inc. to exercise or enforce any right or provision of this
Agreement shall not constitute a waiver of such right or provision. If any
provision of the Agreement is found by a court of competent jurisdiction to
be invalid, the parties nevertheless agree that the court should endeavor to
give effect to the parties' intentions as reflected in the provision, and the
other provisions of the Agreement remain in full force and effect. You agree
that regardless of any statute or law to the contrary, any claim or cause of
action arising out of or related to use of the Service or the Agreement must
be filed within one (1) year after such claim or cause of action arose or be
forever barred. 6.3 Entire
Agreement. This Agreement and the rates
for Services found on Net2Phone's website constitute the entire agreement
between you and I. Q. Network Systems Inc. and govern your use of the
Service, superseding any prior agreements between you and I. Q. Network
Systems Inc. and any and all prior or
contemporaneous statements, understandings, writings, commitments, or
representations concerning its subject matter. No amendment to this Agreement
shall be binding upon I. Q. Network Systems Inc. unless and until posted in accordance with
Section 6.5 hereof. 6.4 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. 6.5 Changes to Terms of Service. I. Q. Network Systems Inc. may change the terms and
conditions of this Agreement from time to time. Any changes to this Agreement
will become binding on you effective on the date posted to the I. Q. Network
Systems Inc. website and no further
notice by I. Q. Network Systems Inc.
is required. This Agreement as posted supersedes all previously agreed
to electronic and written terms of service, including without limitation any
terms included with the packaging of the Device.
Copyright 2004, I. Q. Network Systems Inc. All Rights Reserved. Last Modified: December 05, 2004. |