Terms and Conditions
I. THE AGREEMENT
These Terms and Conditions constitute the agreement (the "Agreement") between Clicktel inc. ("Clicktel ," us, or we) and the user ("you," your¯ "user," or "Customer") of the Clicktel® residential and small business Voice over Internet Protocol (VoIP¯) communications services and any related products or services ("Service"). For purposes of the Agreement, "you" means the customer, defined as either (i) the person identified in Clicktel™s account records as responsible for payment of all charges; or (ii) any other person with actual or apparent authority to represent that person or to use the Service(s).
BY ENROLLING IN, USING, OR PAYING FOR CLICKTEL® SERVICES, YOU AGREE TO THE PRICES, CHARGES, TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE PRICES, CHARGES, TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES IMMEDIATELY BY CALLING CLICKTEL™S ACCOUNT MANAGEMENT DEPARTMENT AT THE NUMBER ON THE FIRST PAGE OF YOUR INVOICE OR FOUND ON THE "HOME PAGE" OF CLICKTEL'S WEBSITE (HTTP:\//WWW.CLICKTEL.COM) FOR FURTHER DIRECTIONS.
The Agreement governs the Service and any devices, such as the 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 understand, 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.
Clicktel may from time to time change the Terms and Conditions of this Agreement, and the rates and charges for the Service, by giving notice of the change. Notices will be considered given, and will become effective prospectively, three days after the date that the change is posted on www.Clicktel.com or three days after such change is communicated to you by e-mail. Customers are advised to check www.Clicktel.com on a regular basis for changes and to review their monthly invoices for notice of changes. In particular, there may be frequent changes in the rates to destinations not included within the unlimited calling plan. The Agreement posted on www.Clicktel.com supersedes all previously agreed to electronic and written Terms and Conditions. By continuing to use the Service after a change has been made to the Agreement or the rates and charges, you accept and agree to all changes. IF YOU DO NOT ACCEPT OR AGREE TO ANY OF THE CHANGES, YOU MUST TERMINATE YOUR SERVICE IMMEDIATELY.
In the event that material changes are made in certain rates or charges, Clicktel will waive Disconnect and Rebate Recovery Fees that may otherwise apply to your account. See Section III(B) and (C) and Section III(X)(d) below for a description of the circumstances in which such Fees do not apply or will be waived.
For your most current rates and charges, the most current version of the Agreement, or if you have questions about your Service, please visit our website at www.Clicktel.com (see Rates and Terms & Conditions links) or call Clicktel's CUSTOMER CARE DEPARTMENT at the toll-free number listed on the first page of your invoice.
IN ORDER TO USE Clicktel SERVICE, THE CUSTOMER MUST HAVE A HIGH-SPEED INTERNET SERVICE, BROADBAND OR DSL, WHICH IS NOT A PART OF THE CLICKTEL SERVICE BEING OFFERED. You are responsible for subscribing and paying for your high-speed Internet access in order to use Clicktel's Service. The quality of your Clicktel service is highly dependent on the data speed, quality and reliability of your high-speed Internet connection. It is your responsibility to report and resolve any quality and connectivity issues related to your high-speed Internet connection with your Internet service provider.
II. Clicktel EMERGENCY CALLING SERVICE & E911 SERVICE
Pursuant to the recent rulings by the Federal Communications Commission (FCC¯), Clicktel has arranged for E911 dialing services for all of its Clicktel customers in areas in which the Public Safety Answering Point (or PSAP¯) is equipped to handle E911 calls. Clicktel has undertaken this ongoing, nationwide effort through its third-party E911 provider. As the roll out of the E911 initiative progresses, increasing numbers of Clicktel customers will have E911 service, where available. We encourage all customers to check their My Account¯ section at www.Clicktel.com to find out the progress of E911 capability for their registered location.
As set forth in Section III(X)(c) below, Clicktel charges a monthly fee of $1.99 per account for E911 or Emergency Calling Service (ECS).
For those customers that signed up for Clicktel® Services prior to November 28, 2005, Clicktel will continue providing the Emergency Calling Service described below unless or until the E911 services are activated. For those customers that sign up for Clicktel® Services after November 28, 2005, Clicktel will confirm E911 capability prior to sign up. Regardless of when a Customer signs up for Clicktel® Services, if the Services are used in a physical location different than the current location registered with Clicktel (the 911 Service Address¯), E911 service may or may not be available, and the 911 call will be routed to the wrong location. It is important that such Customers promptly update their location with Clicktel in accordance with the instructions in Section II(D) below.
A. Non-Availability of Traditional 911 or E911 Dialing Service:
You acknowledge and understand that unless you have been specifically informed by Clicktel that E911 service is available at your 911 Service Address (which can be confirmed in your My Account¯ section at www.Clicktel.com or by calling Clicktel's Customer Care Department), the Service will NOT support traditional 911 or E911 access to emergency services. In such cases, Clicktel offers a limited Emergency Calling Service available only on Clicktel Devices as described herein, but you acknowledge and understand that such Emergency Calling Service dialing is different in a number of important ways from traditional 911 services, as described below. Clicktel Emergency Calling Service dialing is available only on Clicktel -certified Devices or Equipment. You agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service (i.e., your 911 Service Address) as to the non-availability of traditional 911 or E911 dialing from your Clicktel® Service and Device(s). If you activate Clicktel Emergency Calling Service dialing, you agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service as to the important differences and limitations of Clicktel Emergency Calling Service dialing as compared with traditional 911 or E911 dialing, as set forth in this Agreement.
B. Description of Emergency Calling Service-Type Dialing Capabilities - Activation Required
Clicktel does offer an Emergency Calling Service that is different in a number of important ways from traditional 911 services or Clicktel E911 services. For customers that do not have E911 capability, when you dial 911, your call is routed from the Clicktel network to the Public Safety Answering Point (PSAP¯) or local emergency service personnel using the address that you provided to Clicktel . You will need to state the nature of your emergency promptly and clearly, including your location and telephone number, as PSAP personnel will not have this information at hand. PSAP personnel can help you effectively and will take necessary steps to provide you with the appropriate assistance, such as dispatching police, an ambulance and/or a fire truck. You acknowledge and understand that when you dial 911 from your Clicktel Equipment you will be routed to the general or administrative telephone number for the PSAP or local emergency service provider, and will not necessarily be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. Additionally, some PSAPs may from time to time refuse to accept calls from VoIP providers such as Clicktel . As described herein, this Emergency Calling Service dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing.
C. Service Outage:
1. Power Outage and outage of 911 Services
You acknowledge and understand that Emergency Calling Service and E911 Service dialing do not function without power. Should there be an interruption in the power supply, the Service and Emergency Calling Service (or E911 service) dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure Equipment before using the Service, Emergency Calling Service, or E911 service dialing.
2. Broadband Service Outage
You acknowledge and understand that service outages by your broadband provider will prevent, and that network congestion may slow, ALL Service including Emergency Calling Service and/or E911 service dialing.
3. Other Service Outages
You acknowledge and understand that if there is a Service outage for ANY reason, such outage will prevent ALL Service, including Emergency Calling Service and/or E911 service dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
4. Limitation of Liability and Indemnification
You acknowledge and understand that Clicktel's liability is limited as set forth in Section VII(B)(1) below, for any Service outage and/or inability to dial Emergency Calling Service or E911 service from your line or to access emergency service personnel. You agree to defend, indemnify, and hold harmless Clicktel , its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer™s Service relating to the (i) absence, failure or outage of the Service, including Emergency Calling Service or E911 dialing; and/or (ii) inability of Customer or any third person or party or user of Customer™s Service to be able to dial 911 or to access emergency service personnel.
D. Failure to Designate the Correct Physical Address for E911 and/or Emergency Calling Service Dialing
The address which the Customer provides to Clicktel is the address that is applied to your Service for both E911 and Emergency Calling Service dialing (also known as your 911 Service Address¯). Should you need to change this address, you must change this in the My Account¯ section at www.Clicktel.com or contact Clicktel Customer Care immediately to correct this address. It may take up to three business days to effectuate a change or update of your 911 Service Address. Failure to provide the current and correct physical address and location of your Clicktel Equipment as your 911 Service Address may result in the loss of E911 capability and/or will result in any Emergency Calling Service communication you may make being routed to the wrong local emergency service provider.
E. Changing Your Primary Phone Number
You acknowledge and understand that if you change your primary Clicktel phone number you will not be able to change your 911 Service Address for seventy-two (72) hours. During that time, any E911 or Emergency Calling Service calls that you may make will be routed using the 911 Service Address that was in Clicktel's records before you changed your phone number.
F. Change of Physical Location of Clicktel Equipment
You acknowledge and understand that E911 and Emergency Calling Service dialing does not function properly or may not function at all if you take your Equipment with you away from the 911 Service Address or physical location that you have registered with Clicktel.
G. Requires Re-Activation if You Move
You acknowledge and understand that E911 and Emergency Calling Service dialing will not function properly or at all if you move or change the physical location of your Clicktel Equipment to a different street address, unless and until you have successfully changed your 911 Service Address in the My Account¯ section at www.Clicktel.com or contacted Clicktel Customer Service to correct your 911 Service address.
H. Possibility of Network Congestion and/or Reduced Speed for Routing Emergency Calling Service
You acknowledge and understand that there is a greater possibility of network congestion and/or reduced speed in the routing of an E911 or Emergency Calling Service communication made using your Clicktel Equipment as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that Emergency Calling Service dialing from your Clicktel Equipment will be routed to the general or administrative telephone number for the local emergency service provider, and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider™s facilities when such calls are routed using traditional 911 dialing. You acknowledge and understand that there may be a greater possibility that the general or administrative telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, or not answered at all, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
I. Automated Number Identification
For Clicktel® Service customers without E911 service, it is not possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911 to access Emergency Calling Service dialing. Clicktel's system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they may not yet be technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may not be able to identify your phone number to return your call if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
J. Automated Location Identification
For Clicktel® Service customers without E911 service, it is not possible to transmit identification of the address that you have listed to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you use Emergency Calling Service dialing. You acknowledge and understand that you will need to state the nature of your emergency promptly and clearly, including your location, as PSAP personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to find your location if the call is unable to be completed, is dropped or disconnected, if you are unable to speak to tell them your location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
K. Alternative Emergency Calling Service Arrangements
You acknowledge that Clicktel does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional 911 or E911 services.
III. SERVICE, RATES, TERM AND FEES
A. Rates and Charges for Services
Clicktel's rates and charges for the Service are published on www.Clicktel.com. You are responsible for payment of the rates and charges in effect and posted on www.Clicktel.com when you enroll in a particular plan, or as later modified from time to time pursuant to Section I following three days of Clicktel's posting changes on www.Clicktel.com or three days following Clicktel's communication of such changes to you by e-mail.
B. Service Agreement Term
1. For Customers who initially subscribe to Clicktel after October 18, 2010:
* There is no Service term applicable to such customers. We will provide our service to you indefinitely, until the account is cancelled by the customer or by Clicktel in accordance with the provisions of these Terms and Conditions (Section VI).
* However, if Service is terminated or cancelled by the Customer or by Clicktel within the first year after the Activation Date, the Customer must return to Clicktel any Equipment provided by Clicktel to the Customer. An Equipment Recovery Fee of up to $75.00 will be charged if the Equipment is not returned in accordance with the requirement listed in subparagraph X below.
2. For customers who initially subscribed earlier than October 18, 2010:
* Service is offered for a two-year term beginning on the date that Clicktel activates your account (the Activation Date ¯), with the exception of customers who are subscribed to a promotional plan or to the annual prepaid plan, where a one or two year term applies,. The Activation Date will be within 7 days after you sign up for the Service. During the first 30 days from the date when you are able to begin using the Service and Equipment (the Service Commencement Date¯), you may terminate the Agreement risk-free for any reason subject to the terms of the Money Back Guarantee described in subparagraph F below. After the first 30 days, any cancellation during the two-year term will be subject to a Disconnect Fee as described in subparagraph C below.
* At the end of the initial term, this Agreement will automatically renew on a monthly basis unless you cancel the service by calling the Account Management Department at the number listed on the first page of your invoice or found on the Clicktel website http:\//www.clicktel.com. During renewal periods, if you terminate Service before the end of a monthly term, you will be responsible for the full month™s charges to the end of the then-current term, including without limitation unbilled charges, all of which immediately become due and payable.
* Annual prepaid plans and subscriptions will automatically renew at the end of each annual term for an additional full year, and Clicktel may charge the customer™s credit card for the applicable amount, unless the customer cancels the Service by calling Clicktel's Account Management Department at the number listed on the first page of your invoice or found on the Clicktel website, http:\//www.clicktel.com, at least 10 days before the end of the annual subscription year.
3. For all Customers (those who initially subscribed to Clicktel before or after October 18, 2010): Termination or cancellation of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
C. Disconnect Fee
1. Customers who initially subscribe to Clicktel on or after October 18, 2010 will not be subject to a Disconnect Fee if they cancel or terminate their account with Clicktel at any time.
2. For Customers who initially subscribed to Clicktel before October 18, 2010, Disconnect Fees will apply as follows:
* If a Customer not signed up for a promotional plan in which a two year term applies, cancels the Service for any reason within twenty-four (24) months of the Activation Date, Customer will be charged a disconnect fee of $24.95 per account (the "Disconnect Fee¯). The Disconnect Fee becomes due and payable immediately and will be billed directly to Customer™s credit card. If Customer has multiple accounts, Customer will be charged the Disconnect Fee of $24.95 per account for each account cancelled. However, a Disconnect Fee shall not be charged to (a) Customers who exercise their right to a 30-day money back guarantee, in accordance with subparagraph F below, (b) Customers who terminate following a material change to the rates or charges as set forth in this subparagraph.
* Customers who are currently subscribed under the Global Talk plan, and who cancel Service after the Money Back Guarantee period but before the end of the one-year term, will be refunded the unused portion of subscription charge and taxes. Refunds will be issued within 60 days of cancellation. A Disconnect Fee of $24.95 per account will be charged.
* Customers who are currently subscribed to a promotional plan, in which a two year term applies, and who cancel Service after the Money Back Guarantee period but before the end of the one or two year term, will be charged a Disconnect Fee of $24.95 per account. The Disconnect Fee becomes due and payable immediately and will be billed directly to Customer™s credit card.
* Business and residential customers will not be charged any Disconnect Fee for changing telephone numbers, while keeping the same number of lines.
* Disconnect Fee will be waived in the event that you decide to cancel the service within the period of your service agreement, if (a) there is a material increase in the monthly subscription fee and charges (other than taxes), (b) the length of your service agreement is extended, (c) the disconnect fee or the rebate recovery fee is increased (as described in subparagraph Y below), (d) the calling rate per minute to the top five calling destinations on your account (with respect to the number of minutes usage in the previous month) is materially increased, or (e) the removal of any of your top five calling destinations in the an unlimited calling plan and Clicktel's change of that destination to metered treatment in which you are billed for each call made, provided that you cancel the service by calling Clicktel's ACCOUNT MANAGEMENT DEPARTMENT within thirty days of the change and your account has no overdue payments at the time of cancellation.
* A material increase in rates or charges is defined as follows:
o More than 15% of your monthly subscription charge.
o More than a 15% OR more than a 2 cents per minute increase in the calling rate from your current rate, whichever is higher, to any of your top five calling destinations based on minute usage during the previous full month of billing.
o Removal of any of your top five calling destinations in the an unlimited calling plan and Clicktel's change of that destination to metered treatment in which you are billed for each call made.
* For multiple-line customers with a primary line having a subscription date before October 18, 2010, and who add another line on or after that date, Clicktel may, in its complete discretion, defer any Disconnect Fee applicable to the cancellation of the primary line by transferring its remaining term commitment to the additional Clicktel line.
3. For all Customers (those who initially subscribed to Clicktel before or after October 18, 2010), cancellations will only be accepted via phone through Clicktel's Account Management Department at the number listed on the first page of your invoice, or found on the Clicktel website, http:\//www.clicktel.com, and will be effective upon the date that you cancel with a Clicktel Account Management Representative. You will be given a cancellation confirmation number by the representative. Service cancellation requests by mail, e-mail, fax, equipment return, or any other form of non-telephonic communication requests will not be accepted. Clicktel's Account Management Department is open from Monday to Friday between 9 a.m. and 4 p.m. EST, and Saturday and Sunday between 9 a.m. and 12 p.m. EST. Clicktel does not schedule cancellations for a future date.
D. Phone Number Transfer on Service Disconnection
If you wish to cancel your Clicktel Service and port (i.e., transfer) your current Clicktel phone number to another carrier or service provider, it is your responsibility to ensure that your current Clicktel phone number has already been successfully ported to your new carrier or service provider prior to requesting cancellation of your account with Clicktel . CANCELLATION OF YOUR CLICKTEL ACCOUNT PRIOR TO THAT CONFIRMATION FROM YOUR NEW SERVICE PROVIDER THAT YOUR CURRENT CLICKTEL TELEPHONE NUMBER HAS SUCCESSFULLY PORTED SHALL RESULT IN YOUR INABILITY TO USE YOUR CURRENT CLICKTEL NUMBER IN THE FUTURE BECAUSE CLICKTEL WILL NOT BE ABLE TO PORT THAT NUMBER AFTER YOU CANCEL YOUR CLICKTEL SERVICE.
EVEN IF YOU HAVE SWITCHED YOUR SERVICE TO ANOTHER SERVICE PROVIDER, WITH OR WITHOUT PORTING YOUR CURRENT CLICKTEL PHONE NUMBER, YOU STILL MUST CANCEL THE CLICKTEL SERVICE BY CALLING THE CLICKTEL ACCOUNT MANAGEMENT DEPARTMENT. UNTIL YOU FORMALLY CANCEL YOUR CLICKTEL SERVICE, YOU WILL CONTINUE TO BE BILLED (AND CHARGED ON YOUR CREDIT CARD) FOR THE SERVICE AND YOU WILL BE RESPONSIBLE FOR PAYING THE BILLED CHARGES IN FULL, INCLUDING ANY DISCONNECT, EQUIPMENT RECOVERY AND REBATE RECOVERY FEES THAT MAY BE APPLICABLE.
Upon contact from your new provider that you desire to port your telephone number, Clicktel will use reasonable efforts to release your Clicktel telephone number to your new service provider, if such new service provider is able to accept such number.
E. Upgrade or Downgrade Fees For Changing Calling Plan
If at any time during the term of Service, Customer changes from one calling plan to another, the Customer will be charged a one time Upgrade Fee or Downgrade Fee of $4.95 each time an upgrade or downgrade is made.
F. Money Back Guarantee
For those Customers whose Activation Date is before October 18, 2010, Clicktel currently offers a 30-day Money Back Guarantee from the Service Commencement Date, applicable to one primary line per account, but not to additional or secondary lines. Under terms of the current Money Back Guarantee, Clicktel (a) refunds the Activation Fee (if one applies); any fee for the Equipment (if applicable); the monthly recurring charges for the first month of service; fees, taxes, and surcharges incurred for services within the plan; and any charges you paid to us for the device or for shipping or taxes, and (b) Clicktel waives any Disconnect Fee (if one were otherwise applicable). Customer is responsible for any call charges outside the plan for domestic and international calls, toll free service, or directory assistance. The Money Back Guarantee does not apply to residential Customers who have exceeded normal residential use of the Service as described in subparagraph H below, or to small business customers whose use is not compliant with the conditions specified in subparagraph I below.
Clicktel reserves the right to discontinue offering the Money Back Guarantee and/or change the current terms at any time but such changes/modifications would only apply to new customers signing up after such an action.
All cancellations will be effective on the date that you call Clicktel's Account Management Department and cancel with a Account Management Representative. Clicktel's Account Management Department can be reached at the number listed on the first page of your invoice and is open from Monday to Friday between 9 a.m. and 4 p.m. EST. Cancellation requests by mail, e-mail, fax, equipment return, or any other form of non-telephonic communication requests will not be accepted. Cancellations will be effective on the date that you cancel your service with a Clicktel Representative and receive a cancellation confirmation number. Clicktel does not accept cancellations scheduled for a future date. The disconnection of the Service can take up to three (3) business days from the time of the cancellation, and the Customer will be responsible for paying and the Customer™s credit card will be billed for service usage in any part of that period that follows the end of the initial 30-day ( MONEY BACK GUARANTEE ) period.
In order to qualify for the Money Back Guarantee, the Customer must return the Equipment to Clicktel . All returned Equipment must be in the original packaging with the UPC or bar code intact, and postmarked or shipped within fourteen (14) days of cancellation. All components, manuals and registration card(s) must be included and equipment must be in good condition, as determined by Clicktel . Equipment must be returned with a valid return authorization number obtained from the Clicktel Account Management Department. Customer is responsible for paying for the return shipping of Equipment. A Rebate Recovery Fee of up to $75.00 will be charged if the Equipment is not returned in accordance with the forgoing requirements. as described in subparagraph Y below. The Money Back Guarantee will not be honored if Customer fails to meet all above requirements.
Refunds will be issued within 60 days after account cancellation in accordance with the foregoing procedures.
G. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Clicktel, Web Site, you warrant to Clicktel, that you will not use the Clicktel Web Site, phone service or softphone for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Clicktel Web Site, phone service or softphone in any manner which could damage, disable, overburden, or impair the Clicktel Web Site, phone service or softphone or interfere with any other party's use and enjoyment of the Clicktel Web Site, phone service or softphone. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Clicktel Web Sites, phone service or softphone .
1. USE OF COMMUNICATION SERVICES
The Clicktel, Web Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
* Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
* Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
* Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
* Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
* Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
* Conduct or forward surveys, contests, pyramid schemes or chain letters.
* Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
* Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
* Restrict or inhibit any other user from using and enjoying the Communication Services.
* Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
* Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
* Violate any applicable laws or regulations.
Clicktel, has no obligation to monitor the Communication Services. However, Clicktel, reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Clicktel, reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Clicktel, reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Clicktel's sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Clicktel, does not control or endorse the content, messages or information found in any Communication Service and, therefore, Clicktel, specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Clicktel, spokespersons, and their views do not necessarily reflect those of Clicktel, .
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.
H. Residential Use of Service and Device
If you have subscribed to Clicktel's residential Services, the Service and Device are provided to you as a residential user (single family households), for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial, non-profit, governmental, multi-family, or other non-residential activities, including but not limited to home office, business, sales, telecommuting, telemarketing, autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal, single-family residential usage patterns. This also means that you are not to 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, without express written permission from Clicktel in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay Clicktel's higher rates for business Service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes.
Clicktel reserves the right to immediately terminate or modify Service, or offer a transfer to another higher price Service plan (and charge you the Upgrade Fee described in Section III ( E)), if Clicktel determines, in its sole discretion, that a residential Customer is using the Clicktel service and devices for an unauthorized and/or impermissible purpose, including non-residential, multi-family, commercial, non-profit, or governmental usage. In making this determination, Clicktel may consider a number of factors, including but not limited to unusual calling patterns including the number of destinations called per month, usage volume patterns, the volume of calls to high price premium/special services/personal prefix numbers, whether there is continuous calling or dialing activity, and whether calls include continuous dialog activity, whether there is usage from outside the Service address, etc.
I. Business Use of Service and Device
If you have subscribed to any of Clicktel's business plans, the Service and Device are provided to you as a small business user. This means that you are not to resell or transfer the Service or Device to any other person for any purpose. You agree that the Clicktel business plan to which you have subscribed does not confer the right to use the Service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting. Clicktel reserves the right to immediately terminate, modify or offer a transfer to another higher price Service plan (and charge you the Upgrade Fee described in Section III( E)), if Clicktel determines, in its sole discretion, that Customer™s Service is being used in violation of this Section III(I).
J. Notice of Rate/Price Changes
As set forth in Section I, Clicktel may change the rates, prices and charges for the Services at anytime and such changes will be effective, prospectively, within three days of posting on www.Clicktel.com or within three days of communication to you by e-mail. Unless the customer cancels the Service in accordance with Section VI below, such changes will automatically be incorporated by reference into this Agreement. From time to time, Clicktel may offer new rate plans and such rate plans may be available to customers upon request by contacting the Customer Care Department. Customers™ requests to be included in a new rate plan will be effective with the following billing cyle, and calls made prior to the new effective date will be charged at the previous plan rates.
K. Rounding Policy
For billing purposes, the length of each metered call is rounded up to the next full minute. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent.
L. Calls to International Mobile Telephones; International Special Services Calls
Clicktel's advertised rates for international calls are generally the rates charged for calls to landline telephones. Most calls to international mobile telephones, or to international telephone numbers considered to be special services calls, are charged a different (usually higher) rate than calls to landline telephones. The rates you will be charged are set forth in the calling plan rate tables and are typically designated by a "MOB," "cellular,¯ "mobile," or "M" notation. For a detailed list of mobile, premium, special service, or personal destinations outside the plan (and thus subject to additional charges), click on the Rates¯ page of www.Clicktel.com and then click on Mobile List.¯
For a list of mobile destinations covered by your plan, you may contact Customer Care or log in to your Clicktel account.
M. Timing of Calls
Generally, timing of metered calls begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom Clicktel must interconnect in order to terminate calls to foreign countries) designate a call as "answered" when the called party™s line rings or after a certain number of rings, and will charge Clicktel for a completed call. In these situations, Clicktel will charge for the call as if it were answered by the called party.
N. Use of Service and Device by Customers Outside the United States
Clicktel does not presently offer or support the Service to customers located in other countries. If you remove the Device to a country other than the United States and use the Service from there, you do so at your own risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you. Clicktel reserves the right to cancel or suspend the Service if it is determined that the Service is being used outside the United States.
O. Loss of Service Due to Power Failure
The Service does not function without power. Should there be an interruption in the power supply, the Service will not function until power is restored. A power failure or disruption may require you to reset or reconfigure Equipment before using the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including the Emergency Calling Service calling feature.
P. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and Device and any firmware or software used to provide the Service (or provided to Customer in conjunction with providing the Service), or embedded in the Device, and all Services, information, documents and materials on Clicktel'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 Clicktel are and shall remain the exclusive property of Clicktel and nothing in this Agreement shall grant you the right to license or to use such marks. You acknowledge and agree that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If you decide to use the Service through an interface Device not provided by Clicktel , which Clicktel reserves the right to prohibit in particular cases or generally, or are required to use third party software to enable the use of Clicktel accessories, like softphone, you promise that you have acquired, and all times during your use, possess all of the required rights, including software and/or firmware licenses, to use that interface Device of third party software with the Service, and you will indemnify and hold harmless Clicktel against any and all liability arising out of your use of such interface Device of software with the Service or any of its accessories.
Q. Tampering with the Device
You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Clicktel . Clicktel reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month™s charges to the end of the current term, including without limitation unbilled charges, plus any applicable Disconnect Fee, all of which immediately become due and payable.
R. Device Replacement
Customers who wish to replace their Device will be charged a $24.99 fee. In cases where a customer claims that the Device is defective, then a Device will be replaced at no charge to the customer subject to trouble shooting with Clicktel's Technical Support.
S. Theft of Service
You agree to notify Clicktel immediately, in writing, by electronic mail or by calling Clicktel Customer Care, if the Device is stolen or if you become aware at any time that your Service is being stolen or used fraudulently. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so promptly after discovery of the improper use may result in the termination of your Service and additional charges to you. You will be liable for all use of the Service if your Device is stolen from you and any and all stolen Service or fraudulent use of the Service. Notwithstanding anything herein to the contrary, credits will not be issued for charges resulting from fraud that arises out of third parties hacking into your Equipment, other equipment used by you, or the Internet. This includes, but is not limited to, modem hijacking, wireless hijacking, or other fraud arising out of a failure of your internal or corporate procedures. Clicktel will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your Service.
T. Service Distinctions
You acknowledge and understand that the Service is not a telephone service. Important distinctions exist between telephone service and the enhanced Service offering provided by Clicktel . The Service is subject to different regulatory treatment than phone service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
U. Collect Call and Operator Services
Clicktel does not offer collect call or operator services via this Service.
V. International DIDs or phone numbers
Clicktel charges a monthly fee for international (non-United States) direct inward dial phone numbers (DID¯) for those customers who wish to order that feature. That monthly fee is currently $5.00 per Canadian DID, and $10.00 per all other international DID. Clicktel may change this price at its sole discretion for new customers, or upon giving three-days advance notice to existing customers by posting the change on www.Clicktel.com or by communicating the change to you by e-mail. Customers that have international DIDs are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without notice and Clicktel may be required to discontinue this Service, without notice. Clicktel reserves the right to discontinue International DID services for any reason at any time and is only obligated to refund the pro-rated monthly fee.
W. International Services
1. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the end-to-end international service or facilities they provide, certain limitations or restrictions that may limit your ability use the Clicktel Services. You must conform to any limitations or restrictions imposed by the foreign carriers or agencies.
2. Foreign Carrier Acts or Omissions.
1. When other U.S. or foreign carriers, and foreign telecommunications administrations, use facilities to establish connections to points not reached by Clicktel's network, Clicktel is not liable for acts or omissions of other carriers or foreign telecommunications administrations.
2. International calls are priced on the basis of the country and city codes dialed by you. When the facilities of other U.S. or foreign carriers, or foreign telecommunications administrations, are used in establishing connections to points not reached by Clicktel's network, Clicktel is not liable for refunds or damages if those calls do not terminate in the country, city or area codes associated with the called number.
X. Surcharges and Fees
In addition to surcharges and fees that may be found in the applicable Calling Plan described on www.Clicktel.com, Clicktel may impose additional rates and charges. These include:
1. Federal Universal Service Fee: Clicktel imposes a surcharge to recover the Federal Universal Service Fee that it is required to pay to a federal program that ensures that basic phone service is available in all areas of the country at affordable rates. Additionally, the Universal Services Fee/Fund (USF) provides for discounted telecommunications services for schools, libraries and rural health-care facilities. All telecommunications providers are required to pay into the Federal USF, and their contributions may be recovered from customers. The USF contribution percentage is reviewed and adjusted quarterly by the FCC. The USF rate for the current quarter can be found at www.Clicktel support.com. Clicktel will add a surcharge to its invoices to recover this cost from Customers.
2. Administrative, Regulatory, and Compliance Fee: Clicktel charges an Administrative, Regulatory, and Compliance Fee of $1.99 per phone number per month. This Fee is not a government mandated charge, but represents compensation for administrative, compliance, and other services that Clicktel performs in connection with the provision of the Service. What is included in the Fee is subject to change from time to time.
3. Emergency Services Fee: Clicktel charges an Emergency Services fee for providing nationwide emergency 911 service in compliance with Federal and State regulations. The Emergency Service Fee is $1.99 per account per month and is separate from any state or locally mandated Emergency 911 charge.
4. Rebate Recovery Fee: Customers who initially subscribed to Clicktel before September 24, 2010: If any such Customer purchased a product or service with respect to which a rebate or benefit was to be provided that is conditioned upon your maintaining Clicktel service for a particular length of time, and if Customer disconnects service before the end of that period, you agree to pay us a Rebate Recovery Fee. This Fee is equal to the difference between the price you paid to us and the regular retail price of the product or service at the time you received it. Recovery fees are cumulative and are in addition to any other amounts you owe us, including the Disconnect Fee, if applicable. Specifically, if a rebate is provided with respect to Equipment you directly purchase from Clicktel , and if you cancel your service within 24 months of the Activation Date, you will be charged a rebate recovery fee equal to the amount of the rebate given to you on the Equipment and/or Service. However, a rebate recovery fee shall not be charged to Customers who terminate following a material change to the rates and charges, in accordance with Section III(C) above. Customer will be required to return equipment.
5. Equipment Recovery Fee: Customers who initially subscribed to Clicktel on or after September 24, 2010 and whose service is cancelled or terminated within one year of their Activation Date must return all Clicktel -provided Equipment within fourteen (14) days of cancellation. All components must be included and equipment must be in good condition, as determined by Clicktel . Equipment must be returned with a valid return authorization number obtained from the Clicktel Account Management Department. Customer is responsible for paying for the return shipping of Equipment. An Equipment Recovery Fee of up to$75.00 will be charged if the Equipment is not returned in accordance with the foregoing requirements.
6. Reactivation Fee: This fee recovers Clicktel's cost to reinstate an account that has been suspended or cancelled for non-payment. The fee is $25.00 per account reactivated.
1. All taxes, tax-like charges, and tax-related surcharges are referred to collectively as "Tax(es)." Clicktel may elect to impose and collect such Taxes, unless otherwise constrained by court order or direction.
2. You agree to pay all Taxes imposed. If Clicktel has collected Taxes and a challenged Tax is found to have been invalid and unenforceable, Clicktel , in its sole discretion, will either reduce Service rates for a fixed period of time in the future in order to flow-through to customers an amount equivalent to the amount of tax refunds collected by Clicktel , or Clicktel will credit or refund such amounts to affected customers (less its reasonable administrative costs), if the amounts collected were retained by Clicktel or if they were delivered to the jurisdiction and returned to Clicktel , or it will negotiate an arrangement with the jurisdiction to provide a future benefit for customers in that jurisdiction.
3. If you provide Clicktel with a duly authorized tax exemption certificate, Clicktel will exempt you in accordance with law, effective on the date Clicktel receives the certificate.
Z. Misdialing and Incompatibility with Other Services
1. Non-Usage or Misdialing
Neither credit nor refund for Service will be issued for non-usage of the Service or misdialing while using the Service.
2. With Other Equipment and Services
You acknowledge that our Service is not compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, TIVo®, satellite television systems, PBX, other private telephone networks, or modems. You waive any claim against Clicktel for interference with or disruption of these services and equipment, as well as any claim that Clicktel is responsible for any disruption to your business, if applicable.
3. Incompatibility With Certain Broadband, Modem, and Other Services.
You acknowledge that our Service presently is not compatible with AOL® cable broadband service and TIVo®. There may also be other services with which our Service may be incompatible such as modems provided by broadband providers. We do not warrant that our services will be compatible with all broadband services and modems and disclaim any express or implied warranties regarding the compatibility of our Service with any particular broadband service or modems.
IV. RESTRICTIONS ON THE USE OF SERVICE
1. Clicktel offers its Service subject to availability of facilities, limitations of service offerings, and the provisions of this Agreement.
2. Services provided by Clicktel under the Agreement will not be used by Customer: (1) for any unlawful purpose; (2) for making telephone calls that use automatic dialing devices and terminate into electronic information services, pay-per-call services, or other domestic or international audiotext services; (3) for international call-back offerings using uncompleted call signaling to any country, when that country has prohibited such an offering by statute or regulatory decision; (4) for unauthorized purposes under Section III(H) or (I) above.
3. Clicktel may (1) deny, for any lawful reason, your request for Service, or (2) limit or allocate the facilities available to or used by any Service, if necessary, to manage its network in an efficient manner, meet reasonable Service expectations, furnish Service to existing and future customers based on forecasted customer requirements, or for any other lawful reason.
4. Clicktel may, without notice (consistent with governing laws or regulations), block traffic to or from specific countries, country codes, cities, city codes, local telephone exchanges ("NXX exchanges"), individual telephone stations, groups or ranges of individual telephone stations, or calls using certain customer authorization codes, whenever Clicktel deems it necessary to take such action to prevent (1) the unlawful use of Service; (2) nonpayment for Service; (3) the use of Service in violation of this Agreement; or (4) network blockage or the degradation of Service furnished to you or other customers.
V. PAYMENT OBLIGATIONS
1. You must provide Clicktel with a valid credit card number when the Service is activated. If the credit card expires, you close your credit card account, your billing address changes, or the credit card is cancelled and replaced because of loss or theft, you must advise Clicktel immediately. Clicktel will invoice all charges on a monthly basis, in advance, to your credit card, including but not limited to: activation fees and monthly Service fees, advanced feature charges, Equipment purchases, and shipping and handling charges. If you subscribe to a prepaid annual plan, we will bill and charge you in advance for the service plan fee due for the entire year, plus any associated taxes, 911 fees and surcharges in arrears on a monthly basis. Any charges not included in your rate plan and any additional usage charges are billed after each billing period. If Clicktel changes its rates, recurring monthly charges affected by such change will be assessed prospectively at the new rate for the remainder of the full billing period during which the new recurring charge rate became effective.
2. Clicktel may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Clicktel is declined or reversed, your credit card expires and you have not provided Clicktel 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 Clicktel for all charges accrued before termination, Disconnect Fees, Rebate Recovery Fees and Equipment Recovery Fees (where applicable), and all costs incurred by Clicktel in collecting such amounts including but not limited to collection costs and attorneys fees.
3. You are responsible for payment of all charges for Services furnished to you and anyone authorized by you to use your Service. This responsibility is not changed by virtue of any use, misuse, or abuse of your Service undertaken or caused by third parties.
4. You must promptly notify Clicktel of any change in your invoicing address or, if applicable, in the credit card or bank account used for payment. You should notify the Clicktel Customer Care Department at the toll-free number listed on the first page of your invoice or by e-mailing Clicktel at the following address: CustomerCare@Clicktel .com.
5. Clicktel will invoice Customer for Services on a monthly basis in advance and all payments are due and payable by Customer without demand or setoff within thirty (30) days from the invoice date (the "Due Date"). Amounts not paid within thirty (30) days of the invoice date will be considered past due. If you make any late payments, and we bill you for the Services, we will charge you a late fee of 1.5% per month, which we apply to that period™s charges and any outstanding charges and late payment charges that remain unpaid at the time of the next bill. If the state law where you receive the Clicktel Services requires a lower rate, we will apply that rate.
6. If Clicktel becomes concerned at any time about your ability to pay for Services, Clicktel may require that you pay its charges within a specified number of days and that you make such payments in cash or the equivalent of cash.
7. If Clicktel hires a collection agency to collect, or attempt to collect, any charges owed Clicktel , you will be liable to Clicktel for all costs that Clicktel incurs, including without limitation collection agency fees, reasonable attorneys fees, and court or arbitration costs. If Clicktel incurs any fees or expenses, including reasonable attorneys fees, in collecting, or attempting to collect, any charges owed Clicktel other than by hiring a collection agency, you will be liable to Clicktel for the payment of all such fees and expenses reasonably incurred.
8. If billing systems or other support is not available for a Service, feature, surcharge, tax or other charge element at the time of Service provision, Clicktel will bill for that Service, feature, surcharge, or other charge element as soon as it is capable of doing so.
9. No Credit Allowances for Interruption of Service. You acknowledge and agree that the Service is provided "as is." Credit allowances for interruption of Service, including international calling services, will not be provided.
10. If you dispute any charges, you must notify us in writing at CustomerCare@Clicktel .com or at the address below within 30 days of receiving your credit or debit card statement. If you do not notify us in writing in a timely manner, you agree to waive any right to contest such charges.
2450 Hollywood Blvd,
Hollywood Blvd, Fl. 33020
Attention: Customer Care Department
VI. CANCELLATION OF SERVICE
A. By the Customer
1. If you cancel your Service after the thirty (30) day Money-Back Guarantee period described in Section III(F) above, and you initially subscribed to Clicktel before September 24, 2010, you will be charged a Disconnect Fee and Rebate Recovery Fee except as indicated in Sections III(C) and III(X) above. Customers who initially subscribe on or after September 24, 2010, may be subject to an Equipment Recovery Fee if their service is cancelled or terminated within one year of their Activation Date and they fail to return Equipment, as described in Sections III(B)(1) and III(X) above.
2. If you cancel your Service with Clicktel , you will not be able to use the Device or Equipment.
3. All cancellations will be effective on the date that you call Clicktel's Account Management Department and cancel the service with an Account Management Representative who will also issue a cancellation confirmation number. Clicktel does not have the ability to schedule a cancellation for a future date. It may take up to three business days to actually terminate the provision of the Service to you.
4. Your credit card will be charged for any usage after you contact Clicktel to cancel your Service.
5. All cancellations must be made by calling Clicktel's Account Management Department at the toll-free number listed on the first page of your invoice. Clicktel's Account Management Department is open from Monday to Friday between 9 a.m. and 4 p.m. EST. Cancellation requests by mail, e-mail, fax, equipment return, or any other form of non-telephonic communication requests will not be accepted.
B. By Clicktel
1.Clicktel reserves the right to discontinue furnishing Services, cancel your account, and/or block your access to the Clicktel network, without incurring any liability, immediately and without notice if Clicktel deems that such action is necessary to prevent or to protect against fraud or to otherwise protect Clicktel's personnel, agents, facilities, or Services. Without limitation, Clicktel may take such actions if:
1. You refuse to furnish information, or furnish false information, that (i) is essential for billing; or (ii) pertains to your creditworthiness, your past or current use of common carrier communications service, or your planned use of such service;
2. You indicate that you will not comply with a request for security for the payment for the Services;
3. Your Service usage charges indicate a likelihood of non-payment or possible fraud;
4. You have been given written notice by Clicktel of any past due amount (which remains unpaid, in whole or in part for 30 days or more) for any of Clicktel's or an affiliated carrier™s service to which you either subscribe or had subscribed or used;
5. You either refuse to pay when billed for Service or indicate to Clicktel , its affiliate, Primus Telecommunications, Inc., or an entity billing on Clicktel's behalf that you do not intend to pay for Service used by you;
6. You use, or attempt to use, Service with the intent to avoid the payment, either in whole or in part, of the charges for the Service by (i) using or attempting to use Service by rearranging, tampering with, or making connections to the Service in an unauthorized manner; or (ii) using tricks, schemes, false or invalid numbers, false credit devices, or other fraudulent means or devices;
7. You act, or fail to act, in a manner that hinders or frustrates any investigation by Clicktel or others having legal authority to investigate your legal obligations;
8. Your telephone equipment fails to pass back to Clicktel the appropriate signal to start and stop billing for a call;
9. You were previously provided with notice of breach of these terms and conditions or other contract with Clicktel , took corrective action, but thereafter engaged in the same breach activity; or
10. You act in a manner that is threatening, obscene, harassing, or abusive to Clicktel personnel.
11. You act in violation, or your usage is deemed in violation, of Sections III(H) or III(I) above.
2. Clicktel reserves the right to discontinue furnishing Services, cancel your account, and/or block your access to the Clicktel network, without incurring any liability, immediately upon written notice to you if:
1. Any invoice charges remain outstanding and owed by you after the thirtieth (30th) day from the date of the invoice notifying you of the charges; or
2. You violate any of your duties or obligations under this Agreement.
3. The discontinuance of Service(s) by Clicktel pursuant to these provisions does not relieve you of any obligation to pay Clicktel for charges due and owing for Service(s) furnished up to the time of discontinuance. Clicktel may charge Customers who initially subscribed prior to September 24, 2010 a Disconnect Fee or Rebate Recovery Fee if your Service is canceled pursuant to either Section VI(B)(1) or (VI)(B)(2) above. Customers who initially subscribe on or after September 24, 2010, may be subject to an Equipment Recovery Fee if their service is cancelled or terminated within one year of their Activation Date and they fail to return Equipment, as described in Section III(B)(1) and III(X) above.
A. Clicktel will not be liable for: (i) any failure of performance due to causes beyond its control, including, but not limited to, acts of God, fires, power outages, floods or other catastrophes; national emergencies, insurrections, riots or wars, acts of terrorism, strikes, lockouts, work stoppages or other labor difficulties; and any law, order, regulation or other action of any governing authority or agency thereof; (ii) delayed installation of Clicktel's facilities or commencement of Service; (iii) any damages associated with Devices not provided by Clicktel and/or any third-party software (including but not limited to the download thereof) recommended or required for use with any of the Clicktel accessories.
B. With respect to any other factual allegation, legal claim, or dispute by you or by any others, for damages associated with the ordering (including the reservation of any specific number for use with a Service), installation (including delays thereof), provision, termination, maintenance, repair, interruption, or restoration of any Service or facilities offered by Clicktel , Clicktel's liability, if any, will be limited as follows:
1. With respect to the attempts to route calls to Public Safety Answering Points or municipal emergency service providers, as described in Section II, Clicktel's liability, if any, will be limited to the lesser of: (a) the actual monetary damages incurred and proved by you as the direct result of Clicktel's action, or failure to act, in routing the call, or (b) the sum of $1,000.00.
2. With respect to the provisioning of, or any error or omission in, data, information, or content furnished in connection with any service provided by Clicktel , for example, Directory Assistance, Clicktel's liability will be limited to the lesser of: (a) the amount of actual money damages proven by you to have been incurred as the proximate result of your reliance on such data, information, or content; or (b) $100.00.
3. If you request that your current telephone number be ported to Clicktel , it may take 15 business days or longer to fulfill the request even though many numbers can be ported within a 10-day period. In any event, Clicktel shall not be liable for any delays or incompletion or costs or charges pursuant to a delay or incompletion in local number portability (LNP). Clicktel makes no guarantees on the ability to port your number. Check the number porting tool on www.Clicktel.com.
C. IN NO EVENT WILL Clicktel BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS (WHETHER OR NOT Clicktel HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES) BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
D. Clicktel will be indemnified, defended, and held harmless by you against all claims of loss or damage arising from the use of Service furnished by Clicktel , including:
1. Allegations or claims for libel, slander, invasion of privacy, or infringement of copyright arising out of the material, data, information, or other content transmitted via Clicktel Service;
2. All other allegations and claims arising out of any intentional act or omission by you or others authorized by you to use the Service, in connection with any Service provided by Clicktel ; and
3. Allegations or claims that you have not acquired or possess the requisite rights to any Devices not provided by Clicktel and/or third party software for use in conjunction with Clicktel accessories as described in Section III(P).
E. Clicktel MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ABOUT ITS SERVICES AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT.
Clicktel DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON Clicktel's BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY Clicktel .
F. Clicktel will not be liable for any act or omission of any other company or companies furnishing a portion of the Service, or from any act or omission of a third party, including those vendors participating in Clicktel offerings made to you, or for damages associated with the Service, or Equipment that it does not furnish, or for damages that result from the operation of customer provided systems, Equipment, facilities or services that are interconnected with Clicktel® Services.
VIII. DISPUTE RESOLUTION
IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF CERTAIN DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. BY THIS AGREEMENT, BOTH YOU AND Clicktel WAIVE THE RIGHT TO A TRIAL BY JURY.
In the event of any dispute, claim, question, or disagreement arising from or relating to the Service, the Device, or this Agreement or the breach thereof, the parties hereto shall use their best efforts to resolve the dispute, claim, question, or disagreement. Before you take a dispute to arbitration or to small claims court, you must first contact our Customer Care Department at the toll-free number listed on your Clicktel invoice for the Services, or write to us at the following address, and give us an opportunity to resolve the dispute:
2450 Hollywood Blvd,
Hollywood Blvd, Fl. 33020
Attention: Customer Care Department
You must describe your dispute and provide Clicktel with any supporting documentation. Likewise, if Clicktel has a dispute with you, it will notify you by letter sent to your billing address, or by e-mail to your designated e-mail addres, and attempt to resolve it before pursuing a small claims court complaint or arbitration. If you and Clicktel do not reach a resolution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally resolved either by the Small Claims process described in subparagraph B below, if applicable, or by final, binding arbitration administered by the American Arbitration Association (AAA¯) as described in subparagraph C below. Nothing in this subsection shall limit Clicktel's right to suspend or terminate service immediately in the event of any material breach of this Agreement by customer, including nonpayment of charges when due.
B. Small Claims
Both you and Clicktel have the right to assert any claim or claims against the other party cumulatively totaling under $8,000 in small claims court (or an equivalent court hearing only small claims) if the dispute qualifies for consideration by such a court. In no case shall such claim be heard by a jury. The claiming party (you or Clicktel ) also has the right to pursue such small claim(s) in binding arbitration as described below. The claiming party can choose whether to proceed initially in arbitration or in small claims court; but if for any reason a small claims court lacks jurisdiction, the claim(s) shall be resolved in arbitration in accordance with subparagraph C below.
C. Binding Arbitration
Except for claims resolved pursuant to the foregoing Small Claims provision, any controversy or claim arising out of or relating to the Service, the Device, or this Agreement or the breach thereof, shall be resolved by arbitration administered by the AAA in accordance with this Agreement and the AAA™s Commercial Arbitration Rules including, where deemed applicable by the AAA, the Supplementary Procedures for Consumer “Related Disputes and the Consumer Due Process Protocol. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall take place before a single neutral arbitrator. The arbitration shall be governed by the Federal Arbitration Act (9 U.S.C. Section 1 et seq.).
You or Clicktel may commence an arbitration by contacting the AAA in writing at AAA Service Center, 2200 Century Parkway, Suite 300, Atlanta, GA 30345-3203, and demand arbitration of the dispute in accordance with the applicable AAA rules. Information about the arbitration process and the AAA™s Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org.
Any in-person arbitration hearing will be conducted at a location that the AAA selects in the state of a consumer™s primary residence, or, in the case of a business, its main office in the United States. Any arbitration shall remain confidential. Neither you nor Clicktel may disclose the existence, content or results of any arbitration or award, except as may be required by law, or to confirm and enforce an award.
If any portion of this Dispute Resolution Part (Part VIII) is determined to be unenforceable, then the remainder shall be given full force and effect.
You have the right to be represented by counsel in an arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms. The arbitrator may not award punitive, exemplary or similar damages. The parties agree that an award of such damages will be void if issued.
In the event the AAA declines for any reason to administer a dispute submitted to arbitration in accordance with this Agreement, then the dispute shall be resolved pursuant to the Small Claims provisions of this Agreement, if applicable. If resolution is not possible under the Small Claims procedures, the dispute shall be submitted to final binding arbitration before a single arbitrator selected in accordance with the applicable rules, fees and procedures administered by JAMS, as described in greater detail on the website www.jamsadr.com.
The parties acknowledge and agree that the Agreement and products and Services offered by Clicktel , including advertising, involve interstate commerce.
NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT IN SMALL CLAIMS COURT, OR IN AN ARBITRATION, WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS, EXCEPT WITH THE AGREEMENT OF ALL PARTIES. IN NO CIRCUMSTANCE WILL ANY PARTY BE REQUIRED TO ARBITRATE CLAIMS ASSERTED ON A CLASS-WIDE BASIS OR WHERE DIFFERENT PARTIES™ CLAIMS ARE JOINED. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS™ FEES UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND Clicktel BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
Despite Section I or any other provision of this Agreement, if Clicktel makes a change to Part VIII relating to the arbitration of disputes, you may reject any such change and require Clicktel to adhere to the language of this Part VIII when you initially entered into the Agreement.
ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES, UNLESS A SHORTER PERIOD IS PROVIDED ELSEWHERE IN THIS AGREEMENT
D. Fees and Expenses of Arbitration
If you file a request for arbitration, you will have to pay a filing fee and other fees in accordance with the AAA (or JAMS) fee schedule, except that Clicktel will advance or pay such fees if that is required by the AAA (or JAMS) or to make the arbitration agreement lawful under the controlling state law. Under AAA rules, costs such as the arbitrator™s fees and expenses and an administrative fee may be allocated between the parties. Each party shall bear all other costs and expenses incurred in participating in the arbitration, including without limitation travel and telephone costs.
E. In addition to the procedures described in this Section for resolving a dispute, you may also have the right to file a complaint with an appropriate federal or state regulatory agency.
IX. MISCELLANEOUS PROVISIONS
A. Entire Agreement.
These Terms and Conditions constitute the entire Agreement between you and Clicktel , and supersede any and all prior agreements, oral or written, concerning the subject matter. If there is any inconsistency or conflict between the terms of any calling plan, promotion, and/or authorized written communications you have received and the provisions of this Agreement, the provisions of this Agreement will control.
B. No Obligation to Assist in Switching to a Different Provider.
If you either voluntarily cancel your Clicktel account or if Clicktel cancels your Service for any reason set forth above, Clicktel will have no obligation whatsoever to assist you in any respect in switching from Clicktel to another service provider.
Customers may not modify or assign this Agreement. In its sole discretion, Clicktel may assign this Agreement.
D. No Waiver of Rights by Clicktel .
If Clicktel fails to enforce any right or remedy under this Agreement, that does not waive Clicktel's right to do so or waive any right or remedy that Clicktel has for any other breach or failure.
E. Binding Effect.
This Agreement is binding upon you and Clicktel and upon, respectively, your and Clicktel's respective agents, heirs, and successors.
If any part or provision of this Agreement (including the dispute resolution provisions in Section VIII) is finally determined to be invalid or unenforceable under applicable law by an arbitrator or a court of competent jurisdiction, then that part or provision will be ineffective only to the extent of such invalidity or unenforceability, without in any way affecting the remaining parts or provisions of this Agreement.
G. Governing Law
This Agreement is governed by and construed under the laws of the state of Florida and applicable federal law, without regard to Florida™s choice of law principles, except that the arbitration provisions in Section VIII shall be governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services.
Any liability or obligation of a party to the other party under the provisions of Sections I, II, IV, V and VII as applicable, will, in each case, survive cancellation or termination of this Agreement.
I. Headings of No Force or Effect.
Headings in this Agreement are for reference only and have no effect on the meaning of any provision.
COPYRIGHT AND TRADEMARK NOTICES:
All contents of the Clicktel Web Site are: Copyright (c) 2010 Clicktel Inc. All rights reserved.
The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
The example companies, organizations, products, people and events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred.
Any rights not expressly granted herein are reserved.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider's Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement.
© 2010 Clicktel inc.
Updated October 18, 2010