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These
Terms of Service constitute the This agreement ("Agreement")
is between Constant Touch Communications, LLC ("we," "us"
or "Constant Touch Communications") and the user ("you,"
"user" or "Customer") of Constant Touch Communications'
enhanced Residential communications services or enhanced
Small Business communications services and any related
products or services ("Service").
This
Agreement governs both the Service and any devices,
such as an IP Gateway, 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. If you have purchased Equipment from any
CTC retail dealer, you will be deemed a "Retail
Customer" and will be governed by certain Retail
Customer terms and conditions as set forth herein.
1.
SERVICE
1.1 Term
Service is offered on a monthly basis for a term which
begins on the date that Constant Touch Communications 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 Constant Touch Communications written
notice of non-renewal at least ten [10] days before
the end of the monthly term in which the notice is given.
You are purchasing the Service for full monthly terms,
meaning that if you attempt to terminate Service prior
to 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,
plus a disconnect fee, all of which immediately become
due and payable. Expiration of the term or termination
of Service does not excuse the Customer from paying
all unpaid, accrued charges due in relation to the Agreement.
1.2.1
Residential Use of Service and Device
If you have subscribed to Constant Touch Communications' Residential
services, the Service and Device are provided to you
as a residential user, for your personal, residential,
non-business and non-professional use. This means that
you are not using them for any commercial or governmental
activities, profit-making or non-profit, including but
not limited to home office, business, sales, tele-commuting,
tele-marketing (including without limitation charitable
or political solicitation or polling), autodialing,
continuous or extensive call forwarding, fax broadcast,
fax blasting or any other activity that would be inconsistent
with normal 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 Constant Touch Communications 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 Constant Touch Communications' higher
rates for commercial service on account of all periods,
including past periods, in which you use, or used, the
Service for commercial or governmental purposes. Constant Touch Communications
reserves the right to immediately terminate or modify
the Service, if Constant Touch Communications determines, in its sole
discretion, that Customer's Service is being used for
non-residential or commercial use.
1.2.2
Small Business Use of Service and Device - Prohibition
on Resale
If you have subscribed to Constant Touch Communications' Small Business
services, 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, without express written permission
from Constant Touch Communications in advance. You agree that the
Constant Touch Communications Small Business Plans do not confer the
right to use the service for auto-dialing, continuous
or extensive call forwarding, telemarketing (including
without limitation charitable or political solicitation
or polling), fax broadcasting or fax blasting. Constant Touch Communications
reserves the right to immediately terminate or modify
the Service, if Constant Touch Communications determines, in its sole
discretion, that Customer's Service is being used for
any of the aforementioned activities.
1.2.3
CTC Enterprise Use of Service - Prohibition on Resale
If you have subscribed to Constant Touch Communications, Inc's CTC
Enterprise services, the Service is provided to you
as a business user. This means that you are not to resell
or transfer the service or device to any other person
for any purpose, without express written permission
from Constant Touch Communications, Inc in advance. Customer is responsible
for supplying the standard SIP based Customer Premise
Equipment (CPE) ('device') for use with the service.
CTC Enterprise customers are solely responsible for
providing, operating and supporting the device they
use in conjunction with Constant Touch Communications, Inc's service.
Constant Touch Communications, Inc reserves the right to immediately
terminate or modify the Service, if Constant Touch Communications,
Inc determines, in its sole discretion, that Customer's
Service is being used for any of the aforementioned
activities. Sections 1.8, 4.6, 4.7.1 and 5.5 of this
agreement do not apply to CTC Enterprise customers.
1.3 Lawful Use of Service and Device
1.3.1
Prohibited Uses:
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 Constant Touch Communications' sole judgment the
transmission, receipt or possession of such communication
or material (i) would constitute a criminal offense,
give rise to a civil liability, or otherwise violate
any applicable local, state, national or international
law or (ii) encourages conduct that would constitute
a criminal offense, give rise to a civil liability,
or otherwise violate any applicable local, state, national
or international law. Constant Touch Communications reserves the right
to terminate your service immediately and without advance
notice if Constant Touch Communications, in its sole discretion, believes
that you have violated the above restrictions, leaving
you responsible for the full month's charges to the
end of the current term, including without limitation
unbilled charges, plus a disconnect fee, all of which
immediately become due and payable and may at Constant Touch Communications,
Inc's discretion be immediately charged to your credit
card. 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 and agree to indemnify and
hold harmless Constant Touch Communications against any and all liability
for any such use that fails to comply with this Section
1.3.1. If Constant Touch Communications, in its sole discretion believes
that you have violated the above restrictions, Constant Touch Communications
may forward the objectionable material, as well as your
communications with Constant Touch Communications and your personally
identifiable information to the appropriate authorities
for investigation and prosecution and you hereby consent
to such forwarding.
1.3.2
Use of Service and Device by Customers Outside the United
States:
While we encourage use of the Service within the United
States to other countries, Constant Touch Communications 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 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 Constant Touch Communications,
Inc against any and all liability for any such use.
Should the removal from the United States or Canada
of the Device violate any export control law or regulation,
you will be solely liable for such violation and agree
to indemnify and hold harmless Constant Touch Communications, Inc
against any and all liability for such violation. Constant Touch Communications,
Inc reserves the right to terminate your Service immediately
and without advance notice if it determines that you
are using it outside the United States or Canada.
1.4 Loss of Service Due to Power Failure or Internet
Service Outage or Termination or Suspension or Termination
by Constant Touch Communications, Inc
You acknowledge and understand that the Service does
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 Constant Touch Communications, Inc) 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 or
Constant Touch Communications, Inc 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 Customer to reset or reconfigure equipment prior
to utilizing the Service. Power disruptions or failures
or ISP outages will also prevent dialing to emergency
service numbers including the 911 calling feature. Should
Constant Touch Communications, Inc suspend or terminate your Service,
the Service will not function until such time as Constant Touch Communications,
Inc restores your Service (which may require payment
of all invoices and reconnection fees owed by you or
cure of any breach by you of this Agreement).
1.5
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 Constant Touch Communications' 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 Constant Touch Communications are and shall remain the exclusive
property of Constant Touch Communications and nothing in this Agreement
shall grant you the right to right or license to use
such marks. You acknowledge that you are not given any
license to use the firmware or software used to provide
the Service or provided to Customer in conjunction with
providing the Service, or embedded in the 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, and that the Device is exclusively for use in
connection with the Service and that Constant Touch Communications,
Inc 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 Constant Touch Communications,
which Constant Touch Communications 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
Constant Touch Communications 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.
1.6
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, without express permission
from Constant Touch Communications in each instance which Constant Touch Communications,
Inc may deny in its sole discretion. Constant Touch Communications,
Inc. Constant Touch Communications 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 a disconnect fee, all of which
immediately become due and payable. You agree not to
hack or disrupt the service or to make any use of the
Service that is inconsistent with its intended purpose
or to attempt to do so.
1.7
Theft of Service
You agree to notify Constant Touch Communications immediately, in
writing or by calling the Constant Touch Communications customer support
line, if the Device is stolen or if you become aware
at any time that your Service is being stolen or fraudulently
used. When you call or write, you must provide your
account number and a detailed description of the circumstances
of the Device theft or fraudulent use of Service. Failure
to do so in a timely manner may result in the termination
of your Service and additional charges to you. Until
such time as Constant Touch Communications, Inc receives notice of
the theft or fraudulent use, you will be liable for
all use of the Service using a Device stolen from you
and any and all stolen Service or fraudulent use of
the Service.
1.8
Return of Device
The Device may be returned to Constant Touch Communications within
fourteen (14) days of the line termination of Service
to receive a credit for the Retail $39.99 disconnect
fee (refer to section 4.6 of this document regarding
termination fees), provided: (i) you have Customer retained,
and return along with the Device, proof of purchase
and original packaging and (ii) contents are undamaged
and in original condition, reasonable wear and tear
excluded; (iii) and all parts, accessories, documentation
and packaging materials are returned; and (iv) equipment
is returned with a valid return authorization number
obtained from Constant Touch Communications, Inc's customer care department.
You are responsible for the cost and risk of return
shipping of equipment. If you receiveCustomer receives
cartons and/or Devices that are visibly damaged, you
mustplease note the damage on the carrier's freight
bill or receipt and keep a copy. In such event, you
must keepKeep the original carton, all packing materials
and parts intact in the same condition in which they
were received from the carrier and contact Constant Touch Communications'
customer care department immediately. To obtain a return
authorization number, you must contact billing@ConstantTouch.com
808-235-227. Does not apply to Constant Touch Communications, Inc
CTC Enterprise customers. Warranty coverage varies depending
on the type of Device that Customer chooses. Please
refer to the Constant Touch Communications warranty materials included
in the packaging of your Device(s).
1.9 Number Transfer on Service Termination
Upon termination of the Service, Constant Touch Communications, Inc
may, solely at its sole the Company's discretion, release
the telephone number that was ported in from a previous
service provider to Constant Touch Communications by you and used
in connection with your Service provisioned by Constant Touch Communications
to your new service provider, if such new service provider
is able to accept such number, upon your termination
of the Service, and provided (i) your account has been
terminated; and (ii) your Constant Touch Communications account is
completely current including payment for all charges
and disconnect fees; and (iii) you request the transfer
upon terminating your account.
1.10
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 Constant Touch Communications. The Service
is subject to different regulatory treatment than phone
service. This treatment may limit or otherwise affect
your rights of redress before Federal and State telecommunications
regulatory agencies.
1.11
Ownership and Risk of Loss
You shall be deemed 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 to you until
the time (if any) when it is returned by you pursuant
to Section 1.8 and has been received by Constant Touch Communications,
Inc.
1.12
No 0+ Calling; May Not Support x11 Calling
Constant Touch Communications, Inc's Service does not support 0+ calling
(including without limitation collect, third party billing
or calling card calling). Constant Touch Communications, Inc's Service
may not support 311, 511 and/or other x11 (other than
911 and 411, which are provided for elsewhere in this
Agreement) services in one or more (or all) service
areas.
2.
EMERGENCY SERVICES- 911 DIALING
2.1
Non-Availability of Traditional 911 or E911 Dialing
Service:
You acknowledge and understand that the Service does
NOT support traditional 911 or E911 access to emergency
services. The Company will soon offer a limited 911-type
service available only on Constant Touch Communications Devices as
described herein, but you acknowledge and understand
that 911-type dialing is NOT automatic -- you must separately
take affirmative steps, as described in this Agreement
and on Constant Touch Communications, Inc's website, to activate such
911-type dialing capabilities and that such 911-type
dialing is different in a number of important ways (some,
but not necessarily all, of which are described in this
Agreement) from traditional 911 service, as described
herein. Constant Touch Communications 911 dialing cannot be used in
conjunction with a Constant Touch Communications Soft Phone application
and is only available on Constant Touch Communications-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 utilize the Service
as to the non-availability of traditional 911 or E911
dialing from your Constant Touch Communications Service and Device(s).
If you activate Constant Touch Communications 911-type dialing service,
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 as to the important
differences and limitations of Constant Touch Communications 911 dialing
service as compared with traditional 911 or E911 dialing,
as set forth in this Agreement.
2.2
Description of 911-Type Dialing Capabilities - Activation
Required
The Company does offer a 911-type dialing service that
is different in a number of important ways from traditional
911 service. You acknowledge and understand that 911-type
dialing is NOT automatic. You must successfully activate
the 911 dialing feature by following the instructions
from the "Dial 911" link on your dashboard.
You acknowledge and understand that you cannot dial
911 from this line unless and until you have received
a confirming email. Once you have received a confirming
email that 911 dialing has been successfully activated,
you may dial 911 as needed. When you dial 911, your
call is routed from the Constant Touch Communications network to the
Public Safety Answering Point (PSAP) or local emergency
service personnel designated for the address that you
listed at the time of activation. You acknowledge and
understand that when you dial 911 from your Constant Touch Communications
equipment it is intended that you will be routed to
the general telephone number for the PSAP or local emergency
service provider (which may not be answered outside
business hours), and may not be routed to the 911 dispatcher(s)
who are specifically designated to receive incoming
911 calls using traditional 911 dialing. Constant Touch Communications,
Inc relies on third parties for the forwarding of information
underlying such routing, and accordingly Constant Touch Communications,
Inc and its third party provider(s) disclaim any and
all liability or responsibility in the event such information
or routing is incorrect. As described herein, this 911-type
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.
Neither Constant Touch Communications, Inc nor its officers or employees
may be held liable for any claim, damage, or loss, and
you hereby waive any and all such claims or causes of
action, arising from or relating to 911 dialing unless
it is proven that the act or omission proximately causing
the claim, damage, or loss constitutes gross negligence,
recklessness, or intentional misconduct on the part
of Constant Touch Communications, Inc. You agree to indemnify and
hold harmless Constant Touch Communications, Inc and its third party
provider from any claim or action arising out of misroutes
of 911 calls, including but not limited to your failure
to follow correct activation procedures for 911 calling
or your provision to Constant Touch Communications, Inc of incorrect
information in connection therewith.
2.3
Service Outage:
2.3.1 Power Failure or Disruption Outage
You acknowledge and understand that 911 dialing does
not function in the event of a power failure or disruption.
Should there be an interruption in the power supply,
the Service and 911 dialing will not function until
power is restored. A power failure or disruption may
require the Customer to reset or reconfigure equipment
prior to utilizing the Service or 911 dialing.
2.3.2
Broadband Service / ISP Outage or Termination / Suspension
or Termination by Constant Touch Communications, Inc
You
acknowledge and understand that service outages or suspension
or termination of service by your broadband provider
and/or ISP or by Constant Touch Communications, Inc will prevent ALL
Service including 911 dialing.
2.3.3
Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages
due to suspension of your account as a result of billing
issues will prevent ALL Service, including 911dialing.
2.3.4
Other Service Outages
You acknowledge and understand that if there is a service
outage for ANY reason, such outage will prevent ALL
Service, including 911 dialing. Such outages may occur
for a variety of reasons, including, but not limited
to those reasons described elsewhere in this Agreement.
2.3.5
Limitation of Liability and Indemnification
You acknowledge and understand that the Company's liability
is limited for any Service outage and/or inability to
dial 911 from your line or to access emergency service
personnel, as set forth in this document. You agree
to defend, indemnify, and hold harmless Constant Touch Communications,
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 absence, failure or outage of the Service, including
911 dialing and/or 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.
2.4 Requires Activation:
You acknowledge and understand that 911 dialing does
not function unless you have successfully activated
the 911dialing feature by following the instructions
from the "Dial 911" link, and until such later
date that such activation has been confirmed to you
through a confirming email. You acknowledge and understand
that you cannot dial 911 from this line unless and until
you have received a confirming email.
2.5
Failure to Designate the Correct Physical Address When
Activating 911 Dialing:
Failure to provide the current and correct physical
address and location of your Constant Touch Communications equipment
will result in any 911 communication you may make being
routed to the incorrect local emergency service provider.
2.6
Requires Re-Activation if You Change Your Number or
Add or Port New Numbers:
You acknowledge and understand that 911 dialing does
not function if you change your phone number or (for
such newly added or ported numbers) if you add or port
new numbers to your account, unless and until you have
successfully activated the 911 dialing feature for your
changed, newly added or newly ported number by following
the instructions from the "Dial 911" link
on your dashboard, and until such later date that such
activation has been confirmed to you through a confirming
email. 911 dialing must be re-activated. Although you
may have activated 911 dialing with your former Constant Touch Communications
phone number, you must separately activate 911 dialing
for any changed or newly added or ported number.
2.7
Requires Re-Activation if You Move or Change Location
2.7
Change of Physical Location of Constant Touch Communications Equipment:
You acknowledge and understand that 911dialing does
not function properly or may not function at all if
you take your equipment with you away from the address
or physical location that you have designated.
2.8
Requires Re-Activation if You Move:
You acknowledge and understand that 911 dialing does
not function properly or at all if you move or otherwise
change the physical location of your Constant Touch Communications
equipment to a different street address, unless and
until you have successfully activated the 911 dialing
feature following the instructions from the "Dial
911" link on your dashboard, and until such later
date that such activation has been confirmed to you
through a confirming email. 911dialing must be re-activated
although you may have activated 911 dialing using your
former address, and you must separately activate 911
dialing for any new physical address. Failure to provide
the current and correct physical address and location
of your Constant Touch Communications equipment will result in any
911 dialing you may make being routed to the incorrect
local emergency service provider
2.9
Possibility of Network Congestion and/or Reduced Speed
for Routing or Answering 911:
Due
to the technical constraints on the manner in which
it is technically possible to provide the 911 dialing
feature for Constant Touch Communications service at this time, you
acknowledge and understand that there is a greater possibility
of network congestion and/or reduced speed in the routing
of a 911 communication made utilizing your Constant Touch Communications
equipment as compared to traditional 911 dialing over
traditional public telephone networks. You acknowledge
and understand that 911 dialing from your Constant Touch Communications
equipment will be routed to the general telephone number
for the local emergency service provider (which may
not be answered outside business hours), 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
telephone number for the local emergency service provider
will produce a busy signal or will take longer to answer,
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. You acknowledge
and accept that Constant Touch Communications, Inc relies on third
parties for the forwarding of information underlying
such routing, and accordingly Constant Touch Communications, Inc and
its third party provider(s) disclaim any and all liability
or responsibility in
2.10
Automated Number Identification:
At this time in the technical development of Constant Touch Communications
911 dialing, it may or may not be possible for the Public
Safety Answering Point (PSAP) and the local emergency
personnel to identify your phone number when you dial
911. Constant Touch Communications' 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 are
not yet always technically capable of doing so. You
acknowledge and understand that PSAP and emergency personnel
may or may not be able to identify your phone number
in order to call you back 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.
2.11
Automated Location Identification:
At this time in the technical development of Constant Touch Communications
911 Dialing, 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 dial 911. 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.
2.12
Alternative 911 Arrangements
You acknowledge that Constant Touch Communications does not offer
primary line or lifeline services. You should always
have an alternative means of accessing traditional E911
services.
3. CHANGES TO THIS AGREEMENT
Constant Touch Communications may change the terms and conditions
of this Agreement from time to time. Notices will be
considered given and effective on the date posted on
to the "Service Announcements" section of
Constant Touch Communications, Inc's website (currently located at
http://www.ConstantTouch.com). Such changes will become
binding on Customer, on the date posted to the Constant Touch Communications,
Inc website and no further notice by Constant Touch Communications,
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 and also supersedes
any written terms provided to Retail Customers in connection
with retail distribution, including without limitation
any written terms enclosed within the packaging of the
Device... Agreement posted supersedes all previously
agreed to electronic and written Terms of Service.
4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
4.1
Billing
You must give us a valid credit card number (Visa, MasterCard,
Discover, American Express or any other issuer then-accepted
by Constant Touch Communications, Inc) when the Service is activated.
Constant Touch Communications, Inc reserves the right to stop accepting
credit cards from one or more issuers. If the card expires,
you close your account or your billing address changes,
or the card is cancelled and replaced owing to loss
or theft, you must advise Constant Touch Communications at once.
We
will bill all charges, applicable taxes and surcharges
monthly in advance (except for usage-based charges,
which will be billed monthly in arrears, and any other
charges which Constant Touch Communications, Inc decides to bill in
arrears) to your credit card, including but not limited
to: activation fees, monthly Service fees, international
usage charges, advanced feature charges, equipment purchases,
disconnect fees and shipping and handling charges. Constant Touch Communications
reserves the right to bill at more frequent intervals
if the amount due at any time exceeds $50. Any usage
charges will be billed in increments that are rounded
up to the nearest minute except as otherwise set forth
in the rate schedules found on Constant Touch Communications, Inc's
website.
Enterprise
Invoices and Payment. The date the Services are installed
and available, or the delivery date specified in the
Order, whichever is later, will be the date on which:
(a) all non-recurring charges will be invoiced in full,
and (b) invoicing for all recurring charges will commence.
Fixed recurring charges for partial months will be prorated
on a 30-day basis. Payment in U.S. currency will be
due upon receipt of the invoice. Interest charges of
one and three-quarter percent (1 3/4%) per month or
the highest rate permitted by law, whichever is less,
will accrue daily on all amounts not paid within thirty
(30) days of the date of the invoice. Customer will
pay all sales and use taxes, as well as duties or levies,
on Services
4.2
Billing Disputes
You must notify Constant Touch Communications in writing within 7
days after receiving your credit card statement if you
dispute any Constant Touch Communications charges on that statement
or such dispute will be deemed waived. Billing disputes
should be notified to the following address:
Customer Care Billing Department
Constant Touch Communications
305 Hahani Street
Suite 214
Kailua, HI 96734
or
billing@Constanttouch.com
or
808-235-2277
4.3
Payment
Constant Touch Communications only accepts payments by credit card
for Residential and Small Business. Enterprise accounts
are charged and billed on a post paid basis evry month.
Your initial use of the Service authorizes Constant Touch Communications
to charge the credit card account number on file with
Constant Touch Communications, including any changed information given
Constant Touch Communications if the card expires or is replaced,
or if you substitute a different card, for Constant Touch Communications
charges that accrue during the billing cycle. This authorization
will remain valid until 30 days after Constant Touch Communications
receives your written notice terminating Constant Touch Communications'
authority to charge your credit card, whereupon Constant Touch Communications,
Inc will charge you the disconnect fee and any other
outstanding charges and terminate the Service. Constant Touch Communications,
Inc. Constant Touch Communications may terminate your Service at any
time in its sole discretion, if any charge to your credit
card on file with Constant Touch Communications is declined or reversed,
your credit card expires and you have not provided Constant Touch Communications,
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 Constant Touch Communications
for ALL CHARGES ACCRUED BEFORE TERMINATION and for charges
incurred by Constant Touch Communications, Inc in collecting such
amounts Constant Touch Communications owing to your non-payment, such
as (but not limited to) collection costs and attorney's
fees.
4.4
Termination/Discontinuance of Service
Constant Touch Communications reserves the right to suspend or discontinue
providing the Service generally, or to terminate your
Service, at any time in its sole discretion. If Constant Touch Communications
discontinues providing the Service generally, or terminates
your Service in its discretion 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 Constant Touch Communications, Inc or of a third party
provider to which Constant Touch Communications, Inc is subject),
you will be responsible for the full month's charges
to the end of the current term, including without limitation
unbilled charges, plus a disconnect fee, all of which
immediately become due and payable.
4.5
Taxes
Customer is responsible for, and shall pay any applicable
federal, state, 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 Customer's subscription or use or payment
for the Service or a Device. Such amounts are in addition
to payment for the Service or Devices and will be billed
to your account. If Customer is exempt from payment
of such taxes, it will provide Constant Touch Communications with
an original government-issued certificate that satisfies
applicable legal requirement attesting to tax-exempt
status. Tax exemption will only apply from and after
the date Constant Touch Communications receives the Tax Exempt Document.
4.6
Disconnect Fee
Customer will be charged a disconnect fee of $109.99
per voice line upon termination of Service for any reason
or for convenience by Customer. The disconnect fee becomes
due and payable immediately upon termination and will
billed directly to Customer's credit card. If Customer
has multiple lines, Customer will be charged a disconnect
fee of $109.99 per line for each line disconnected.
To receive a credit for the disconnect fee, Customer
must return the Device(s) undamaged and in original
condition within fourteen (14) days of termination.
Constant Touch Communications will not credit Customer if the Device(s)
is damaged or not in its original condition as received
by the Customer. In the event Customer disconnects multiple
lines, Constant Touch Communications will issue Customer a credit
for all disconnect fees upon receipt of all Devices
(including without limitation e.g., Multimedia Terminal
Adapters, etc.) in accordance with this Section and
Section 1.8. Disconnect Fee does not apply to CTC Enterprise
Customers.
4.7
Money Back Guarantee
4.7.1Constant Touch Communications, Inc offers a 14-day Money Back
Guarantee (30 or 90 days for Retail Customers; see offer
details in advertising or online content of the retailer
from whom Retail Customer purchased Constant Touch Communications
offers a 14-day money back guarantee, applicable to
one primary line per account, not additional or secondary
lines. Under terms of the Money-Back Guarantee, Constant Touch Communications
refunds the activation fee, first month of service,
shipping charges and waives the disconnect fee. Constant Touch Communications
reserves the right to terminate or revoke the Money-Back
Guarantee at any time, without prior notice.
User
must cancel service within 14 days of the account activation.
Equipment must be returned within 14 days after cancellation
pursuant to Sections 1.8 and 4.6; and (iii) must not
have exceeded 250 minutes of usage (500 minutes for
Retail Customers). . Usage must not exceed 250 minutes
within the first 14 days of service. User is responsible
for any charges for overage, international usage (including
the charges described in Section 4.9), payphone calls
to Constant Touch Communications, Inc toll free numbers and traffic
or directory assistance. THIS MONEY BACK GUARANTEE DOES
NOT APPLY TO ACCOUNTS EXCEEDING 250 MINUTES (500 MINUTES
FOR RETAIL CUSTOMERS) OF USAGE AND SUCH ACCOUNTS ARE
NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED
HEREIN.
All
returned equipment must be in the original packaging
with the UPC or bar code intact. All components, manuals
and registration card(s) must be included. Equipment
must be returned with a valid return authorization number
obtained from Constant Touch Communications Customer Care. User is
responsible for return shipping of equipment. THE MONEY
BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO
MEET ALL SUCH REQUIREMENTS.
To
obtain a return authorization number, user must contact
billing@Constanttouch.com or 1-808-235-2277.
4.7.2
CTC Money Back Guarantee
Constant Touch Communications, Inc offers CTC Retail and Small Busines
subscribers a 30 day Money Back Guarantee from date
of activation of service (such 30 day period, the "Warranty
Period"), applicable only to User's first-ordered
service package, not to additional or secondary orders.
Under terms of this Money Back Guarantee, Constant Touch Communications,
Inc refunds the activation fee and first month of service,
provided the terms described below are satisfied. Federal
excise taxes and any other applicable taxes cannot be
refunded. Constant Touch Communications, Inc reserves the right to
terminate or revoke this Money Back Guarantee at any
time, without prior notice.
In
order to be entitled to this Money Back Guarantee, User
(i) must cancel service within the 30 day Warranty Period
after the account activation; (ii) must not have exceeded
5,000 minutes of usage. User remains responsible for
any charges for domestic usage in excess of the amount
included within the Plan to which User subscribes, international
usage (including the charges described in Section 4.9),
payphone calls to Constant Touch Communications, Inc toll free numbers
and directory assistance. THIS MONEY BACK GUARANTEE
DOES NOT APPLY TO ACCOUNTS EXCEEDING 5,000 MINUTES OF
USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND
OF ANY OF THE CHARGES DESCRIBED HEREIN.
4.8
Payphone Charges
If you make use of Constant Touch Communications, Inc's Toll Free
Plus feature any toll free feature that may be offered
by Constant Touch Communications, Inc in the future, you acknowledge
and agree that Constant Touch Communications, Inc is entitled to recover
from you any charges imposed on Constant Touch Communications, Inc
by payphone owners or operators, either directly or
indirectly through Constant Touch Communications, Inc's suppliers
in connection with toll free calls made to your number,
or any charges imposed on Constant Touch Communications, Inc by its
suppliers to recover such costs. Constant Touch Communications, Inc
may recover these amounts by means of a per-call charge,
rounded up to the next cent, or in such other fashion
as Constant Touch Communications, Inc deems appropriate for the recovery
of these costs.
4.9
Charges for Directory Calls
Constant Touch Communications, Inc will charge 99 cents for each call
made to Constant Touch Communications, Inc directory assistance.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1
Limitation of Liability
Constant Touch Communications shall not be liable for any delay or
failure to provide the Service, including 911 dialing,
at any time or from time to time, or any interruption
or degradation of voice quality that is caused by any
of the following:
1.) act or omission of an underlying carrier, service
provider, vendor or other third party;
2.) equipment, network or facility failure;
3.) equipment, network or facility upgrade or modification;
4.) force majeure events such as (but not limited to)
acts of god; strikes; fire; war; riot; government actions;
5.) equipment, network or facility shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or facility failure
caused by the loss of power to Customer; or
8) outage of Customer's ISP or broadband service provider;
9) act or omission of Customer or any person using the
Service or Device provided to Customer; or
10).) any other cause that is beyond Constant Touch Communications'
control, including without limitation a failure of or
defect in any Device, the failure of an incoming or
outgoing communications, the inability of communications
to be connected or completed , including without limitation
911 dialing) to be connected or completed, , or degradation
of voice quality.
Constant Touch Communications' liability for any failure or mistake;
(ii) any claim with respect to Constant Touch Communications, Inc's
performance or nonperformance hereunder or (iii) any
Constant Touch Communications, Inc act or omission in connection with
the subject matter hereof shall in no event exceed Service
charges with respect to the affected time period.
5.2
No Consequential Damages
In no event shall Constant Touch Communications, its officers, directors,
employees, affiliates or agents or any other service
provider who furnishes services to Customer in connection
with this Agreement or the Service be liable for any
incidental, indirect, special, punitive, exemplary or
consequential damages, or for any damages, including
but not limited to loss of data, loss of revenue or
profits, or arising out of or in connection with the
use or inability to use the Service, including inability
to be able to dial 911 or to access emergency service
personnel through the Service. The limitations set forth
herein apply to claims founded in breach of contract,
breach of warranty, products liability, tort and any
and all other theories of liability and apply whether
or not Constant Touch Communications was informed of the likelihood
of any particular type of damages.
5.3
Indemnification
Customer agrees to defend, indemnify, and hold harmless
Constant Touch Communications, 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 this Agreement,
the Services, including 911dialing, or the Device. This
paragraph shall survive termination of this Agreement.
5.4
No Warranties on Service
Constant Touch Communications makes no warranties, express or implied,
including but not limited to, any implied warranties
of merchantability or fitness of the Service or the
Device for a particular purpose. Constant Touch Communications does
not warrant that the Service will be without Service
failure, delay, interruption, error, degradation of
voice quality or loss of content, data or information.
Neither Constant Touch Communications nor its officers, directors,
employees, affiliates or agents or any other service
provider or vendor who furnishes services or products
to Customer in connection with this Agreement or the
Service will be liable for unauthorized access to Constant Touch Communications'
or Customer's transmission facilities or premises equipment
or for unauthorized access to, or alteration, theft
or destruction of, Customer's data files, programs,
procedures or information through accident, fraudulent
means or devices or any other method, regardless of
whether such damage occurs as a result of Constant Touch Communications'
or its service provider's or vendors' negligence.
Statements
and descriptions concerning the Service or Device, if
any, by Constant Touch Communications or Constant Touch Communications' agents or
installers are informational and are not given as a
warranty of any kind.
5.5
No Warranties, or Limited Warranties, for Devices
If Customer received the Device new from Constant Touch Communications
and the Device included a limited warranty at the time
of purchase, Customer 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 Customer's Device did not include a limited warranty
from Constant Touch Communications at the time of purchase, Customer
agrees that it accepts its Device "as is"
and that Customer is not entitled to replacement or
refund in the event of any defect, except that for Retail
Customers only, Constant Touch Communications, Inc will provide a
limited warranty on the Device as to manufacturing defects
only for a period of one (1) year from the date of purchase.
This Retail Customer limited warranty shall not apply
to any defect or failure other than a manufacturing
defect, and, without limiting the generality of the
foregoing, shall not apply to any defect caused by damage
in transit, retailer handling or Retail Customer handling.
Retail Customer's sole remedy for any breach of this
Retail Customer limited warranty is to obtain a repaired
or replacement Device, by following the return procedures
set forth in Section 1.8. Retail Customer must include
with the returned Device a letter stating that the Retail
Customer is returning the Device for warranty repair
or replacement and stating the nature of the defect.
This Retail Customer limited warranty shall also apply
in lieu of the limited warranty included with the Device
if such included limited warranty is less favorable
to Retail Customer than that contained herein.
OTHER
THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH
IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL
CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN,
Constant Touch Communications, INC 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 CUSTOMER'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. DEVICE WARRANTIES
DO NOT APPLY TO CTC ENTERPRISE CUSTOMERS..
5.6
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.
5.7
Content
You are liable for any and all liability that may arise
out of the content transmitted by or to you or Users
using the Services. You shall assure that your or User's
use of the Services and content will at all times comply
with all applicable laws, regulations and written and
electronic instructions for use. Constant Touch Communications reserves
the right to terminate or suspend affected Services,
and/or remove Your or Users' content from the Services,
if Constant Touch Communications determines that such use or content
doer not conform with the requirements set forth in
this Agreement or interferes with Constant Touch Communications' ability
to provide Services to you or others or receives notice
from anyone that Your or Users' use or Content may violate
any laws or regulations. Constant Touch Communications' actions or
inaction under this Section shall not constitute review
or approval of Your or Users' use or Content. You will
indemnify and hold Constant Touch Communications against any and all
liability arising from the content transmitted by or
to you or to Users using the Services. A "User"
means any person, whether authorized or unauthorized,
using the Service and/or Device provided to you.
6.
GOVERNING LAW / RESOLUTION OF DISPUTES
6.1
Mandatory Arbitration
Any dispute or claim between Customer and Constant Touch Communications
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 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 Customer will not bring, or join a
punitive or certified class action to arbitration or
seek to consolidate or bring previously consolidated
claims in arbitration. Customer 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 Constant Touch Communications
shall be governed by the laws of the State of Hawaii
without regard to its conflict of law provisions. You
and Constant Touch Communications agree to submit to the personal
and exclusive jurisdiction of the courts located within
the state of Hawaii. The failure of Constant Touch Communications
to exercise or enforce any right or provision of the
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 Constant Touch Communications'
website constitute the entire agreement between you
and Constant Touch Communications and govern your use of the Service,
superseding any prior agreements between you and Constant Touch Communications
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 Constant Touch Communications unless
and until posted in accordance with Section 3 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.
7.
PRIVACY
Constant Touch Communications Service utilizes, in whole or in part,
the public Internet and third party networks to transmit
voice and other communications. Constant Touch Communications is not
liable for any lack of privacy which may be experienced
with regard to the Service. Please refer to our Privacy
Policy at www.Constanttouch.com for additional information.
8.
CHANGES; NOTICES
Notice to Customer of any changes to the "Terms
of Service" shall be considered given by posting
to the "Service Announcements" section of
the Constant Touch Communications Web Site (currently located at http://www.Constant
Touch.com/features). Notice will be considered received
by Customer, and such changes will become binding on
Customer, on the date posted to the Constant Touch Communications
Web Site and no further notice by Constant Touch Communications is
required.
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