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1.
Agreement
2. Term
3. Service
4. Specific Terms of Use of Service and
Device
5. Lawful Use of Service and Device
6. Loss of Service Due to Power Failure or
Internet Service Outage or Termination or
Suspension or by My Cyber Phone.
7. Copyright / Trademark / Unauthorized
Usage of Device, Firmware or Software
8. Tampering with the Device or Service
9. Theft of
Service
10. Return
of Device
11. Number Transfer on Service Termination
12.
Service Distinctions
13. Ownership, Risk of Loss, and Delivery
14. No 0+ Calling; May Not Support x11
Calling
15. Emergency Services - 911 Dialing
16. Charges / Payments / Default / Taxes /
Termination
17. Money Back Guarantee; Limitations and
Conditions
18. Payphone
Charges
19. Charges for Directory Calls
20. Warranty And Liability Limitations /
Indemnification
21.
Disclaimer of Damages
22.
Indemnification
23.
No Warranties on Service
24. No Warranties, or Limited Warranties for
Devices
25. No Third Party Beneficiaries
26. Content
27.
Dispute Resolution
28. Governing
Law
29. Entire
Agreement
30. Severability
31. Privacy
1. Agreement
These Terms and Conditions constitute the
agreement (the "Agreement") between eVoice
International, Inc. ("My Cyber Phone", us or
we) and the user ("you," "user" or
"Customer") of eVoice International, Inc.’s
My Cyber Phone residential and small
business 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 My Cyber Phone’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 THE MY
CYBER PHONE 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 MY CYBER
PHONE AT THE TELEPHONE NUMBER ON THE CONTACT
PAGE OF THIS WEBSITE FOR FURTHER DIRECTIONS.
The Agreement governs the Service and any
devices, such as the 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
understand, and you agree to, the terms and
conditions of the Agreement, and you
represent that you are of legal age to enter
the Agreement and become bound by its terms.
My Cyber Phone 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
"Terms and Conditions" section of My Cyber
Phone’s web pages. Such changes will become
binding on Customer, on the date posted to
the My Cyber Phone website and no further
notice by My Cyber Phone 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.
The rates and charges for the Service, which
may be found at
www.mycyberphone.com,
are effective as of April 26, 2006 and are
subject to change. For your most current
rates and charges, the most current version
of the Agreement, or if you have questions
about your services, please visit our
website at
www.mycyberphone.com
(see Rates and Terms & Conditions link) or
call us at the contact number listed on the
contact page.
2. Term
Service is offered on a monthly basis for a
term which begins on the date that the first
phone call is completed or 30 days from the
date of the Service order, whichever is
first.
Subsequent terms of this Agreement
automatically renew on a monthly basis
without further action by you unless you
give My Cyber Phone 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
any applicable 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.
3. Service
3.1 Residential Use of Service and Device
If you have
subscribed to My Cyber Phone's
residential/home 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, 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 My Cyber Phone 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 My Cyber Phone's higher rates for
business/commercial service or revert
Service to a plan based on usage charging on
account of all periods, including past
periods, in which you use, or used, the
Service for commercial or governmental
purposes. My Cyber Phone reserves the right
to immediately terminate or modify the
Service, if My Cyber Phone determines, in
its sole discretion, that Customer's Service
is being used for non-residential or
commercial use.
3.2 Business Use of Service and
Device
If you have subscribed to My Cyber Phone’s
Business/Business Premium Plan, 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 My Cyber Phone
Business/Business Premium Plan does not
confer the right to use the service for
auto-dialing, continuous or extensive call
forwarding, telemarketing, fax broadcasting
or fax blasting. My Cyber Phone reserves the
right to immediately terminate, modify or
upgrade the Service, if My Cyber Phone
determines, in its sole discretion, that
Customer's Service is being used for any of
the aforementioned activities. If you have a
residential plan and are using the Services
for business purposes My Cyber Phone
reserves the right to cancel.
4. Specific Terms of Use of Service and
Device
4.1 Notice of Rate Changes
My Cyber Phone may change the prices and
charges for the Services from time to time.
My Cyber Phone may decrease prices without
providing advance notice. Changes to any
other rates, charges, or terms or conditions
in the Agreement will be published at
www.mycyberphone.com and will be
incorporated by reference into this
Agreement.
4.2 Calls to International Mobile
Telephones; International Special Services
Calls
My Cyber Phone advertised rates for
international calls are generally the rates
charged for calls to landline telephones.
Some 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. For a specific quote on calls to
a specific telephone number, please send an
email to
support@mycyberphone.com.
4.3 Rounding Policy
Calls are billed in one-minute increments.
For billing purposes, the length of each
metered call is calculated as follows: If
the computed length for a call includes a
fraction of a minute, the fraction is
rounded up to the nearest whole 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.
4.4 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 My Cyber Phone
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 My Cyber Phone for a
completed call. In these situations, My
Cyber Phone will charge for the call as if
the called party answered it.
4.5 International DIDs Or Phone
Numbers
Customers that have international
(non-United States) direct inward dial phone
numbers ("DIDs") are provided with these
numbers based on current United States and
overseas regulations. These regulations are
subject to change without notice and My
Cyber Phone may be required to discontinue
this service, without notice. My Cyber Phone
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.
4.6 International Services
4.6.1. 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 My Cyber Phone
services. You must conform to any
limitations or restrictions imposed by the
foreign carriers or agencies.
4.6.2. Foreign Carrier Acts or
Omissions.
a. When other U.S. or foreign carriers and
foreign telecommunications administrations
use facilities to establish connections to
points not reached by My Cyber Phone's
network, My Cyber Phone is not liable for
acts or omissions of other carriers or
foreign telecommunications administrations.
b. 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 are used in establishing
connections to points not reached by My
Cyber Phone's network, My Cyber Phone 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.
5. Lawful Use of Service and Device
5.1. 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 My Cyber Phone’s 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. My Cyber Phone reserves
the right to terminate your service
immediately and without advance notice if My
Cyber Phone, 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.
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 My
Cyber Phone against any and all liability
for any such use that fails to comply with
this Section. If My Cyber Phone in its sole
discretion believes that you have violated
the above restrictions, My Cyber Phone may
forward the objectionable material, as well
as your communications with My Cyber Phone
and your personally identifiable information
to the appropriate authorities for
investigation and prosecution and you hereby
consent to such forwarding.
5.2. 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, My
Cyber Phone 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 sole risk, including the risk that
such activity violates local laws in the
country where you do so. You are liable for
any and all such use of the Service and/or
Device by yourself or any person making use
of the Service or Device provided to you and
agree to indemnify and hold harmless My
Cyber Phone against any and all liability
for any such use. Should the removal from
the United States 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 My
Cyber Phone against any and all liability
for such violation.
6. Loss of Service Due to Power Failure or
Internet Service Outage or Termination or
Suspension or by My Cyber Phone.
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 My Cyber
Phone) 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 My Cyber Phone 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 My Cyber Phone suspend or terminate
your Service, the Service will not function
until such time as My Cyber Phone 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).
7. 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 you in conjunction with
providing the Service, or embedded in the
Device, and all Services, information,
documents and materials on eVoice
International, Inc. or My Cyber Phone'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
eVoice International, Inc. or My Cyber Phone
are and shall remain the exclusive property
of eVoice International, Inc. and nothing in
this Agreement shall grant you the right or
license to use any of such marks. You
acknowledge that you are not given any
license to use the firmware or software used
to provide the Service or provided to you in
conjunction with providing the Service, or
embedded in the Device, other than a
nontransferable, revocable license to use
such firmware or software in object code
form (without making any modification
thereto) strictly in accordance with the
terms and conditions of this Agreement. You
expressly agree that the Device is
exclusively for use in connection with the
Service and that My Cyber Phone 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 My Cyber
Phone, which My Cyber Phone 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 eVoice
International, Inc and My Cyber Phone
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.
8. 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 My
Cyber Phone in each instance, which My Cyber
Phone may deny in its sole discretion. My
Cyber Phone 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.
9.
Theft of Service
You agree to notify My Cyber Phone
immediately, in writing, by electronic mail
or by calling the My Cyber Phone 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. 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. 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
or the Internet. This includes, but is not
limited to, modem hijacking, wireless
hijacking or other fraud arising out a
failure of your internal/corporate
procedures. My Cyber Phone 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.
10. Return of
Device
The Device may be returned to My Cyber Phone
within fourteen (14) days of the termination
of Service to receive a credit for the
$39.99 disconnect fee, provided: (i) you
have retained, and return along with the
Device, proof of purchase and original
packaging; (ii) contents are undamaged and
in original condition, reasonable wear and
tear excluded; (iii) all parts, accessories,
documentation and packaging materials are
returned; and (iv) equipment is returned
with a valid return authorization number
obtained from My Cyber Phone’s customer care
department. You are responsible for the cost
and risk of return shipping of equipment. If
you receive cartons and/or Devices that are
visibly damaged, you must note the damage on
the carrier's freight bill or receipt and
keep a copy. In such event, you must keep
the original carton, all packing materials
and parts intact in the same condition in
which they were received from the carrier
and contact My Cyber Phone's customer care
department immediately. To obtain a return
authorization number, you must contact
support@mycyberphone.com.
11. Number Transfer on Service Termination
11.1 Upon termination of the
Service
My Cyber Phone may, at
its sole discretion, release a telephone
number that was ported in from a previous
service provider to My Cyber Phone by you
and used in connection with your Service
provisioned by My Cyber Phone to your new
service provider, if such new service
provider is able to accept such number, and
provided that (i) your account has been
terminated; (ii) your My Cyber Phone account
is completely current including payment for
all charges and disconnect fees; and (iii)
you request the transfer upon terminating
your account.
11.2 No Obligation to Assist in
Switching Carriers.
If you either
voluntarily cancel your My Cyber Phone
account or if My Cyber Phone cancels your
service for any reason set forth above, My
Cyber Phone will have no obligation
whatsoever to assist you in any respect in
switching from My Cyber Phone to another
carrier. Upon cancellation of Service and
upon payments of all outstanding charges,
Customer may apply for the transfer of their
telephone number to another carrier. As
third parties supply telephone numbers, the
ability to and delay of releasing the number
will depend on the policies and capability
of the carrier providing the number.
Provider shall not be held responsible for
any delays or the inability to release a
number.
12.
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 My Cyber Phone. The Service is
subject to different regulatory treatment
than telephone service. This treatment may
limit or otherwise affect your rights of
redress before Federal, State or Provincial
telecommunications regulatory agencies.
13. Ownership, Risk of Loss, and Delivery
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 and has
been received by My Cyber Phone. The
Adapter(s) or Device(s) shall be shipped to
the Customer within 24 hours of the date of
the Service order, based on the usual and
customary business workweek. Billing will
occur as delineated in section 2 above.
Customer should receive the Device(s) within
5-7 business days from the time of
activation. My Cyber Phone is not
responsible for
incorrect shipping information provided to
My Cyber Phone by Customer or addresses
deemed undeliverable by the delivery agency.
14. No 0+ Calling; May Not Support x11
Calling
My Cyber Phone’s Service does not support 0+
calling (including without limitation
collect, third party billing or calling card
calling). My Cyber Phone’s Service may not
support 311, 411, 511 and/or other x11
(other than 911, which are provided for
elsewhere in this Agreement) services in one
or more (or all) service areas.
15. Emergency Services - 911 Dialing
15.1 911
Dialing.
My Cyber Phone 911
Dialing is different than traditional 911
service.
Most of our customers (other than WiFi and
Softphone customers) have access to either
basic 911 or Enhanced 911 (E911) service.
With E911 service, when you dial 911, your
telephone number and registered address is
simultaneously sent to the local emergency
center assigned to your location, and
emergency operators have access to the
information they need to send help and call
you back if necessary. Customers in
locations where the emergency center is not
equipped to receive your telephone number
and address have basic 911. With basic 911,
the local emergency operator answering the
call will not have your call back number or
your exact location, so you must be prepared
to give them this information. Until you
give the operator your phone number, he/she
may not be able to call you back or dispatch
help if the call is not completed or is not
forwarded, is dropped or disconnected, or if
you are unable to speak. As additional local
emergency centers become capable of
receiving our customers' information, My
Cyber Phone will automatically upgrade
customers with basic 911 to E911 service. My
Cyber Phone will not give you notice of the
upgrade.
Certain customers do not have access to
either basic 911 or E911. If you do not have
access to basic 911 or E911 your 911 call
cannot be completed. In this event, neither
Provider nor its officers or employees will
be liable for any costs, injury, disability,
loss of life, damages, legal action or any
other loss resulting from the use of the
Service or non-availability of the Service
to call emergency service providers.
Provider does not provide a national
emergency call center.
15.2
Notify All Users.
You should inform any
household residents, guests and other third
persons who may be present at the physical
location where you utilize the Service of
the important differences in and limitations
of My Cyber Phone 911 Dialing as compared
with basic 911 or E911. The documentation
that accompanies each Device that you
purchase will include a sticker concerning
the potential non-availability of basic 911
or E911 (the '911 Sticker'). It is your
responsibility, in accordance with the
instructions that accompany each Device, to
place the 911 Sticker on each Device that
you use with the Service. If you did not
receive a 911 Sticker with your Device, or
you require additional 911 Stickers, please
contact our customer care department at
1-877-4MYCYBER.
15.3
Registration of Physical Location Required.
For each phone number
that you use for the Service, you must
register with My Cyber Phone the physical
location where you will be using the Service
with that phone number. When you move the
Device to another location, you must
register your new location. If you do not
register your new location, any call you
make using the 911 Dialing feature may be
sent to an emergency
center near your old address. You will
register your initial location of use when
you subscribe to the Service. Thereafter,
you may register a new location by following
the instructions from the '911' registration
link on your My Cyber Phone web account
dashboard features page. For purposes of the
911 Dialing feature, you may only register
one location at a time for each phone line
you use with the Service. Provider does not
currently support 911 or E911 for WiFi or
SoftPhones.
15.4
Confirmation of Activation Required.
Your 911 Dialing
feature will not be activated for any phone
line that you are using with the Service,
unless and until you receive an email from
us confirming that the 911 Dialing feature
has been activated for that phone line.
15.5
Service Outages.
(a) Service Outages Due to Power Failure or
Disruption.
911 Dialing does not
function in the event of a power failure or
disruption. If there is an interruption in
the power supply, the Service, including 911
Dialing, will not function until power is
restored. Following a power failure or
disruption, you may need to reset or
reconfigure the Device prior to utilizing
the Service, including 911 Dialing.
(b)
Service Outages Due to Internet Outage or
Suspension or Termination of Broadband
Service or ISP Service.
Service outages or
suspensions or terminations of service by
your broadband provider or ISP will prevent
all Service, including 911 Dialing, from
functioning.
(c)
Service Outage Due to Termination of Your My
Cyber Phone Account.
Service outages due to
termination of your account will prevent all
Service, including 911 Dialing, from
functioning.
(d)
Service Outages Due to ISP or Broadband
Provider Blocking of Ports or Other Acts.
Your ISP or broadband
provider or other third party may
intentionally or inadvertently block the
ports over which the Service is provided or
otherwise impede the usage of the Service.
In that event, provided that you alert us to
this situation, we will attempt to work with
you to resolve the issue. During the period
that the ports are being blocked or your
Service is impeded, and unless and until the
blocking or impediment is removed or the
blocking or impediment is otherwise
resolved, your Service, including the 911
Dialing feature, may not function. You
acknowledge that My Cyber Phone is not
responsible for the blocking of ports by
your ISP or broadband provider or any other
impediment to your usage of the Service, and
any loss of service, including 911 Dialing,
which may result. In the event you lose
service as a result of blocking of ports or
any other impediment to your usage of the
Service, you will continue to be responsible
for payment of the Service charges unless
and until you terminate the Service in
accordance with this Agreement.
(e) Other
Service Outages.
If there is a Service
outage for any reason, such outage will
prevent all Service, including 911 Dialing,
from functioning. Such outages may occur for
a variety of reasons, including, but not
limited to, those reasons described
elsewhere in this Agreement.
15.6
Re-Activation Required if You Change Your
Number or Add or Port New Numbers.
911 Dialing does not
function if you change your phone number or
if you add or port new phone numbers to your
account, unless and until you successfully
register your location of use for each
changed, newly added or newly ported phone
number.
15.7 Network Congestion; Reduced Speed for
Routing or Answering 911 Dialing Calls.
There may be a greater possibility of network
congestion and/or reduced speed in the
routing of a 911 Dialing call made utilizing
the Service as compared to traditional 911
dialing over traditional public telephone
networks.
15.8
Disclaimer of Liability and Indemnification.
We do not have any control over whether, or the
manner in which, calls using our 911 Dialing
service are answered or addressed by any
local emergency response center. We disclaim
all responsibility for the conduct of local
emergency response centers and the national
emergency calling center. We rely on third
parties to assist us in routing 911 Dialing
calls to local emergency response centers
and to a national emergency calling center.
We disclaim any and all liability or
responsibility in the event such third party
data used to route calls is incorrect or
yields an erroneous result. Neither My Cyber
Phone 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 our 911 Dialing service unless
such claims or causes of action arose from
our gross negligence, recklessness or
willful misconduct. You shall defend,
indemnify, and hold harmless My Cyber Phone,
its officers, directors, employees,
affiliates and agents and any other service
provider who furnishes services to you in
connection the Service, from any and all
claims, losses, damages, fines, penalties,
costs and expenses (including, without
limitation, attorneys fees) by, or on behalf
of, you or any third party relating to the
absence, failure or outage of the Service,
including 911 Dialing, incorrectly routed
911 Dialing calls, and/or the inability of
any user of the Service to be able to use
911 Dialing or access emergency service
personnel.
15.9
Alternate 911 Arrangements.
If you are not comfortable with the limitations
of the 911 Dialing service, you should
consider having an alternate means of
accessing traditional 911 or E911 services
or terminating the Service.
16. Charges / Payments / Default / Taxes /
Termination
16.1 Billing
You must give us a valid credit card number
(Visa, MasterCard, Discover, American
Express or any other issuer then-accepted by
My Cyber Phone) when the Service is
activated. My Cyber Phone reserves the right
to stop accepting credit cards from one or
more issuers. If the card expires, you close
your account, your billing address changes,
or the card is cancelled and replaced owing
to loss or theft, you must advise My Cyber
Phone 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 My Cyber Phone
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. My Cyber Phone reserves the right
to bill at more frequent intervals if the
amount due at any time exceeds $5. 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 My Cyber Phone’s website.
16.2 Billing Disputes
You must notify My Cyber Phone in writing
within 7 days after receiving your credit
card statement if you dispute any My Cyber
Phone charges on that statement or such
dispute will be deemed waived. Billing
disputes should be notified to the following
address:
Billing
Dispute Department
My Cyber Phone
17901 NW 5th Street
Suite 103
Pembroke Pines, Florida 33029
or
support@mycyberphone.com
or
1-877-469-2923
16.3 Payment
My Cyber Phone accepts payments only by
credit card. Your initial activation of the
Service authorizes My Cyber Phone to charge
the credit card account number on file with
My Cyber Phone including any changed
information given to My Cyber Phone if the
card expires or is replaced, or if you
substitute a different card, for My Cyber
Phone charges as set forth in Section 16.1.
This authorization will remain valid until
30 days after My Cyber Phone receives your
written notice terminating My Cyber Phone's
authority to charge your credit card,
whereupon My Cyber Phone will charge you the
disconnect fee and any other outstanding
charges and terminate the Service. My Cyber
Phone may terminate your Service at any time
in its sole discretion, if any charge to
your credit card on file with My Cyber Phone
is declined or reversed, your credit card
expires and you have not provided My Cyber
Phone 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 My
Cyber Phone for ALL CHARGES ACCRUED BEFORE
TERMINATION and for all costs incurred by My
Cyber Phone in collecting such amounts, such
as (but not limited to) collection costs and
attorney's fees. 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.
16.4 Termination/Discontinuance of
Service
My Cyber Phone reserves the right to suspend
or discontinue providing the Service
generally, or to terminate your Service, at
any time in its sole discretion. If My Cyber
Phone 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 My
Cyber Phone or of a third party provider to
which My Cyber Phone 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
the disconnect fee set forth in the
following sections, all of which immediately
become due and payable.
16.5 Taxes and Surcharges
You are 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 your
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 credit
card as set forth in this Agreement. If you
are exempt from payment of such taxes, you
shall provide My Cyber Phone with an
original certificate that satisfies
applicable legal requirement attesting to
tax-exempt status. Tax exemption will only
apply from and after the date My Cyber Phone
receives such certificate. In addition to
surcharges, which may be found in the
applicable Calling Plan, My Cyber Phone may
adjust its rates and charges or impose
additional rates and charges in order to
recover amounts it is required or permitted
by governmental or quasi-governmental
authorities to collect from others or pay to
others in support of statutory or regulatory
funds or programs ("Governmental Charges").
16.6 Disconnect Fee
Customer will be charged a disconnect fee of
$39.99 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
$39.99 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 as set forth in
Section 10. My Cyber Phone will not credit
Customer if the Device(s) is damaged or not
in its original condition as received by the
Customer or if Customer has otherwise failed
to comply fully with the requirements of
Section 10. In the event Customer
disconnects multiple lines, My Cyber Phone
will issue Customer a credit for all
disconnect fees upon receipt of all Devices
(including without limitation Adapters) in
accordance with this Section and Section 10.
17. Money Back Guarantee; Limitations and
Conditions
My Cyber Phone offers a 30-day Money Back
Guarantee ("Warranty Period"), applicable
only to User’s first-ordered line per
account, not to additional or secondary
lines. Under terms of this Money Back
Guarantee, My Cyber Phone refunds the
activation fee, first month of service, and
initial shipping charges and waives the
disconnect fee, provided the terms described
below are satisfied. Federal excise taxes
and any other applicable taxes cannot be
refunded. My Cyber Phone 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 number of days in the Warranty
Period after the account activation; (ii)
must return all Devices within 14 days after
cancellation pursuant to Sections 10 and
16.6; and (iii) must not have exceeded 250
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
Section19), payphone calls to My Cyber Phone
toll free numbers and directory assistance.
THIS MONEY BACK GUARANTEE DOES NOT APPLY TO
ACCOUNTS EXCEEDING 250 MINUTES OF USAGE AND
SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF
ANY OF THE CHARGES DESCRIBED HEREIN.
In addition to the requirements set forth in
Section 10, all returned Devices 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 My
Cyber Phone customer care. User is
responsible for the cost and risk of 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
support@mycyberphone.com
or 1-877-469-2923.
18.
Payphone Charges
If you make use of My Cyber Phone’s Toll
Free Plus feature or any toll free feature
that may be offered by My Cyber Phone in the
future, you acknowledge and agree that my
Cyber Phone is entitled to recover from you
any charges imposed on My Cyber Phone by
payphone owners or operators, either
directly or indirectly through My Cyber
Phone’s suppliers in connection with toll
free calls made to your number, or any
charges imposed on My Cyber Phone by its
suppliers to recover such costs. My Cyber
Phone may recover these amounts by means of
a per-call charge, rounded up to the next
cent, or in such other fashion as My Cyber
Phone deems appropriate for the recovery of
these costs.
19. Charges for Directory Calls
My Cyber Phone will charge $0.99(USD) for
each call made to My Cyber Phone directory
assistance.
20. Warranty And Liability Limitations /
Indemnification
20.1. Limitation of
Liability
My Cyber Phone 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;
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 My Cyber
Phone's control, including without
limitation a failure of or defect in any
Device, the failure of an incoming or
outgoing communication, the inability of
communications (including without limitation
911 dialing) to be connected or completed,
or degradation of voice quality.
20.2 My Cyber Phone's
aggregate liability
for (i) any failure or mistake; (ii) any
claim with respect to My Cyber Phone’s
performance or nonperformance hereunder or
(iii) any My Cyber Phone act or omission in
connection with the subject matter hereof
shall in no event exceed Service charges
with respect to the affected time period.
21.
Disclaimer of Damages
In no event shall my cyber phone, 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 direct, incidental, indirect,
special, punitive, exemplary or
consequential damages, or for any other
damages, including but not limited to loss
of data, loss of revenue or profits, or
damages 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,
product liability, tort and any and all
other theories of liability and apply
whether or not My Cyber Phone was informed
of the likelihood of any particular type of
damages.
22.
Indemnification
Customer agrees to defend, indemnify, and
hold harmless My Cyber Phone, 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.
23.
No Warranties on Service
MY CYBER PHONE MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS OF THE SERVICE 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 SERVICE WILL MEET
CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING
THE FOREGOING, MY CYBER PHONE DOES NOT
WARRANT THAT THE SERVICE WILL BE WITHOUT
FAILURE, DELAY, INTERRUPTION, ERROR,
DEGRADATION OF VOICE QUALITY OR LOSS OF
CONTENT, DATA OR INFORMATION. NEITHER MY
CYBER PHONE 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 MY CYBER PHONE'S 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 MY CYBER PHONE'S OR ITS SERVICE
PROVIDER'S OR VENDOR’S NEGLIGENCE.
STATEMENTS AND DESCRIPTIONS CONCERNING THE
SERVICE OR DEVICE, IF ANY, BY MY CYBER PHONE
OR MY CYBER PHONE’S AGENTS OR INSTALLERS ARE
INFORMATIONAL AND ARE NOT GIVEN AS A
WARRANTY OF ANY KIND.
24. No Warranties, or Limited Warranties,
for Devices
If Customer received the Device new from My
Cyber Phone and the Device included a
limited warranty at the time of receipt,
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 My Cyber
Phone at the time of receipt, 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. OTHER THAN WARRANTIES AS TO THE
DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION
PROVIDED WITH THE DEVICE MY CYBER PHONE
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
BUSINESS PLUS CUSTOMERS.
25. 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.
26. 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. My Cyber Phone
reserves the right to terminate or suspend
affected Services, and/or remove your or
User’s content from the Services, if My
Cyber Phone determines that such use or
content doer not conform with the
requirements set forth in this Agreement or
interferes with My Cyber Phone’s ability to
provide Services to you or others or
receives notice from anyone that your or
User’s use or Content may violate any laws
or regulations. My Cyber Phone’s actions or
inaction under this Section shall not
constitute review or approval of your or
User’s use or Content. You will indemnify
and hold harmless My Cyber Phone 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.
27. Dispute
Resolution
This section provides for resolution of
disputes through final and binding
arbitration before a neutral arbitrator
instead of in a court by a judge or jury or
through a class action.
27.1. Binding
Arbitration
The arbitration process established by this
section is governed by the Federal
Arbitration Act ("FAA"). Both you and My
Cyber Phone have the right to take any
dispute that qualifies to small claims court
rather than arbitration. All other disputes
arising out of or related to this Agreement
(whether based in contract, tort, statute,
fraud, misrepresentation or any other legal
or equitable theory) must be resolved by
final and binding arbitration. This includes
any dispute based on any product, service or
advertising having a connection with this
Agreement and any dispute not finally
resolved by a small claims court. The
arbitration will be conducted by one
arbitrator using the procedures described by
this Section. If any portion of this Dispute
Resolution Section is determined to be
unenforceable, then the remainder shall be
given full force and effect. The arbitration
of any dispute involving $10,000 or less
shall be conducted in accordance with the
Consumer Arbitration Rules of the American
Arbitration Association ("AAA"), as modified
by this Agreement, which are in effect on
the date a dispute is submitted to the AAA.
The AAA's Commercial Arbitration Rules and
fee schedules will apply to any disputes in
excess of $10,000.
You
have the right to be represented by counsel
in arbitration. In conducting the
arbitration and making any award, the
arbitrator shall be bound by and strictly
enforce the terms of this Agreement and may
not limit, expand, or otherwise modify its
terms. The arbitrator may not award
punitive, exemplary or similar damages. The
parties agree that an award of such damages
will be void if issued.
No dispute may be joined with another
lawsuit, or in arbitration with a dispute of
any other person, or resolved on a
class-wide basis. 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 My Cyber Phone both
waive any claims for an award of damages
that are excluded under this agreement.
27.2. Arbitration Information and
Filing Procedures
Before you take a dispute to arbitration or
to small claims court, you must first
contact our Customer Care Department
representative at the customer service
number on your My Cyber Phone invoice for
the Services, or write to us at the
following address and give us an opportunity
to resolve the dispute:
My Cyber Phone
17901 NW 5th Street
Suite 103
Pembroke Pines, FL 33029
Attention: Dispute Department
You must describe your dispute and provide
My Cyber Phone with any supporting
documentation. Likewise, if My Cyber Phone
has a dispute with you, it will notify you
by letter sent to your billing address and
attempt to resolve it before pursuing
arbitration.
If the dispute cannot be satisfactorily
resolved within sixty days from the date you
or My Cyber Phone is notified by the other
of a dispute, then either party may then
contact the AAA in writing at AAA Service
Center, 134555 Noel Road, Suite 1750,
Dallas, Texas 75240-6620 and request
arbitration of the dispute. Information
about the arbitration process and the AAA's
Arbitration Rules and its fees are available
from the AAA on the Internet at
www.adr.org. The
arbitration will be based only on the
written submissions of the parties and the
documents submitted to the AAA relating to
the dispute, unless either party requests
that the arbitration be conducted using the
AAA's telephonic, on-line, or in-person
procedures. Additional charges may apply for
these procedures. Any in-person arbitration
will be conducted at a location that the AAA
selects in the state of your primary
residence. Any arbitration shall remain
confidential. Neither you nor My Cyber Phone
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. Judgment of the award
rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION
PROVISION CONSTITUTES A WAIVER OF ANY RIGHT
TO A JURY TRIAL.
27.3 Fees and Expenses of
Arbitration
Each party must pay its own expenses
associated with any arbitration, including
its
attorney's fees. If you file a request for
arbitration, you will have to pay a filing
fee in accordance with the AAA fee schedule.
Under AAA rules, some costs such as the
arbitrator's fees and expenses will be
allocated between the parties.
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.
28. Governing
Law
The Agreement and the relationship between
you and My Cyber Phone shall be governed by
the laws of the State of Florida, USA,
without regard to its conflict of law
provisions. To the extent court action is
initiated to enforce an arbitration award or
for any other reason consistent with Section
27, you and My Cyber Phone agree to submit
to the personal and exclusive jurisdiction
of the courts located within the State of
Florida and waive any objection as to venue
or inconvenient forum. The failure of My
Cyber Phone 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.
29. Entire
Agreement
This Agreement and the rates for Services
found on My Cyber Phone’s website constitute
the entire agreement between you and My
Cyber Phone and govern your use of the
Service, superseding any prior agreements
between you and My Cyber Phone 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 My Cyber Phone unless and
until posted in accordance with Section 1
hereof.
30. 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.
31. Privacy
Provider will keep confidential, except
where required by law, all information
provided by Customer including email
addresses. My Cyber Phone Service utilizes,
in whole or in part, the public Internet and
third party networks to transmit voice and
other communications. My Cyber Phone is not
liable for any lack of privacy, which may be
experienced with regard to the Service.
Updated
February 26, 2007 |
