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Standard Terms and Conditions

Maintenance Contract Terms and Conditions

Voice over IP Terms of Service

 

Tele-Dynamics Voice & Data (TDNYC.com) – Standard Terms and Conditions

 

1. Coverage: Tele-Dynamics and Customer agree that these terms and conditions govern the Products and Services described on the Product Purchase Agreement, including all attachments accepted by TDNYC (Tele-Dynamics).

 

2. Orders: (a) This agreement will become effective when signed by the customer and contract is accepted by TDNYC. (b) TDNYC acceptance of this agreement is subject to credit approval and to the remittance of an advance payment, progress payments, or other form of security, which are specified by TDNYC in the Product Purchase Agreement. (c) Customer Installed Products:  If customer is unable or unwilling to accept product delivery on the mutually agreed upon date by more than 30 days, product prices and/or service charges may change. An additional deposit may be required to “hold” equipment until customer is ready to install. (d) Customer agrees, at their sole expense to provide the proper environment and electrical and communications connections for the products. Customer agrees to provide clear access to that area which is free of hazardous conditions.

 

3. Wiring: All wiring installed by Tele-Dynamics will be covered for a period of one year from installation unless otherwise specified.  Included in this agreement is all cable, wire, connecting blocks, cross connect fields, premise distribution equipment and associated hardware on the customer’s side of the local exchange companies or common carriers network interface.

 

4. Software: Any software provided by the manufacturer remains the property of the manufacturer and is protected by copyright law. It may not be modified, translated, transferred ownership, or should any attempt to discover source code in any way.

 

5. Terms of Payment- Customer agrees to payment terms documented on Product Purchase Agreement. Payments are due as per terms agreed upon from date of invoice. Where applicable, recurring monthly payments will be billed in advance on a monthly basis. Late payment charges will be computed at the rate of one and one-half percent (1.5%) per month of the overdue amount or the maximum lawful amount, whichever is less. Customer will be liable for all costs to collect any past due amounts, including collection agency or attorney fees.

 

6. Cancellation:  If you cancel the whole or a portion of the order after an agreement is signed and prior to delivery and/or installation, customer is subject to a fee equal to 15% – 25% of the purchase price plus any applicable shipping charges. Orders cannot be returned once they have been delivered and installed. If any Right-to-use (RTU) / Licensing has been activated, the customer will be held responsible for complete charges as set forth in purchase agreement.

 

7. Taxes:  Customer agrees to pay all applicable local, state and federal taxes, however designated unless customer provides Tele-Dynamics with a valid certificate of exemption.

 

8. Local Exchange Company/ Common Carrier: Where agreed upon, Tele-Dynamics will act on customer’s behalf in coordinating circuits with customer’s carrier/ provider. Tele-Dynamics will not be held responsible/liable for any of the following issues resulting from customer carrier/ provider: 1) delays in delivery, 2) non-functioning circuits/ trunks, 3) improperly provisioned circuits/ trunks, or 4) any orders that have not been installed correctly.  Additional tech labor charges may be incurred if further involvement is required of Tele-Dynamics, whether responding on site or remotely.

 

9. First Year Warranty: Tele-Dynamics, it’s authorized agents or the manufacturer’s representative shall respond to system failures, either on site or remotely, as necessary, within twenty-four (24) hours of notification Monday through Friday (excluding Holidays) for minor service requests and within four (4) hours of notification, twenty-four (24) hours a day, seven (7) days a week for emergency service calls.

 

1. “Minor” service requests will be defined as failure due to normal use.

 

1. “Emergency” service requests will be defined as a system failure resulting in the customer’s inability to (1) receive all incoming calls, (2) make all outgoing calls, (3) make all station-to-station calls, or (4) use the attendant consoles. All other outages will be classified as “Minor”.

 

1. “Respond” means to begin to take action to resolve to problem including but not limited to oral discussion of the problem with the customer.

 

The above statements refer to new equipment only, and are governed by the manufacturer’s warranty period, not to exceed one (1) year.

 

10. Warranty Exclusions: Warranties do not provide reimbursement for power surges, preventive maintenance, software failure, correction or programming, moving or adding equipment, installation of equipment, or damage due to moving, adding, installing or repairing equipment, pest infestation, unattended property in an unattended vehicle, nuclear war, war or government seizure, water transport, theft, scratching or marring. Warranties will not extend to exposure of the equipment to environmental conditions, including temperature extremes or exposure to weather or other conditions for which the equipment was not designed, as specified by the manufacturer. The equipment must be installed and maintained in the environment according to the manufacturer’s equipment room specifications. Warranties will not extend to old wiring or cabling, batteries for power supplies or backup systems, or expendable items such as bulbs, batteries, fuses, and surge protectors. Warranties will not extend to software materials, removable media, or programs, data or other material contained on the removable media, including records, removable disks, tapes, films, or cassettes, nor labor for programming, reprogramming, or backup.

 

11. Warranty Termination: This warranty will be subject to termination if (1) anyone other than Tele-Dynamics, its authorized agents, or the manufacturer performs service, maintenance or additions to the system covered by this agreement prior written approval from Tele-Dynamics or (2) the customer fails to make payments in accordance with the terms of this agreement.

 

12. Force Majeure: If Tele-Dynamics’ performance shall be adjusted or suspended by the customer or the extent performance is beyond Tele-Dynamics control for reasons including without limitation, strike, work stoppages, fire, water, flood, lightening, government action, acts of God or public enemy, delays of suppliers, subcontractors, power company, local exchange company, or other carrier. Any such delay or suspension of performance shall not constitute a default hereunder or give use to claims for damages against Tele-Dynamics and its performance until the delay or suspension of performance has ended.

 

13. Miscellaneous: (a) If Customer issues a purchase order for its own internal purposes, Customer agrees that the terms and conditions of this Agreement apply, and agrees to refer to this Agreement as the governing document on the face of such purchase order. Conflicting terms on a Customer’s purchase order or similar order used to order a system or portions thereof, are null and void; (b) TDNYC assumes responsibility for installation and services provided and reserves the right to subcontract any and all of the work to be performed by it under this Agreement but shall retain the responsibility for the work performed.

 

14. Assignment: Tele-Dynamics may assign this Agreement and any of its rights and obligations hereunder at any time. This Agreement is not assignable by the Customer, except to subsidiaries or affiliates, without prior consent of Tele-Dynamics. Any attempt to assign any of the rights, duties or obligations under this Agreement without such consent of Tele-Dynamics will, at Tele-Dynamics sole option and discretion be deemed void, a material default, or accepted; (a) the waiver by either party of any default will not operate as a waiver of any subsequent default; (b) If any court hold ant portion of this Agreement unenforceable, the remaining language shall not be effected; (c) Any modification must be in writing and executed by an authorized  representative of each party, whom enforcement is sought; (g) This Agreement should be governed by the laws of the State of New York and shall have exclusive jurisdiction over any disputes.

 

15. Exclusive Remedy: Customer’s exclusive remedy for breach of the foregoing warranties and provisions within this contract, and Tele-Dynamics sole liability in the event of such breach, shall be the repair or replacement, at Tele-Dynamics option and in accordance with the terms and conditions of Tele-Dynamics warranty service policies and procedures.

 

16. Limitation of Liability:  Tele-Dynamics and its suppliers’ aggregate liability arising out of or in connection with this “Agreement” and any “Products” and/or services, purchased hereunder shall not exceed the amounts paid by customer” for these products and/or services, giving rise to such liability. In no event shall Tele-Dynamics  or its suppliers be liable for punitive, incidental, consequential or other special damages (including, without limitation, loss of good will, business profits, work stoppage or data loss) arising out of or relating to products and / or “Professional Services” purchased or used whether under breach of warranty, breach of contract, negligence, tort or any other legal theory, and whether or not Tele-Dynamics or its suppliers have been advised of the likelihood of such damages.

 

17. Entire Agreement: This Agreement contains the entire agreement of the parties and is intended to replace and supersede all prior negotiations, understandings and agreements between the parties. No modification of the terms and conditions of this Agreement will be valid or binding on the parties unless made in writing after the date hereof and signed by an authorized representative of each of the parties.

 

18. General: (a) Any supplement, modification or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties. (b) If either party fails to enforce any right or remedy available under this Agreement, that failure shall not be construed as a waiver of any right or remedy with respect to any other breach or failure by the other party. (c) You certify that the Services acquired hereunder are intended for your use in the ordinary course of your business and not for the purposes of resale.

 

Tele-Dynamics Voice & Data (TDNYC.com) – Maintenance Contract Terms and Conditions

 

1. Equipment Covered: The equipment for which maintenance is offered under this Agreement is the equipment and cabling for the Tele-Dynamics system, actually installed by Tele-Dynamics personnel. listed above or on the Riders hereto, if any (the ”Equipment”)

 

2. Maintainor Support:

 

2.1 Services Provided:  Maintainor agrees, for the term of this Agreement, to provide maintenance services on inoperable or malfunctioning Equipment which is necessary to return the Equipment to a satisfactory operating condition. Maintainor shall repair the equipment in Customer’s facility If Maintainor in its sole opinion deems it appropriate Maintainor may ship components to customer to facilitate the repair. Customer agrees to assist Maintainor by giving Maintainor access to a technically competent person without charge to test the equipment and installing necessary parts. In the event Maintainor does not believe Maintainor can reasonably repair the System on site, Customer agrees to ship the specific equipment to the TELE-DYNAMICS designated repair facility. Customer and Maintainor shall share all shipping charges. All such maintenance shall be performed during the hours of 8:00 A.M. to 6:00 P.M. Monday through Friday; excluding Maintainor holidays (the ”Principal Period of Maintenance”) After hours service is available at an additional fee. In the event the hardware must be returned to Maintainor’s place of business or requires that a Component be shipped to Customer, or third party repair facility, Tele-Dynamics shall provide a temporary working system to the Customer for a period of time equal to the time required to repair and reinstall the Customers original system. Customer acknowledges that the TELE-DYNAMICS System may be partially or totally inoperable for the reasonable period of time to facilitate the repair.

 

Maintainor will at no additional charge provide new or equivalent used replacement parts for the Equipment on an exchange basis required as a result of normal use. Parts removed become the property of Maintainor, Service or parts required for the Equipment as a result of other than normal use (e.g., accident, fire lightning, water damage, negligence, misuse or repairs, alterations or modifications performed by persons not authorized by Maintainor) are not Included hereunder and shall be subject to Maintainor’s personnel availability and charged at Maintainor’s prevailing rates on the date such service or repairs are performed. Service requested by Customer to be performed at times other then during the “Principal Period of Maintenance” shall be subject to Maintainor’s personnel availability and charged to Customer at Maintainor’s overtime rate on the date such service is performed. Maintainor will also provide assistance by telephone to answer urgent and immediate questions during the “Principal Period of Maintenance”. When, in Maintainor’s opinion a factory refurbishment is necessary because normal repair and parts replacement cannot keep a unit of Equipment in satisfactory operating condition,  Maintainor will submit a cost estimate of needed repairs which will be in addition to the charges hereunder. If Customer does not authorize such work Maintainor may cancel or refuse to renew this Agreement for the unit of Equipment All services to be performed hereunder may be performed by Maintainor or by third parties designated by Maintainor.

 

2.2 Service Response Time: Maintainor will respond to service requests as follows : (a) Any service request that is not an emergency request (Emergency status would require the loss of ability to either send or receive phone calls on all available lines) , Maintainor will use best efforts to respond within 16 business hours. Any service request that is deemed emergency status, Maintainor will use best efforts to respond within two business hours. Maintainor upon determining the repair method Maintainor believes is appropriate, will arrange to ship replacement parts, plan a site visit, or request Customer to ship the component to Maintainor’s repair facility, or plan a vendor meet with all necessary parties.

 

2.3 Force Majeure: Maintainor shall not be liable to Customer for any delay or failure by Maintainor to perform its obligations under this Agreement If such delay or failure arises from any cause or causes beyond the reasonable control of Maintainor. This includes but is not limited to the general availability of parts required to repair the equipment covered by this agreement.

 

2.4 Excluded Services: The maintenance service to be provided by Maintainor under this Agreement shall not include the following:

 

(a) Performing services in connection with the use of the Equipment in conjunction with other equipment (non TELE-DYNAMICS Installed networks or peripherals) or software.

 

(b) Relocation of the Equipment the rewiring or rerouting of cables, or the addition or removal of accessories, attachments, features, or other devices;

 

(c) Electrical work external to the equipment;

 

(d) Maintenance of accessories attachments, features, or devices other than the equipment

 

(e) Maintenance of Equipment from which the original Identification marks have been removed or altered

 

(f) Repair of damages resulting from (i) accident, transportation, neglect, or misuse by Customer. Customer’s failure to provide the necessary facilities or specified operating supplies, or failure by Customer to meet site specifications applicable to the Equipment (ii) causes external to the Equipment such as, but not limited to, unusual physical stress, failure or fluctuation of electrical power, air conditioning or humidity control; or (iii) any cause other than ordinary use (e.g., accident, fire, lightning, water damage, negligence, misuse or repairs alterations or modifications performed by persons not authorized by Maintainor);

 

(g) Furnishing expendable or consumable supplies, equipment or accessories or refinishing the equipment.

 

(h) Maintenance of the Equipment or portions thereof which Customer has modified or repaired as set forth in Section 3 hereof or portions of the Equipment affected by such Customer modifications or repairs;

 

(i.) Tele-Dynamics can not be held responsible for ANY carrier issues that may arise.  Tele-Dynamics is not responsible for any phone outages due to carrier error, including any scheduling or facility issues.

 

(j) Reconditioning required when repair and parts replacement cannot keep the Equipment in operating condition;

 

(k) Beck-up or restoration of Customer data, information or computer programs whether Or not used in conjunction with the Equipment;

 

(l) Except with respect to computer software covered by the TELE-DYNAMICS Maintenance Agreement, any computer software Customer adds to the Equipment shall not be the responsibility of Maintainor and;

 

(m) Specific requests by Customer for maintenance outside the scope of this Agreement.

 

(n) Service and maintenance support to be provided under this agreement does not include repairs, replacement parts and labor caused by, arising  from, related to, or made necessary by operating system or application software, firmware or other programmed code internal or external to the covered equipment.

 

(o) Headsets, Battery Units, Polycom equipment are not covered by this maintenance agreement. Special arrangements can be made to cover this equipment.

 

(p) Shipping and Handling charges are not covered by this agreement. Charges will be as minimal as possible.

 

3. Customer Modifications and Repairs

 

3.1 Customer Modifications: Customer shall inform Maintainor in writing of any modifications to be made by customer or any third party to the Equipment. Maintainor shall not be responsible for maintaining Customer or third party modified portions of the Equipment or portions of the Equipment affected by such modified portions.

 

3.2 Customer Repairs: Maintenance or repairs requested due to Customers unauthorized repairs or maintenance shall be Subject to Maintainors personnel availability and billed at Maintainor’s standard time and materials charges In addition all warranties express, implied or statutory are deemed revoked by Maintainor and waived by Customer until such repair or maintenance has been performed by Maintainor and the Equipment has been certified by Maintainor for performance.

 

4. Customer Support: Customer agrees to use the Equipment in accordance with the operating manuals for the Equipment Customer agrees to provide Maintainor with access to its facilities during normal business hours, unless otherwise agreed upon by Customer, and the necessary equipment and documentation for Maintainor to perform maintenance via computer modems, and in person If necessary, and with sufficient support and test time so that Maintainor is able to duplicate any problem reported, to certify that the problem is with the Equipment, to correct the problem and to certify to Customer that the problem has been corrected. Customer shall be solely responsible for its data, information and programs stored on the Equipment including the making of timely and accurate back- up copies, as well as taking the necessary precautions to prevent against virus infection or other software or hardware corruption devices.

 

5. Term: This Agreement shall commence on the Effective Date and shall continue for the term stated (the First “Term”). Thereafter, this Agreement shall be automatically renewed upon expiration without any further notice. Unless this Agreement is terminated In accordance with the provisions of Section 11, Maintenance service under this Agreement shall continue (i) only so long as Customer maintains the current installed version of the Equipment or (ii) until terminated by either party in accordance with the terms of this Agreement.

 

6. Price and Payment

 

6.1 Maintenance Fee: Customer shall pay to Maintainor the maintenance fee for the Equipment as designated on the Riders hereto and the fee for such other services as Indicated on the face hereof or on the Rider hereto. The maintenance fee shall be payable annually in advance. After the First Term Maintainor may change the maintenance fee from time to time in accordance with Its standard maintenance charges provided that Maintainor shall have given Customer thirty (30) days written notice prior to the annual term for which such revised maintenance fee shall apply

 

6.2 Additional Charges: With respect to (i) maintenance of the Equipment which Maintainor provides in response to a request by Customer for maintenance and which Maintainor is not obligated to provide under this Agreement, or (ii) corrections for difficulties or defects traceable to Customer’s unauthorized acts, errors or system changes Customer shall pay Maintainor for all efforts toward such services corrections or remedies at Maintainor’s then current standard time and materials charges. With respect to any repairs which are excluded from this Agreement and which are required for the Equipment to be in proper working order, Maintainor will submit a description of the work, which is necessary to restore the Equipment to proper working order and the charges therefore, and will request permission to restore the Equipment to proper working order. If Maintainor is not granted the permission to perform such restoration at Customer’s expense, Maintainor shall have the right to terminate its entire obligation under this Agreement with respect to such damaged Equipment.

 

6.3 Invoices: All invoices including but not limited to invoices for maintenance fees, time and materials charges, and expenses are due fifteen (15) calendar days after receipt of invoice. Maintenance Agreements will not be effective until payment is received. Maintenance Agreements will not be retroactive to invoice date. Any failure that occurs prior to receipt of payment is specifically excluded. If Customer fails to pay any amount due within fifteen (15) days from the receipt of the invoice late charges of 1 1/2 % or the maximum Interest rate allowed by law, per month shall also become payable by Customer to Maintainor. In addition, Customer’s failure to fully pay any invoiced amount within forty-five (45) days after the receipt of any renewal invoice shall be deemed a material breach of this Agreement and shall be sufficient cause for immediate termination hereof. If Customer fails to pay, when due, any amount payable hereunder or fails to fully perform its obligations hereunder, Customer agrees to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by Maintainor in enforcing this Agreement including but not limited to all expenses of any legal proceeding related thereto and all reasonable attorneys’ fees incurred in connection therewith No failure by Maintainor to request any such payment or to demand any such performance or performance of any Customer obligation hereunder shall be deemed a waiver by Maintainor of Customer’s obligations hereunder or a waiver of Maintainor’s right to terminate this Agreement

 

6.4 Taxes:

Customer shall in addition to the payments required hereunder, pay, or reimburse Maintainor for all sales, use, transfer or other taxes, and all duties whether national state or local, however designated which are levied or imposed by reason of the transaction contemplated hereby; excluding however, taxes on net income which may be levied against Maintainor. Maintainor may add such taxes to the invoices submitted to Customer hereunder.

 

7. Travel Expenses: The maintenance fee payable hereunder excludes all travel and related charges with the exception of lodging, if required with respect to maintenance services provided for the annual maintenance fee hereunder during the Principal Period of Maintenance, Maintainor will utilize local subcontractors if Maintainor believes it will facilitates the repair. All travel expenses for all services billed in addition to the annual maintenance fee shall he charged to Customer as incurred.

 

8. Warranty: MAINTAINOR’S SOLE OBLIGATION UNDER THIS AGREEMENT WILL BE TO PROVIDE MAINTENANCE AS DESCRIBED IN SECTION 2 ABOVE. ALL MAINTENANCE SERVICES ARE PROVIDED ”AS IS”. MAINTAINOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

9. Limitation of Liability: Maintainor shall have no liability or obligation under this Agreement with respect to Customer data, information or computer programs, whether or not stored on the Equipment. MAINTAINOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS OR THE OBLIGATIONS OF ITS AGENTS OR DESIGNEES UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES EVEN IF MAINTAINOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Maintainor’s liability for any reason and upon any cause of action whatsoever exceed the lesser of (i) fifty percent (50%) of the then current annual maintenance fee paid hereunder or (ii) that portion of the amounts paid hereunder which is attributable to the particular unit of equipment directly involved in the liability claim.

 

10.Termination

 

10.1 Continuous Maintenance: This Agreement is renewable in accordance with the terms of Section 5, ”Term”, and shall remain in effect only so long as Customer continuously contracts for or receives maintenance from Maintainor for all of the Equipment covered by this Agreement from the time of acceptance of such Equipment. If Customer discontinues such maintenance under this Agreement as to any portion of such Equipment Maintainor may immediately terminate this entire Agreement.

 

10.2 Termination: In addition to Its rights as set forth elsewhere In this Agreement, Maintainor and Customer shall have the right to terminate this Agreement upon five (5) days written notice to Customer upon: (a) the violation or breach by the other party, its officers or employees of any provision of this Agreement including but not limited to, (a) payment (b) the termination of the business of Customer; (c) the voluntary or involuntary filing of a bankruptcy petition or similar proceeding under state law with respect to Customer; (d) Customer’s becoming insolvent or making any assignment for the benefit of creditors or (e) Maintainors failure to provide repairs in accordance with section 2.

 

10.3 Notice: After the first twelve (12) months of maintenance service under this Agreement, this Agreement may be terminated by either party upon a minimum of thirty (30) days written notice prior to the expiration of any annual term. No refund will be due if Customer cancels maintenance or if Maintainor terminates this Agreement pursuant to Section 11.2 above.

 

11. General

 

11.1 Entire Agreement: This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties with respect to the subject matter hereof and supersedes and merges any prior understanding or agreements oral or written.

 

11.2 Assignment: Tele-Dynamics may assign this Agreement and any of its rights and obligations hereunder at any time. This Agreement shall be binding upon the parties and their respective successor and assignees. Customer may not assign this Agreement or any of its rights duties or obligation hereunder, in whole or in part, to any person or entity without the prior written consent of Maintainor.

 

11.3 No Waiver: The waiver or failure of either party to exercise any right In any respect provided for herein shall not be deemed a waiver of any other or further right hereunder.

 

11.4 Severability: If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.

 

11.5 Modifications: The agreement may not be modified or altered except by written instrument duly executed by both parties and except that Maintainor may change the terms and conditions of this Agreement upon written notice to Customer sixty (60) days prior to the first day of any renewal period

 

11.6 Governing Law: This Agreement and performance hereunder shall be governed by the laws of the State of New York, and Customer hereby consents to the exclusive jurisdiction of the courts of the State of New York or the Federal courts sitting in Manhattan County and waives any objection to such venue.

 

11.7 Limitation of Action No action regardless of form arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has arisen

 

11.8 Notice Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand, upon receipt thereof, (ii) If mailed, three (3) days after deposit in the US mails postage prepaid, certified mail, return receipt requested. All notices shall be addressed to the parties at their respective addresses indicated herein and on the face hereof.

 

11.9 Remedies The rights and remedies of Maintainor set forth in this Agreement are not exclusive and are In addition to any other rights and remedies Available to it in law or in equity.

 

The parties hereto have executed this Agreement including the terms And conditions attached hereto, as of the effective date set forth above.

 

 

Tele-Dynamics Voice & Data (TDNYC.com) – Voice over IP Terms of Service

 

These Terms of Service constitute the agreement (“Agreement”) between  Tele-Dynamics (“we,” or “us”) and the user (“you,” “user” or “Customer”) of Tele-Dynamics’s business services and any related products or services (“Service”).

 

This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter, switch, router or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service. If you purchased Equipment from a dealer, retail store or other provider other than Tele-Dynamics, you are a “Retail Customer” for purposes of this Agreement.

 

BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

1. EMERGENCY SERVICES – 911 DIALING

 

1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing” which is a limited emergency calling service available only on Tele-Dynamics certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each Tele-Dynamics phone number that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described on our website page for 911 Dialing under “Features,” and below. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Tele-Dynamics 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase should include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (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 212-413-8100.

 

1.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with Tele-Dynamics 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 Tele-Dynamics 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.

 

1.3 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.

 

1.4 How Emergency Personnel are Contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.

 

1.5 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 Suspension or Termination of Your Tele-Dynamics Account. Service outages due to suspension or 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 Tele-Dynamics 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 that 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. 1.6 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.

 

1.7 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.

 

1.8 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.

 

1.9 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.

 

1.10 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 Tele-Dynamics 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 Tele-Dynamics, 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, attorney’s 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.

 

1.11 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.

 

2. SERVICE

 

2.1 Term. Service is offered on a monthly or multi-month basis as is determined in your Service activation or order form, or via our online ordering process. The term begins on the date that Tele-Dynamics activates your Service and ends on the day before the anniversary date of your Term. Subsequent terms of this Agreement automatically renew for the length of the original term unless written notice is provided, via certified means, of non-renewal at least thirty (30) 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 termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month’s charges in the event that you do not provide the requisite thirty days’ notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.

 

2.3 Use of Service and Tele-Dynamics provided Device. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of the aforementioned or similar activities.

 

2.4 Use of Service only. For Service only customers, you are responsible for supplying, operating and supporting the Customer Premise Equipment for use with the Service. In addition, any customer supplied equipment must be pre-approved by Tele-Dynamics in writing. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.

 

2.5 Prohibited Uses.

 

(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Tele-Dynamics will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.

 

(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service.

 

If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Tele-Dynamics will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others

 

2.6

Use of Service and Device by Customers Outside the United States. Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to terminate your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device outside of the United States or Canada.

 

2.7 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.

 

(a) Copyright; Trademark. 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 our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.

 

(b) Unauthorized Usage of Device; Firmware or Software. You have not been granted 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 we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

 

2.8 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.

 

2.9 Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized 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 we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.

 

2.10 Return of Device (Does Not Apply to Customers who use Devices not provided by Tele-Dynamics directly)

 

(a) Retail Customers. A Retail Customer may only return the Device to the retail store, dealer or other provider from which the Retail Customer purchased the Device. All returns will be subject to the return policy of such retail store, dealer or other provider. We will not accept any Device returned to us from a Retail Customer.

 

(b) Non-Retail Customers. Non-Retail Customers may return the Device to us within fourteen (14) days of the termination of Service to receive a credit for any termination fee (See Section 3.6) provided that:

The Service is terminated within the first thirty (30) days following the activation of the Service; the Device is in original condition, reasonable wear and tear excluded; the original proof of purchase are returned with the Device, together with the original packaging, all parts, accessories, and documentation; prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at TD@TDNYC.com or 212-413-8100; and you pay all costs of shipping the Device back to us.

 

If you disconnect multiple lines, we will issue you a credit for all termination fees upon receipt of all Devices in accordance with the requirements set forth above.

 

If you receive cartons 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 our customer care department immediately at TD@TDNYC.com  or 212-413-8100.

 

2.11 Number Transfer on Service Termination. Upon the termination of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:

 

Such new service provider is able to accept such number; your account has been properly terminated; your account is completely current, including payment for all charges and applicable termination fees; and you request the transfer upon terminating your account.

 

2.12 Service Distinctions. The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

 

2.13 Ownership and Risk of Loss. You will own 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 to us in accordance with this Agreement.

 

2.14 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

 

2.15 No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.

 

2.16 Incompatibility With Other Services.

 

(a) Security Systems. The Service may not be compatible with security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.

 

(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services. You further acknowledge that some providers of broadband service may provide modems that

prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

 

3. CHARGES; PAYMENTS; TAXES; TERMINATION

 

3.1 Billing. When the service is activated, you must provide us with a valid email address and a credit or debit card number from a card issuer that we accept. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is canceled and replaced on account of loss or theft, you must advise us 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 we decide to bill in arrears) to your credit or debit card, including but not limited to:

 

activation fees; monthly Service fees; international usage charges; advanced feature charges; equipment purchases; termination fees; and shipping and handling charges.

 

The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $250. 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 our website.

 

3.2 Billing Disputes. You must notify us in writing within seven (7) days after receiving your credit or debit card statement if you dispute any Tele-Dynamics charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:

 

Customer Care Billing Department

Tele-Dynamics

30 Wood Avenue

Secaucus, NJ 07094

 

-or-

 

TD@TDNYC.com

 

3.3 Payment and Collection.

 

(a) Payment. We only accept payment by credit or debit card, unless other payment terms have been explicitly agreed to in writing by Tele-Dynamics Your subscription to the Service authorizes us to charge your credit or debit card. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card, whereupon we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate you Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.

 

(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.

 

3.4 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus the termination fee, if applicable, all of which will immediately become due and payable. The term of this Agreement will run from the Effective Date until the end of the term (of any continuation thereof) of each Service.  The initial minimum term of for each Service is set forth in the Service Activation Order (each an “Initial Term”).  The start date for the Initial Term of each Service will begin on the Billing Start Date. Customer must terminate a Service or the Agreement in writing by providing Tele-Dynamics with at least thirty days prior written notice.  Please send termination notices to TD@TDNYC.com or fax to 212-413-8111, Attn: Service Terminations.

 

3.5 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or 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 must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.

 

3.6  Termination Fee. If Customer elects to terminate this Agreement or any Service prior to the expiration of a Service’s Initial Term, Customer must provide thirty days advance notice and must pay the Early Termination Fees for each

Service that has not completed its Initial Term.  The Early Termination Fees should not exceed the fees that would have been owed through the end of such Service’s Initial Term of any agreed upon renewal of the Initial Term.  Customer and Tele-Dynamics agree that an Early Termination Fee is not a penalty but serves as an accurate approximation of the damages to Tele-Dynamics that result from the termination before the end of its Initial Term.  Upon termination or

expiration of this Agreement for any reason, Customer shall promptly pay all amounts owed through the month of termination as well as any applicable Early Termination Fees.

 

3.7 Customer will remain responsible for any charges for usage fees including but not limited to local or international usage, calls to Tele-Dynamics toll free numbers and directory assistance.

 

3.8 Payphone Charges. If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll

free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.

 

3.9 Charges for Directory Calls (411). We will charge you $1.50 for each call made to Tele-Dynamics directory assistance.

 

3.10 Charges for Conference Bridge Calls. We will charge you 3.9 cents per minute, or your then current domestic per minute rate if lower than 3.9 cents per minute, for each caller who calls into your conference bride. The per minute usage fee will be calculated based on all participants on the conference bridge, including on-network and off-network participants.

 

4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES

 

4.1 Limitation of Liability. We will 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:

 

an act or omission of an underlying carrier, service provider, vendor or other third party; equipment, network or facility failure; equipment, network or facility upgrade or modification; force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; equipment, network or facility shortage; equipment or facility relocation; service, equipment, network or facility failure caused by the loss of power to you; outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party; any act or omission by you or any person using the Service or Device provided to you;

 

or

 

any other cause that is beyond our 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 forwarded.

 

Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.

 

4.2

Disclaimer of Liability for Damages. IN NO EVENT WILL Tele-Dynamics, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION 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 PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, 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 ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. 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 WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

 

4.3 Indemnification and Survival.

 

(a) Indemnification. You shall defend, indemnify, and hold harmless Tele-Dynamics, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.

 

(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.

 

4.4 No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR 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 SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE

WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER Tele-Dynamics NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR 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 Tele-Dynamics’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY Tele-Dynamics OR Tele-Dynamics’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY

KIND.

 

4.5 Device Warranties

 

(a) Limited Warranty. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you 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.

 

(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.

 

(c) Retail Customer Limited Warranty. For Retail Customers only, we 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 does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. A 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 2.10. 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. The Retail Customer limited warranty will 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.

 

(d) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR

IMPLIED, AND SPECIFICALLY DISCLAIM 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.

 

4.6 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.

 

4.7 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.

 

5. MISCELLANEOUS

 

5.1 Governing Law. The Agreement and the relationship between you and us is governed by the laws of the State of New Jersey 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 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the state of New Jersey and waive any objection as to venue or inconvenient forum.

 

5.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a  single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Hudson County, New Jersey. The arbitrator’s decision will follow the

plain meaning of the relevant documents and will 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. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, HUDSON COUNTY, NEW JERSEY.

 

5.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

 

5.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and Tele-Dynamics and govern the use of the Service by you, members of your business, employees and guests. This Agreement supersedes any prior agreements between you and Tele-Dynamics and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.

 

5.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

 

6. REASONABLE USE LIMITATIONS

 

Unusually high usage of the Service attributable to individual Accounts may impair Tele-Dynamics’s ability to provide the Services and/or indicate misuse of the Services. Accordingly, for all Service Plans, reasonable use means that your use of the Service does not materially impair Tele-Dynamics’s ability to provide the Service to other users.

 

7. UNLIMITED OR UNMETERED PLANS

 

All unlimited or unmetered plans (“Unlimited Plans”) are subject to all of the Prohibited Use and Reasonable Use limitations set forth in this Reasonable Use Policy. In addition, all unlimited or unmetered plans are subject to the following terms and conditions:

 

Unlimited Plans are for normal residential or business use.

 

Unlimited Plans cannot, under any circumstances, be used for call-in lines, call centers, autodialing, fax blasting, telemarketing (including without limitation charitable or political solicitation and/or polling), junk faxing, fax spamming, or other high volume or multi-person calling or faxing purposes.

 

Excessive Use of Unlimited Plans is prohibited. “Excessive Use” means that your use exceeds the monthly minutes per line used by 95% of all Tele-Dynamics Unlimited Plan customers. Excessive Use is measured on a monthly basis. For example, if you use 7,500 minutes in one month per line and 95% of all Tele-Dynamics Unlimited Plan customers used less than 7,500 minutes that month per line, your use would constitute Excessive use and would be in violation of this Reasonable Use Policy.

 

Tele-Dynamics reserves the right to review and monitor your usage of your Unlimited Plan at any time (i) to calculate Excessive Use and (ii) compliance with this Reasonable Use Policy, including that there is no Excessive Use.

 

Except where prohibited by law, if you violate this Reasonable Use Policy, including but not limited to by Excessive Use of the Service, you hereby acknowledge and agree that Tele-Dynamics may modify, suspend, terminate, disconnect or take any other reasonable action regarding your Service to prevent continued violation of this Reasonable Use Policy (a “Plan Modification”), including charging you on per minute basis, at Tele-Dynamics’s published per minute rates, for any Excess Use or automatically converting your Unlimited Plan to a metered plan. You hereby agree to pay Tele-Dynamics, and hereby authorize Tele-Dynamics to charge your credit card for any additional fees, charges and penalties related to any Plan Modification.

 

8. FUTURE CHANGES TO THIS AGREEMENT

 

We 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 www.TDNYC.com.  Tele-Dynamics will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when 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.

 

9. PRIVACY

 

Tele-Dynamics Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Tele-Dynamics is not liable for any lack of privacy which may be experienced with regard to the

Service. Please refer to our website at www.TDNYC.com for additional Privacy Policy information.