This agreement ("Agreement") is between Mils Research Inc., dba SpacePhone, its subsidiaries, affiliates, vendors,
service providers and assigns ("we," "us" or "SpacePhone") and the user ("you," "user" or "End User")
of SpacePhone's broadband phone service ("Service"). This Agreement governs both the Service, the account center
and any related devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or
any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service.
By accessing the account center web site and/or activating the Service, you acknowledge that you have read and
understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of
legal age to enter this Agreement and become bound by its terms.
1. TERMS AND CONDITIONS.
1.1 Term. The Service is offered on a monthly basis for a term which begins on the date that we activate
your Service and ends on the day before the same date in the following month.
Subsequent terms of this Agreement automatically renew on a monthly basis without further action by
you unless you give us written notice of non-renewal prior to the end of the monthly term in
which the notice is given. If you are using an unlimited plan, you are pre-purchasing the Service for
full monthly terms, meaning that if you terminate Service prior to the end of a monthly term,
you will not be entitled to any pro rata refund of any remaining portion of your current monthly term.
Expiration of the term or termination of the Service will not excuse the End User from paying any unpaid,
accrued charges that are due in relation to the Agreement.
1.2 Use of the Services. The Service and Device are to be used for your personal residential use or limited small
business use. You acknowledge that the Service will not be used for any excessive business use including,
but not limited to, auto-dialing, continuous or extensive call forwarding, continuous connectivity,
fax broadcasting, fax blasting, telemarketing (including without limitation charitable or political
solicitation or polling), automatic dialing, call centers, public calling centers or internet cafes or any
other activity that would be inconsistent with normal residential or small business usage patterns.
If you subscribe to an unlimited calling plan, any use in excess of 5,000 minutes per month shall be
presumed to be not consistent with the uses permitted herein. You may not resell or transfer the Service
or the Device to any other person for any purpose, or make any charge for the use of the Service.
We reserve the right to immediately terminate or modify the Service, if we determine, in our sole discretion,
that the Service is being used contrary to the provisions of this Agreement.
1.3 Lawful Use of Service and Device. You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in our sole judgment, the transmission, receipt or possession of such communication or material may constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. We reserve the right to terminate your service immediately if we, in our sole discretion, believe that you have violated this provision. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and you agree to indemnify and hold us harmless against any and all liability for any such use. If we, in our sole discretion believe that you may have violated this provision, we may forward the objectionable material, as well as your communications with us and your personally identifiable information to the appropriate law enforcement authorities for investigation and prosecution and you hereby consent to such forwarding.
1.4 Use of the Service and Device Outside the United States. You agree to assume all responsibility for use of the Service and Device outside of the United States. If the Service and Device are used in a country other than the United States, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold us harmless against any and all liability for any such use. We do not represent, warrant or guarantee the use or quality of the Service or Device used outside of the United States.
1.5 Tampering with the Device or Service. You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device. We reserve the right to terminate your Service without refund should you tamper with the Device. You agree not to make or attempt to make any use of the Service that is inconsistent with its intended purpose.
1.6 Theft of Service. You agree to notify us immediately if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances and you remain responsible for all charges for the Services until such time as you provide us with notice of the theft or fraudulent use of the Service. You are responsible for maintaining the confidentiality of your account number and/or password. You are responsible for all uses of your account, whether or not actually or expressly authorized by you.
1.7 Reassignment of Number upon Service Termination. Upon termination of the Service, we may, at our sole discretion, reassign a telephone number or Direct Inward Dialing ("DID") (collectively "Number") provided to you by us. You shall not obtain any rights, title or interest in the Number and the Number is not portable to other service providers. The Number is not to be used with any other device other than the Device provided by us and we reserve the right to change, cancel or reassign the Number at our discretion.
1.8 Service Distinctions. You acknowledge and understand that the Service is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the enhanced Service offering provided by us. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before any governmental telecommunications regulatory agencies.
1.9 Ownership and Risk of Loss. You bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped and received by you.
1.10 Intellectual Property. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our 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") are and shall remain our exclusive property and nothing in this Agreement shall grant you the right or license to use any such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we 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 us, which we reserve 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 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. NON-AVAILABILITY OF EMERGENCY (911) SERVICES OR DIRECTORY ASSISTANCE SERVICES.
2.1 Non-Availability of Emergency Service or Directory Assistance. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE SERVICE IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PRIMARY LINE VOICE SERVICES OR PLAIN OLD TELEPHONE SERVICE ("POTS") AND IS NOT MEANT TO PROVIDE GUARANTEED AUTOMATIC NUMBER IDENTIFICATION OR AUTOMATIC LOCATION INFORMATION CAPABILITIES ASSOCIATED WITH 911 OR E911 EMERGENCY SERVICES OR TO PERMIT ACCESS TO 411 DIRECTORY ASSISTANCE SERVICES. You agree to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your Service and Device(s). We will not be liable for any claim, damage, or loss, arising from the inability to contact emergency 911 services.
2.2 Alternative 911 Arrangements. You acknowledge that we do not offer primary line or lifeline services. We recommend that you always maintain an alternative means of accessing traditional emergency 911 services such as a POTS line or a cell phone.
3. POWER AND/OR BROADBAND SERVICE OUTAGES.
3.1 Loss of Service Due to Power Failure or Internet Service Outage. You acknowledge and understand that the Service will not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which is not provided by us) 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 we terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the End User to reset or reconfigure equipment prior to utilizing the Service.
4. PAYMENT AND BILLING.
4.1 Billing. Call times for each call are rounded up to the next whole minute and billed in full minute increments. Per call charges are rounded up to the next whole penny. All calls for which we receive answer supervision shall incur a minimum one-minute charge. We rely on answer supervision to determine whether and when a call has been answered. Answer supervision is a signal sent by the carrier connecting the call to indicate the start of call. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Where no answer supervision is received, we will commence billing forty (40) seconds following dial time unless the caller has terminated the call. You must notify us in writing of any disputed charges for calls on your account within sixty (60) days of the charges or you will have waived your right to dispute the charges. Funds in your account will expire if your account has been inactive for a period of 120 days.
4.2 Payment. All Services must be prepaid.
4.3 Equipment. If any Device was provided at no charge, then that Device must be returned to us, shipping prepaid, at the address we designate within 30 days of termination or an equipment charge will be billed to your credit card. The current equpment charge for the telephone adapter is $99.00..
4.4 Early Deactivation Fee. If you were charged a Service Activation Fee and cancel or terminate the Service within twelve (12) months of activation, we will charge you an Early Deactivation Fee. The Early Deactivation Fee is $39.99 and will be billed to your credit card. We will waive the Early Deactivation Fee after you have completed twelve (12) months of consecutive service.
4.5 Billing Disputes. You must notify us in writing of any disputed charges within sixty (60) days of the charges or you will have waived your right to dispute the charges.
4.6 Termination/Discontinuance of Service. We reserve the right to suspend or terminate the Service at any time, with or without cause and without notice to you. If we discontinue providing the Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy, you will waive the remainder of any monthly term if you have an unlimited plan.
4.7 Taxes. You are responsible for any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or Device. Such amounts are in addition to payment for the Service or Devices. If you are exempt from payment of such taxes, you shall provide us with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
5. WARRANTIES AND LIMITATION OF LIABILITIES.
5.1 Disclaimer of Warranties for Services. All Services are provided on an "as is" basis. We make no warranty to you or any other person or entity, whether express, implied or statutory, as to the description, quality, title, non-infringement, merchantability, completeness, or fitness for a particular purpose as to the Services provided to you, all such warranties hereby being expressly excluded and disclaimed. We do not warrant that the Services are error-free or will operate without packet loss or interruption nor do we warrant the reliability of any connection to or any transmission over the Internet. End user assumes total responsibility and risk for use of the Services.
5.2 Limited Warranty for Device. If End User purchased the Device new and the Device included a limited warranty at the time of purchase, End User must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If End User's Device did not include a limited warranty at the time of purchase, End User agrees that it accepts its Device "as is" and that End User is not entitled to replacement or refund in the event of any defect. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE, 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 END USER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
5.3 Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF THE SERVICES INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, USE, DATA, GOODWILL OR BUSINESS OPPORTUNITIES OF ANY KIND OR NATURE WHATSOEVER, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO THIS AGREEMENT OR TO THE SERVICES PROVIDED BY US. OUR ENTIRE LIABILITY HEREUNDER SHALL BE LIMITED TO A REFUND OF THE PURCHASE PRICE OF THE EQUIPMENT AND SERVICES PROVIDED HEREUNDER.
5.4 Indemnification. End User agrees to defend, indemnify, and hold us harmless from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, End User or any third party or user of End User's Service, relating to this Agreement, the Services or the Device. This paragraph shall survive termination of this Agreement.
5.5 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
6. GOVERNING LAW AND ARBITRATION.
6.1 Mandatory Arbitration. Any dispute or claim arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in New York, New York and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and End User will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. END USER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law. The Agreement and the relationship between us shall be 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 6.1, you agree to 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. Any failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.3 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
6.4 Entire Agreement. This Agreement constitutes the entire agreement between us and governs your use of the Service, superseding any prior agreements between us 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 us unless and until posted in accordance with Section 6.5 hereof.
6.5 Changes to Terms of Service. We may change the terms and conditions of this Agreement from time to time. Any changes to this Agreement will become binding on you effective on the date posted to this website and no further notice by us is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service.
Copyright 2005. All Rights Reserved.
Last Modified: March 9, 2005.
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