|This is an agreement ("Agreement") between Infinet Communications Group Inc. dba Digital Voice™ ("we," "us" or "DigitalVoice") and the user ("you," "user" or "Customer") of DigitalVoice's communications services ("Service") and any IP adapter or gateway devices, ("Device" or "Equipment") used to provide the Service.
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY 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 DigitalVoice-certified Devices or Equipment. The 911 Dialing feature cannot be used in conjunction with a DigitalVoice Soft Phone or Virtual Numbers. 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 DigitalVoice 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 DigitalVoice 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 858-384-0468.
1.2 Registration of Physical Location Required.
For each phone number that you use for the Service, you must register with DigitalVoice 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 DigitalVoice web account 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 at your location or our servers location or both. 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 DigitalVoice 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 DigitalVoice 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)Service Outages Due to any failures that may arise from the facilities or equipment used by DigitalVoice or other telecommunications service providers with whom DigitalVoice is interconnected ("other providers"). This includes any acts, mistakes, omissions, interruptions, delays, errors, defects or misrouting of communication by DigitalVoice or other providers. Such outages may affect or prevent all Service, including 911 Dialing, from functioning.
(f)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 DigitalVoice 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 DigitalVoice, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
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.
Except for customers on one year contract, this Agreement will automatically renew on a monthly basis and you will be responsible for an additional full months charges, including, without limitation, all unbilled usage charges if applicable, all of which will immediately become due and payable, unless you provide written notice of cancellation to Digital Voice at least ten (10) days before the end of your current monthly term. Digital Voice will pursue collection for unpaid amounts on disconnected accounts and may report to credit bureaus.
Customer on one year contract may cancel Service before the end of the one (1) month free trial or after twelve (12) months of the Activation Date without penalty. If Customer on one year contract cancels the Service for any reason after the one (1) month free trial or before twelve (12) months of service, a $50 cancellation fee will be applied upon cancellation.
2.2.1 Residential Use
If you are subscribing to DigitalVoice's Residential services, the Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use. You cannot use the Service or Device for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, bulk faxing or any other commercial activities. You cannot 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. DigitalVoice reserves the right to immediately terminate or modify the Service, if DigitalVoice determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
2.2.2 Business Use
If you are subscribing to DigitalVoice's Small Business services, the Service and Device are provided to you as a small business user. You cannot 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. You cannot use the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), bulk faxing or any other activity that will result in excessive use of the Service. DigitalVoice reserves the right to immediately terminate or modify the Service, if DigitalVoice determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
2.3 Prohibited Use of Service and Device
DigitalVoice reserves the right to terminate your Service without notice if you violate any of the following acceptable use policies.
2.3.1 Compliance to Local Laws
You cannot to use DigitalVoice Service and Device for transmitting or receiving any communication or material of any kind that would (i) constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. DigitalVoice reserves the right to terminate your service immediately and without advance notice if DigitalVoice, in its sole discretion, believes that you have violated any of the above restrictions. You further agree that DigitalVoice may forward your personal information or any communications you made through DigitalVoice to appropriate authorities for investigation and prosecution if we believe that you have violated any of the above restrictions. You agree to indemnify and hold harmless DigitalVoice against any liability resulting from misuse of your Service and Device.
2.3.2 Unauthorized Use of Firmware or Software
Any Device provide to you will contain firmware or software protected by trademark, copyright or other intellectual property laws. You agree to use the firmware or software only to receive the Service. DigitalVoice will not provide any passwords, codes or other information or assistance that would allow you to use the Device for any other purpose.
You will not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
2.3.3 Unauthorized Use of Device or Service
You will not erase or modify any serial numbers or equipment identifiers on the Device. You will not perform a factory reset of the Device.
2.4 Loss of Power or Internet Access
You acknowledge and understand that the Service does not function in the event of power failure and that the Service requires a fully functional broadband connection to the Internet (which is not provided by DigitalVoice). In the event that there is an interruption of service by your Internet service provider ("ISP"), you will continue to be billed for the Service until you terminate the Service in accordance with this Agreement.
2.5 Theft of Service
You agree to notify DigitalVoice immediately, in writing or by calling the DigitalVoice customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as DigitalVoice receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
2.6 Service Difference
You acknowledge and understand that the Service is not the same as telephone service. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal or Provincial telecommunications regulatory agencies.
3. CHARGES/ PAYMENTS/ DEFAULT/ TAXES/ TERMINATION
Upon service activation, you agree to provide us a valid email address and your credit card information to be stored on file. We reserve the right to refuse credit cards from select issuers. All amounts due will be charged to your credit card.
All charges, applicable taxes and surcharges will billed monthly in advance. All for usage-based charges, which will be billed monthly in arrears. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise us immediately or update your credit card file through our website.
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 $100 or the credit limit preset on your account. DigitalVoice bills usage charges in full minute increments that are rounded up to the next full minute.
The above fees and charges are defined as follows:
3.2 Billing Disputes
- Device Deposit - A CAD$50 fee will be charged as security deposit if you choose a device rental option at service activation. This deposit is fully refundable upon return of the Device, in original salable condition, after you cancel your account.
- Monthly Service Fee - This is the basic charge associated with your service. This fee includes the calling charges defined by your plan, the features associated with your plan and basic account services.
- Usage Charges - If you exceed the number of calling minutes on your plan, we will bill you for the minutes you use above your allowance. We also bill for calls to directory assistance and other information services.
- Long Distance Usage Charges - These are the fees associated with calls to locations outside the local calling area of your assigned DigitalVoice phone number or unlimited calling areas as specified in your plan.
- Advanced Features, Add-Ons, Premium Services - These are additional fees for enhanced features and services such as Toll Free.
- Equipment Purchases - These are for VOIP adapter and router equipment associated with VOIP service if you choose a device purchase option at service activation.
- Regulatory Recovery Fee - A regulatory recovery surcharge of $1.50 applies to each phone number for regulatory-related fees and expenses, including taxes, number portability charges, and related legal fees.
You must notify DigitalVoice in writing within 7 days after receiving your credit card statement if you dispute any DigitalVoice charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following:
|| By Mail:
270-4611 Viking Way,
V6V 2K9 Canada
DigitalVoice accepts payments only by credit card as set forth in Section 3.1. Your initial use of the Service authorizes DigitalVoice to charge the credit card account number on file with DigitalVoice, including any changed information given DigitalVoice if the card expires or is replaced, or if you substitute a different card, for DigitalVoice charges as set forth in Section 3.1. This authorization will remain valid until 30 days after DigitalVoice receives your written notice terminating DigitalVoice's authority to charge your credit card, whereupon DigitalVoice will charge you the disconnect fee and any other outstanding charges and terminate the Service. DigitalVoice may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with DigitalVoice is declined or reversed, your credit card expires and you have not provided DigitalVoice with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to DigitalVoice for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by DigitalVoice in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
3.4 Termination/Discontinuance of Service
DigitalVoice reserves the right to suspend or discontinue providing the Service at any time in its sole discretion. If DigitalVoice terminates the Service without 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 because you have violated the terms 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 any charges related to the Device.
3.5 30 Day Money Back Guarantee
If customer cancels service within 30 days of activation, DigitalVoice will provide a full refund to customers upon request. The money back guarantee applies only to the first-ordered line per account, not to additional or secondary lines. We will refund the activation fee, the monthly charge for the first month of Service, shipping charges and setup fee provided that:
a) you have not exceeded 250 minutes of usage;
b) you cancel your Service within the applicable period;
c) All rental equipment is returned in the original packaging, including all components and manual within 14 days of cancellation.
d) the Device is returned in the original packaging with the UPC or bar code intact and is accompanied by all components, accessories, parts, manuals, registration cards and other documentation; and
e) Purchased equipment returned in original packaging, including components and manuals, within 30 days is fully refundable. Returns after 30 days of purchase is subject to a $25 re-stocking fee. Returns after 180 days of purchase will be non-refundable.
f) prior to returning the Device to us, you obtain a valid return cancellation number from http://www.triniticomm.net/cancel
Customer can cancel Service by obtaining a cancellation number from http://www.triniticomm.net/cancel and returning rental Device to us within fourteen (14) days. Cancellations are not deemed completed and service charges will continue to apply until we have received rental Device with a valid cancellation number.
3.7 Return of Rental Device
Rental Device must be returned to DigitalVoice within fourteen (14) days of cancellation to the following address:
|| 270-4611 Viking Way,
V6V 2K9 Canada
Rental Device must be returned with a valid return cancellation number obtained from http://www.triniticomm.net/cancel in the original packaging and in original working condition. It must include all components, manuals and registration card(s). If Rental Device is lost or is returned incomplete or damaged, replacement charges will apply as follows:
||Power plug clip
You are solely responsible for the cost and risk of return shipping of Rental Device to us.
4. CHANGES TO THIS AGREEMENT
DigitalVoice may change the terms and conditions of this Agreement at any time. Such changes will become effective and binding once posted on to the "Terms & Conditions" section of DigitalVoice's website at http://www.triniticomm.net and no further notice by DigitalVoice is required.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
DigitalVoice shall not be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
1) act or omission of an underlying carrier, service provider, vendor or other third party;
2) equipment, network or facility failure;
3) equipment, network or facility upgrade or modification;
4) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5) equipment, network or facility shortage;
6) equipment or facility relocation;
7) service, equipment, network or facility failure caused by the loss of power to Customer;
8) outage of Customer's ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond DigitalVoice's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, , or degradation of voice quality.
DigitalVoice's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to DigitalVoice's performance or nonperformance hereunder or (iii) any DigitalVoice act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages
IN NO EVENT SHALL DigitalVoice, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT DigitalVoice WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
Customer agrees to defend, indemnify, and hold harmless DigitalVoice, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device. This paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service
TRINITICOMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, TRINITICOMM DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER TRINITICOMM NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO TRINITICOMM'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TRINITICOMM'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TRINITICOMM ORTRINITICOMM'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer purchased the Device new from DigitalVoice and the Device included a limited warranty at the time of purchase, Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If Customer's Device did not include a limited warranty from DigitalVoice at the time of purchase, Customer agrees that it accepts its Device "as is" and that Customer is not entitled to replacement or refund in the event of any defect, except that for Retail Customers only, DigitalVoice will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Retail Customer limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. Retail Customer's sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 1.8. Retail Customer must include with the returned Device a letter stating that the Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. This Retail Customer limited warranty shall also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein.. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, DigitalVoice MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
5.6 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. DigitalVoice reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if DigitalVoice determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with DigitalVoice's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. DigitalVoice's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold DigitalVoice against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and DigitalVoice arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by a arbitration organization of DigitalVoice's choosing. The arbitration shall take place in Vancouver, BC, Canada 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 Customer 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. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and DigitalVoice shall be governed by the laws of the state of Ohio in the United States of America and in conjunction with the laws of British Columbia, Canada, wherever applicable. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and DigitalVoice agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Ohio, United States.
6.3 Entire Agreement
This Agreement and the rates for Services found on DigitalVoice's website constitute the entire agreement between you and DigitalVoice and govern your use of the Service, superseding any prior agreements between you and DigitalVoice 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 DigitalVoice unless and until posted in accordance with Section 3 hereof.
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.
DigitalVoice's service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. DigitalVoice is not liable for any lack of privacy which may be experienced with regard to the Service.