Terms and Conditions
This is an agreement ("Agreement")
between Talk Motion, Inc. ("we", "us" or "Talk Motion") and you, and
end user ("you" or "user") of Talk Motion's Internet Phone Service
(the "Service") as described herein. By establishing, activating,
using, or paying for the Service, you acknowledge that you have read
and understood these terms, you agree to the terms and conditions in
this Agreement, and you represent that you are of legal age to enter
this Agreement and become bound by its terms, including those
pertinent to 911 Emergency Dialing, and to the prices, charges, and
conditions provided to your is association with your enrollment,
including marketing materials and the Talk Motion website, which are
incorporated herein by reference. This Agreement governs the Service
and any devices - such as a VoIP phone, analog telephone adaptor,
multimedia terminal adapter, or computer operating software enabling
the Service (each alone or all collectively known as "Equipment") -
website, or software used in conjunction with the Service. If you
have purchased Equipment from an authorized Talk Motion retail
dealer, you are considered a "Retail Customer" and are governed by
certain Retail Customer terms and conditions contained below.
911 EMERGENCY DIALING
PLEASE READ THIS INFORMATION REGARDING 911 VERY CAREFULLY. BY ACTIVATING AND PAYING FOR THE SERVICE, YOU ACKNOWLEDGE AND AGREE TO THE LIMITATIONS OF TALK MOTION 911 EMERGENCY DIALING SERVICE, AND UNDERSTAND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR E911 CALLS. You agree to notify any user who may place calls using your Service, including any household residents or guests who may be present in your household, of the limitations of Talk Motion 911 Emergency Dialing.
PLEASE BE AWARE THAT EVEN IN THOSE AREAS IN WHICH TALK MOTION OFFERS 911 SERVICE, TALK MOTION CANNOT AND DOES NOT GUARANTEE THAT THE SERVICE WILL OPERATE AS INDENTED. THE ONLY WAY TO KNOW WITH ABSOLUTE CERTAINTY THAT YOU HAVE FUNCTIONING 911 SERVICE IS TO TEST THE SYSTEM; TALK MOTION IS NOT AUTHORIZED TO MAKE TEST CALLS TO THE 911 SYSTEM AND CANNOT AUTHORIZE YOU TO DO SO. YOU MAY WISH TO CALL THE NON-EMERGENCY NUMBER OF YOUR LOCAL POLICE OR FIRE DEPARTMENT TO FIND OUT IF THEY ARE ABLE TO HELP YOU OBTAIN SUCH PERMISSION.
TALK MOTION RECOMMENDS THAT YOU MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING EMERGENCY SERVICES IN THE EVENT OF A SERVICE DISRUPTION FOR ANY REASON.
Talk Motion 911 Emergency Dialing is not available in all areas. To activate this service where available, you must register the physical location of your Equipment with Talk Motion, and that location must be within the geographic serving area of a Public Safety Answering Point ("PSAP") to which Talk Motion has established connectivity for this service. If you fail to activate and properly configure the Service and the Equipment, the Service will not support 911 Emergency Dialing, and you acknowledge and agree to this requirement. 911 Emergency Dialing may not function for up to thirty (30) days after Talk Motion activates your Service, and you acknowledge and agree to this requirement.
Your must provide the address which will be associated with the Service ("Service Address") during the registration process. The service address your provide must be in the same rate center as the Household (primary) number you have selected. Failure to provide the correct and proper Service Address may result in misdirecting 911 calls to the incorrect PSAP or emergency operator and/or the failure to reach the correct location and render emergency service when requested. You acknowledge that 911 dialing will not function properly if you move your Equipment to another Service Address, either temporarily or permanently, unless the new Service Address has been properly recorded and is in an area for which Talk Motion provides 911 Emergency Dialing. You may change your Service Address by following the procedures specified on the Talk Motion website. Change of Service Address will take a minimum of ten business days to properly update the 911 emergency databases.
The following additional limitations apply to 911 Emergency Dialing when it is provided by Talk Motion:
In certain areas in which Talk Motion provides 911 Emergency Dialing, Talk Motion provides e911 capabilities. When the caller dials 911 on a Talk Motion enabled phone with E911 service, Talk Motion will automatically deliver the location information you provided at the time of activation, or as subsequently and properly updated, validated, and acknowledged by Talk Motion, to the PSAP with the 911 call. If the location information you provided is incorrect, the emergency call may be misdirected to a PSAP that does not serve your location, which as a result may be unable to render sufficient emergency service. You acknowledge that you are solely responsible for maintaining accurate physical location information on your Talk Motion account. If you move your Talk Motion equipment to another location, you must update your Service Address in accordance with the instructions on the Talk Motion website.
In some areas in which Talk Motion provides 911 Emergency Dialing, Talk Motion may not support E911, and your physical location information may not be automatically delivered to the PSAP with the 911 call. The PSAP or local emergency dispatcher receiving a non-E911 emergency call may not be able to capture and/or retain automatic number or location information. This means that the dispatcher may not know the phone number or physical location of the person who is making the 911 call. Therefore, a caller dialing 911 using Talk Motion may need to immediately tell the dispatcher the location of the emergency, and the caller must not prematurely disconnect the line, since the dispatcher may not have the phone number to call back the caller. If the caller is unable to speak or sufficiently describe the location, the emergency dispatcher may not be able to render emergency service to the appropriate location.
You understand and acknowledge that Talk Motion 911 Emergency Dialing has certain characteristics that distinguish it from traditional, legacy, circuit-switched 911 service. These characteristics may make Talk Motion unsuitable to some users. You should carefully evaluate your circumstances when deciding to activate Talk Motion service. You acknowledge that it is your responsibility to determine the technology or combination of technologies best suited to meet your emergency calling needs, and to make the necessary provisions for access to emergency calling services, such as maintaining a conventional phone line or wireless phone as a backup means of completing emergency calls.
You acknowledge and understand that a Service outage due to suspension of your account as a result of billing issues or any other reason, including, but not limited to, those reasons described elsewhere in this Agreement, will prevent all service, which may include Emergency 911 Dialing.
You acknowledge and understand that Talk Motion will not be liable for any Service outage and/or inability to dial 911 using Talk Motion or to otherwise access emergency service personnel due to the characteristics and limitation of Talk Motion Service set forth in this document. You agree to defend, indemnify, and hold harmless Talk Motion, 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, reasonable attorney fees) by, or on behalf of, you or any third party user of the Service relating to the failure or outage of the Service, including those related to 911 dialing. You acknowledge that Talk Motion does not offer Lifeline service, and that we strongly recommend that you always have an alternative means of accessing emergency service. The provision supplements the general indemnification provision found below.
The Service requires Equipment obtained through Talk Motion or a third party that allows you to place and receive calls by using your high-speed Internet connection. Talk Motion does not provide or support your high-speed Internet connection, which you need to supply at your own expense. We recommend that you high-speed connection have a capacity of at least 120 Kbps upstream and downstream. Since the Service depends on your high-speed connection, the correct configuration of the Equipment, and an adequate power supply, Talk Motion does not guarantee continuous availability. You acknowledge and understand that the Service will not function in the absence of electrical power or if there is an interruption of your high-speed Internet connection. A power failure may require you to reset or reconfigure your Equipment or other equipment in order to restore the Service.
You understand and acknowledge that the Service may not be compatible with all non-voice communications equipment, including but not limited to, home security systems, medical monitoring equipment, fax machines, satellite television systems, and computer modems. You waive any claim against Talk Motion for interference or disruption of such services and equipment.
The Service is offered on a month-to-month basis, beginning on the date Talk Motion activates Service, and automatically renews on a monthly basis. Talk Motion also offers the Service for twelve consecutive months pursuant to optional Talk Motion Annual Service Plans, described in greater detail below. You may cancel the Service at any time by contacting Talk Motion according to the procedure described on the Talk Motion website. If you cancel Service prior to the end of a monthly term, you will be responsible for paying the full month's charges to the end of the then-current monthly term, including applicable fees and usage charges. Expiration of the term or cancellation of Service does not excuse you from paying all unpaid, accrued charges due in relation to the Agreement. You will not receive a partial credit for any prepaid monthly service charge for any days remaining in your cancellation month. Any credits or refunds for Equipment purchased by Retail Customers are subject to the refund policies of the retail dealers where the equipment was purchased.
The Service is not a telecommunications service, and important distinctions exist between telecommunications service and the Service. In addition, different regulatory treatment is applied to the Service as compared with telecommunications service, which may affect your rights before regulatory agencies.
You acknowledge and agree that you are fully responsible for all use on your account, and you accept full liability and responsibility for the actions of anyone who uses the Service via your account with or without your permission. You should safeguard your usernames and password, as well as the identifier of the Equipment (referred to as the "MAC address") which Talk Motion uses to authenticate usage on your account. Some of your calls may be transmitted over the public Internet, and you acknowledge that you are aware that the Internet is not a secure network, and that third parties may be able to intercept, monitor, or corrupt information you transmit over the Internet.
USE OF SERVICE
You are expressly prohibited from reselling or transferring the Service, Equipment, and/or software to any other person for any purpose, without express written permission from Talk Motion in advance.
The Service is intended for normal residential use. You are expressly prohibited from using the Service for autodialing, telemarketing (including without limitation charitable or political solicitation or polling), continuous or extensive call forwarding, activities involving continuous connectivity, all types of broadcasting including fax broadcast, fax blasting, or any other activity that results in excessive usage inconsistent with normal residential or home office usage patterns. If Talk Motion determines, in its sole discretion, that you are reselling the Service, allowing persons residing outside of your household to regularly use the Service, or that your Service is being used for any of the aforementioned activities, Talk Motion reserves the right to immediately terminate without notice or modify the Service and to assess additional charges for each month in which excessive usage occurred.
Talk Motion does not support certain call types offered by traditional phone services, including, but not limited to, 0+ calling (including without limitation collect or third party billing), 900 and 976 calls, and 10-10 "dial-around" calls. The Service may not support 311, 511, and/or other x11 services (other than 911 and 411) in some or all Service areas.
If you transfer to Talk Motion an existing phone number which is currently subscribed to a carrier other than Talk Motion, the following terms and conditions apply: (1) you hereby authorize Talk Motion to notify your local telephone company of your decision to switch your local services to Talk Motion and to transfer your telephone number, and represent that you are authorized to take this action; (2) you acknowledge and agree that you must successfully install and activate your Equipment prior to the date that the number switch becomes effective; and (3) Talk Motion has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number. You remain solely responsible for any charges you incur with the telephone company from which the number is being transferred during the period of the transfer, regardless of delays in completing the transfer caused by any reason by any party.
You are expressly prohibited from any use of the Service or any other action that, in Talk Motion's sole discretion, is deemed to present a risk to the network integrity or security of Talk Motion or its vendors, whether directly or indirectly. Talk Motion, in its sole discretion, may terminate your Service without advance notice if it determines your actions could cause a network disruption or security breach.
Your may not sell any telephone number assigned by Talk Motion ("Number"). Upon termination of the Service, Talk Motion may, in its sole discretion, release a Number that was ported in from a previous service provider to Talk Motion by you and used in connection with your Service provisioned by Talk Motion to your new service provider, if such new service provider is able to accept such Number, provided that your entire account has been terminated, that you have paid all charges due to Talk Motion, and that you request the transfer upon terminating your account.
The Service in intended for use in the United State. If you remove the Equipment to a country other than the United States, you do so at your sole risk, including the risk that such activity violates local laws in the country where you do so. Use of the Service is expressly prohibited wherever its use violates local laws, and you are personally liable for any such violations. Talk Motion reserves the right to terminate your Service immediately and without notice if it determines that you are using the Service in violation of applicable local laws.
You agree to use the Service only for lawful purposes. You are expressly prohibited from using the Service to transmit or receive any communication or material of any kind when in Talk Motion's sole judgment the transmission, receipt, or possession of such communication or material would constitute, or encourages conduct that would constitute, a criminal offense, give rise to a civil liability, or otherwise violate any applicable laws. You are expressly prohibited from using the Service or Equipment for any abusive or fraudulent purpose, including using the Service in a way that interferes with our ability to provide the Service to you or others customers or avoids your obligation to pay for communications services. Talk Motion, in its sole discretion, may terminate your Service without advance notice if it believes you have violated the aforementioned restrictions, or if you act in a manner that is threatening, obscene, harassing, or abusive to Talk Motion personnel. You are liable for any and all use of the Service by any person using the Service provided to you and agree to indemnify and hold harmless Talk Motion against any and all liability for any such use. If Talk Motion, in its sole discretion, believes that you have violated the aforementioned restrictions, Talk Motion may forward personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
You agree not to change the electronic serial number or equipment identifier, if any, of the Equipment, or to perform a factory reset of the Equipment, without express written permission from Talk Motion in each instance which Talk Motion, in its sole discretion, may deny. You agree not to disrupt the Service or make any use of the Service that in inconsistent with its intended purpose or to attempt to do so. Talk Motion, in its sole discretion, may terminate your Service without advance notice should you tamper with the device.
You agree to notify Talk Motion immediately if the Equipment is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. You must provide a detailed description of the circumstances of the theft or stolen or fraudulent use of the Service and supply any additional documentation reasonably requested by Talk Motion. Failure to do so in a timely manner may result in the termination of your Service and additional charges.
If you decide to use the Service through an interface device no provided or supported by Talk Motion or an authorized Talk Motion retail dealer, which Talk Motion reserves the exclusive right to prohibit, you warrant and represent that you posses all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Talk Motion and it's vendors against any and all liability arising out of your use of such alternative interface device with the Service. Talk Motion has no obligation to support or service the use of such alternative interface devices in any way, and in its sole discretion may decline to provide the configuration information required to allow the device to effectuate the Service.
The Service and Equipment and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Equipment, and all Services, information, documents, and materials on Talk Motion's website are protected by copyright, trademark, or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively "Marks") of Talk Motion are and shall remain the exclusive property of Talk Motion and nothing in this Agreement shall grant you the right or license to use such Marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to use in conjunction with providing the Service or embedded in the Equipment, other than a nontransferable revocable license to use such firmware or software strictly in accordance with the terms and conditions of the Agreement, and that the Equipment is exclusively for use in connection with the Service.
Talk Motion reserves the right to audit your use of the Service to enforce the provisions of this Agreement. Talk Motion reserves the right to track and monitor your Service and usage subject to the requirements of the United States Patriot Act and other laws and appropriate law enforcement processes. You acknowledge and agree that this Agreement is sufficient notice to you of such monitoring to the extend any notice is required under applicable federal or state law.
CHARGES AND PAYMENTS
You must provide a valid credit or debit card number when the Service is activated. Talk Motion will not automatically charge your credit card when a bill is due, a payment request will be generated and emailed to the email address we have on file. The payment is due upon receipt and must be made by the invoices payment due date to avoid interruption in service. Your right to use the Service is subject to any limits established by your credit or debit card issuer. Your charges and credits issued will appear on an online billing statement that you may access through our payment processors website. You give Talk Motion and/or our merchant processor permission to obtain authorization for use of your credit or debit card from your card issuer. 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 Talk Motion and/or our merchant processor at once. Although Talk Motion does not generally automatically charge credit cards, your initial use of the Service authorizes Talk Motion to charge the card account number on file with Talk Motion and/or our merchant processor, updated by any changed information related to card expiration, replacement, or substitution. This authorization remains valid until 30 days after Talk Motion receives your notice to terminate Talk Motion's authority to charge your card, whereupon Talk Motion will charge you for any outstanding charges and terminate the Service. Talk Motion bills all charges and applicable taxes and fees monthly in advance (except for usage-based charges, which will be billed monthly in arrears, plus any other charges which Talk Motion chooses to bill in arrears) to your card. Talk Motion is not responsible for any overdraft or other charges imposed by your card issuer or bank due to insufficient funds in your account. Talk Motion reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50. All charges will be billed according to the rates and terms set forth in published materials and found on the Talk Motion website.
You understand that you are responsible for self-installation of the Equipment and any configuration of the Service once you receive the Equipment. If the Equipment is shipped to your by Talk Motion, you will be billed when the Equipment is shipped. You are encouraged to complete installation of the Service as soon as possible in order to take full advantage of your Service period. You will be responsible for full payment for the charges on your Talk Motion bill even if you do not install the Equipment promptly or use the Service. If you purchase Equipment from an authorized Talk Motion retail dealer, your Service is considered active once you complete the online Service activation process at the Talk Motion website.
From time to time, Talk Motion may offer a Risk-Free Cancellation Policy ("Trial Guarantee"), the duration (the "Trial Period") and terms of which may vary according to the terms of specific sales promotions as described in the promotional literature or on the website, which is applicable only to your first-ordered account. (You will not qualify for the Trial Guarantee program if you cancel and subsequently re-establish a Talk Motion account at the same or another location). Under the terms of this Trial Guarantee, if it applies, Talk Motion may refund some or all charges, including any applicable Equipment fee, provided the terms described below are satisfied. Talk Motion reserves the right to terminate, revoke, or change the terms of this Trial Guarantee at any time, without prior notice. In order to be entitled to this program, you must: (1) cancel the Service within the specified number of days in the Trial Period after the Activation Date; and (2) return the Equipment, if received directly from Talk Motion, undamaged and in original condition within seven days of Service cancellation, with all original packaging, documentation, and accessory materials. Retail Customers who purchased the Equipment from a Talk Motion authorized retail dealer must return the Equipment to the dealer where it was purchased, and are subject to the terms and conditions of that dealer with respect to any refund of the purchase price of the equipment. No refund of usage charges or any taxes or fees applicable to such charges will apply, including but not limited to international calling and directory assistance charges. Equipment must be returned with a valid return authorization number obtained from Talk Motion customer service, following prescribed procedures. You are responsible for the cost and risk of return shipping, unless otherwise specified in the terms of the promotional offer that applied to your enrollment and activation.
The annual services fees associated with the optional Talk Motion Annual Service Plans represent payment for twelve consecutive months of Service commencing on the first day any applicable trial period after the activation Date. You will be responsible for any additional charges for services or usage not covered by the plan, billed on a monthly basis. You can cancel the Service prior to the end of the annual period, you will receive a refund on a prorated fee basis for remaining full month periods, less outstanding charges. You will not receive a refund of any applicable Equipment fee unless you cancel your Service with the Risk-Free Trial Guarantee period and return the Equipment pursuant to the procedure outlined above. At the conclusion of the annual period, your Service will automatically renew for a subsequent twelve-month period at the then-current renewal price for the selected Talk Motion Annual Service Plan, unless you choose to switch to an alternate pricing plan or cancel Service prior to the anniversary of the Activation Date.
Prices and charges relating to the Service are posted on the Talk Motion website. We may change the prices and charges for the Service from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Service are effective no sooner than seven days (1) after posted on the Talk Motion website or (2) you are otherwise notified of the changes.
We may suspend, restrict, or cancel the Services and this Agreement if you do not make payments for current or prior bills by the required due date. We may also take appropriate steps or require you to take certain action when you or Talk Motion are or have been the target of fraud related to your account. Service suspension or cancellation will result in your loss of the number associated with the Service.
We may add interest charges to any past due amounts at the lower of 1.5% per month or the maximum rate allowed by law, prorated for each day payment is past due. Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of our rights to collect the full amount of your charges for the Service. You agree to reimburse us for reasonable attorneys' fees and any other costs associated with collecting delinquent or dishonored payments. If charges cannot be processed through your credit or debit card, we will charge you an additional $25.00. If the state where you receive the Service requires a different fee, we will charge you that amount.
You are responsible for, and must pay, any applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, Universal Service fund and 911 fees, and 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 associated equipment. These amounts are in addition to payment for the Service or equipment and will be billed to your credit or debit card as set forth in this Agreement. If you are exempt from payment of such charges, you must provide documentation satisfactory to us that you are exempt. Tax exemption will only apply from and after the date Talk Motion receives and verifies this documentation. Taxes and other applicable fees will be in the amounts specified by federal, state, and local authorities.
You acknowledge and agree that credit allowances for interruption of the Service will not be provided.
You must notify Talk Motion within seven days after receiving your credit or debit card statement if you dispute any Talk Motion charges on the statement or such dispute will be deemed waived.
You may cancel the Service at any time by notifying Talk Motion according to the procedures specified on the Talk Motion website. You remain fully liable for accrued charges, taxes, and fees outstanding at the time of termination, and you authorize Talk Motion to process these amounts to your credit debit card. If you received Equipment directly from Talk Motion and you cancel your Talk Motion Service, Talk Motion reserves the right to request that you return the equipment to us. If you do not return the equipment as requested, you may be liable for additional charges and/or forfeit any Talk Motion Annual Service Plan refunds that might otherwise apply. You will be charged a disconnection fee of $49.99 per voice line if your Service is disconnected, subject to applicable state and local laws. However, if your Service is disconnected after 2 years following your activation date, the disconnection fee is waived. Upon disconnecting your service, you will loose all telephone numbers associated with your account. Any returns or Equipment purchased by Retail Customers are subject to the policies of the Talk Motion authorized retail dealer where the Equipment was purchased.
Your agree to defend, indemnify, and hold Talk Motion, its affiliates, and agents and any other service provider who furnishes services to you or enables us to furnish services to you in connection with this Agreement or the Service, harmless from claims or damages relating to or arising out of the Service, the Equipment or its installation, or this Agreement, including, but not limited to, 911 Emergency Dialing or dialing associated with a security system.
You agree that Talk Motion should not be and is not responsible for any third party claims against us that arise from your use of the Service. Further, you agree to reimburse us for all of our costs and expenses related to the defense of any such claims, including attorneys' fees, unless such claims are based on our willful misconduct or gross negligence. Notwithstanding the foregoing, your indemnification obligations related to 911 emergency dialing are more expansive, as described above.
LIMITATIONS OF LIABILITY
BY ENROLLING IN, ACTIVATING, USING, OR PAYING FOR THE SERVICE, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE LIMITATIONS OF TALK MOTION SERVICE DESCRIBED HEREIN.
TALK MOTION'S LIABILITY TO YOU ON ACCOUNT OF ANY ACT OR OMISSION OF TALK MOTION RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH, PROXIMATELY CAUSED BY TALK MOTION'S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE. NOTWITHSTANDING THE FOREGOING, IN NO EVEN SHALL TALK MOTION HAVE ANY LIABILITY TO YOU WHATSOEVER ON ACCOUNT OF ANY ACT OR OMISSION OF TALK MOTION RELATED TO 911 EMERGENCY DIALING. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF THE FORM OF ACTION. TALK MOTION AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF, ANY OF YOUR SOFTWARE, FILES, DATA, OR PERIPHERALS. FURTHERMORE, IN NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF TALK MOTION OR ITS AFFILIATES ARISING WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY YOU IN THE TWELVE MONTHS UNDER THIS AGREEMENT IMMEDIATELY PRECEDING THE CLAIM.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE MATERIALS ACCOMPANYING THE EQUIPMENT, WE MAKE NO WARRANTIES OF ANY LIND REGARDING THE SERVICE, EQUIPMENT, OR ANY OTHER EQUIPMENT AND EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTIES THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS, WE ALSO MAKE NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, TALK MOTION EMPLOYEES, AGENTS, OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
DISPUTE RESOLUTION BY BINDING ARBITRATION
IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION.
Any dispute or claim between you and Talk Motion airing out of or relating in any way to the Service or the Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator's decision shall be final and binding. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms. Without limiting the foregoing, the parties agree that no arbitrator has the authority to award relief in excess of what this Agreement provides.
NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATION MAY NOT AWARD DAMAGES THAT ARE BARRED BY THIS AGREEMENT, INCLUDING PUNITIVE OR EXEMPLARY DAMAGES OR ATTORNEYS' FEES. YOU AND TALK MOTION BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
The arbitration shall be conducted in English in Los Angeles, California and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or Talk Motion may seek any interim or preliminary relief from a court of competent jurisdiction in Los Angeles California, necessary to protect the rights or property of you or Talk Motion pending the completion of arbitration.
YOU ACKNOWLEDGE THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
This Agreement does not provide any third party with a remedy, claim, or right of reimbursement. Failure by Talk Motion to enforce any provision(s) of this Agreement shall not be construed as a waiver of any provision or right. This Agreement, and all other aspects of the use of the Service and the Talk Motion website, shall be governed by and construed in accordance with the laws of the state of California, without regard to its choice of law rules. This governing law provision applies no matter where you reside, or where you use or pay for the Service. This Agreement constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements, or proposals concerning the Service, including representations, whether written or oral. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor Talk Motion is relying on any representations or statements by the other party or any other person that are not included in this Agreement. If any provision in this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
Talk Motion will not be responsible to you for any delay, failure in performance, loss, or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control.
We can assign all or part of our rights or duties under this Agreement without notifying you. If we do that, we have no further obligations to you. You may not assign this Agreement or the Service without our prior written consent.
The provisions of this Agreement relating to indemnification (including those relating to 911 Emergency Dialing), limitations on liability, warrant limitations, billings, and your obligations to pay for the Service provided, including any additional usage charges, shall survive any termination of this Agreement or termination of the Service.
Failure by Talk Motion to insist upon strict performance of any terms or conditions of this Agreement or failure to delay to exercise any rights or remedies provided herein or by law shall not release you from any of the warranties of obligations of this Agreement, and shall not be deemed a waiver of any right of Talk Motion to insist upon strict performance hereof or any of its right and remedies.
Talk Motion may change this Agreement from time to time. Any changes will be posted at the Terms and Conditions section of the Talk Motion website, currently located at www.talkmotion.com. Notice will be considered received by you and any such changes will become binding and effective on the date the changes are posted to the Talk Motion website, except in the case of changes to the prices or charges, when we will comply with our notice commitments described above. IF YOU CONTINUE TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICE AFTER ANY CHANGES IN THE PRICES, CHARGES, TERMS, OR CONDITIONS, YOU AGREE TO THE CHANGES. The Agreement as posted supersedes all previously agreed to electronic and written terms and conditions.
Where required by law, customers who cancel their service within the first three days, or seven days, as applicable, following acceptance of this Agreement will be refunded all charges incurred with respect to their account.
Talk Motion, Inc.
This Agreement was last updated on February 1st, 2007.
Copyright © 2007, Talk Motion, Inc. All rights reserved.