TERMS OF SERVICE
MASHELL TELECOM, INC (D/B/A Call-Smart)
These Terms of Service constitute the agreement ("Agreement") between Mashell Telecom, Inc (d/b/a Call-Smart), the "Company” and the user ("you," "user" or "Customer") of the Company's Residential Voice Over Internet Protocol service and any related products or services ("Service"). This Agreement governs both the Service and any equipment, such as an IP phone, Multimedia Terminal Adapter (MTA), Embedded Multimedia Terminal Adapter (EMTA), Analog Telephone Adapter or any other IP connection Equipment, ("Equipment") used in conjunction with the Service. By 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. SERVICE
1.1 Term
Service is offered on a monthly basis for a term, which begins on the date the Company activates 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 the Company notice of non-renewal. Rates for the Service are set out on the rate schedules on the Company's web site, www.call-smart.com/terms.html.
This Service is available for residential customers only. This Service may not be used for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, telecommuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. This Service may not be resold or transferred to any other person for any purpose, or make any charge for the use of the Service, without express written permission from the Company in advance. The Company reserves the right to immediately terminate or modify the Service, if the Company determines, in its sole discretion, that the Service is being used for non-residential or commercial use. If the Service is used for a commercial or governmental activity, Customer agrees to pay the Company three times the applicable residential rate for the period from the time the Customer began using the Service to the date the Service is terminated.
The Service does not function in the event of power failure. The Service requires a fully functional broadband connection to the Internet and that, accordingly, in the event of an outage of, or termination of broadband service, the Service will not function, but you will continue to be billed for the Service unless and until you or the Company terminate the Service. A power failure or disruption may require the customer to reset or reconfigure equipment prior to utilizing the Service. 911 dialing does not function in the event of a power failure or disruption. Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored. A power failure or disruption may require the customer to reset or reconfigure equipment prior to utilizing the Service or 911 dialing.
1.2 Copyright / Trademark / Unauthorized Usage of Equipment, Firmware or Software
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 the Company's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of the Company are and shall remain the exclusive property of the Company and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Equipment, 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 Equipment is exclusively for use in connection with the Service and that the Company will not provide any passwords, codes or other information or assistance that would enable you to use the Equipment for any other purpose. If you decide to use the Service through Equipment not provided by the Company, which the Company reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that Equipment with the Service and you will indemnify and hold harmless the Company, its officers, directors, employees and agents against any and all liability arising out of your use of such interface Equipment 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.
1.3 Tampering with the Equipment or Service
You agree not to change the electronic serial number or equipment identifier of the Equipment, or to perform a factory reset of the Equipment, without express permission from the Company in each instance which the Company may deny in its sole discretion. The Company reserves the right to terminate your Service should you tamper with the Equipment, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the Service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
1.4 Theft of Service
You agree to notify the Company immediately, in writing or by calling the Company customer support line, if the Equipment 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 Equipment 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 the Company receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Equipment stolen from you and any and all stolen Service or fraudulent use of the Service.
1.5 Return of Equipment
Upon termination of the Service, user shall be responsible for the return of Company furnished premise equipment or be liable for the cost thereof.
Upon termination of the Service, the Company may, at its sole discretion, release a telephone number that was ported in from a previous service provider to the Company and used in connection with a customer's service provisioned by the Company to a new service provider, if such new service provider is able to accept such number, and provided that the customer's account (i) has been terminated; (ii) is completely current including payment for all charges and disconnect fees; and (iii) the customer requests the transfer upon terminating the account.
1.6 Ownership and Risk of Loss
You shall be deemed the owner of the Equipment, and bear all risk of loss of, theft of, casualty to or damage to the Equipment, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to Section 1.5 and has been received by the Company.
2. EMERGENCY SERVICES- 911 DIALING
Neither the Company nor its officers, directors, employees or agents 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 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of the Company. The customer agrees to indemnify and hold harmless the Company and its officers, directors, employees and agents from any claim or action arising out of misroutes of 911 calls, including but not limited to customer's failure to follow correct activation procedures for 911 calling or the provision to the Company of incorrect information in connection therewith.
Service outages or suspension or termination of broadband service will prevent ALL service, including 911 dialing. Service outages due to suspension of your account as a result of billing issues will prevent ALL Service, including 911 dialing. If there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
2.1 Limitation of Liability and Indemnification
You acknowledge and understand that the Company's liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this Agreement. You agree to defend, indemnify, and hold harmless the Company, its officers, directors, employees 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 the Service relating to the absence, failure or outage of the Service, including 911 dialing and/or inability of Customer or any third person or party or user of the Service to be able to dial 911 or to access emergency service personnel.
911 dialing does not function properly or at all if the customer moves or otherwise changes the physical location to a different street address. Failure to provide the current and correct physical address and location of the Equipment used in providing the Service may result in any 911 dialing being routed to the incorrect local emergency service provider.
3. CHANGES TO THIS AGREEMENT
The Company may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the "Service Announcements" section of the Company's website. Such changes will become binding on Customer on the date posted to the Company website and no further notice by the Company is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Equipment and also supersedes any written terms provided in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Equipment.
4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
4.1 Billing
The Company will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which the Company decides to bill in arrears). Including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on the Company's website.
4.2 Termination/Discontinuance of Service
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 Equipment (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of the Company or of a third party provider to which the Company is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.4, all of which immediately become due and payable.
4.3 Taxes
You are responsible for, and shall pay, 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, use, or payment for the Service or Equipment.
4.4 Disconnect Fee
Customer will be charged a disconnect fee of $139.99 per voice line upon termination of Service for any reason or for convenience by Customer. To receive a credit for the disconnect fee, Customer must return the Equipment undamaged and in original condition within fourteen (14) days of termination of the Service. The Company will not credit Customer if the Equipment is damaged or not in its original condition as received by the Customer.
4.5 Billing Disputes
You must notify the Company in writing within 7 days after receiving your statement if you dispute any charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
Billing Department
Rainier Group
PO Box 639
Eatonville, WA 98328
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
The Company 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 broadband service;
9) Act or omission of Customer or any person using the Service or Equipment provided to Customer; or
10) Any other cause that is beyond the Company's control, including without limitation a failure of or defect in any Equipment, 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.
The Company's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to the Company's performance or nonperformance hereunder or (iii) any Company 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 THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES 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 THE COMPANY WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless the Company, its officers, directors, employees 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 Equipment.
5.4 No Warranties on Service
THE COMPANY 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, THE COMPANY 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 THE COMPANY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES 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 THE COMPANY'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 EQUIPMENTS OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF THE COMPANY'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR EQUIPMENT, IF ANY, BY THE COMPANY OR THE COMPANY'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
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.
5.6 Benefit of Bargain
This Section 5 is the basis of the pricing to customer and is an integral part of bargain. This Section 5 shall survive termination of this Agreement.
5.7 Content
You are liable for any and all liability that may arise out of the content transmitted by or to you or users using the Service. You shall assure that your or user's use of the Service and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. The Company reserves the right to terminate or suspend affected Service, and/or remove your or users' content from the Service, if the Company determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with the Company's ability to provide Service to you or others or receives notice from anyone that your or users' use or content may violate any laws or regulations. The Company'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 the Company and its officers, directors, employees and agents harmless 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 Equipment provided to you.
6. OTHER TERMS
6.1 Entire Agreement
This Agreement as modified by the Company on its web site constitutes the entire agreement between you and the Company and govern your use of the Service, superseding any prior agreements between you and the Company 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 the Company unless and until posted in accordance with Section 3 hereof.
6.2 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.
6.3 Privacy
The Company Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. The Company is not liable for any lack of privacy which may be experienced with regard to the Service.
6.4 Acceptable Use
Use of the Service is subject to Company's Acceptable Use policies posted at www.call-smart.com/terms.html.