Terms and Conditions of Service

AmeriTalks®
TERMS AND CONDITIONS OF SERVICE
Effective Date: August 10, 2002

AmeriTalks® ("Company" or "AmeriTalks®") agrees to provide you ("Customer") with access to and use of its Voice-Over-IP telephony service ("Service"), defined below in Section 1, subject to your compliance with the terms of this agreement ("Agreement"). This Service is limited to telephone calls originated and terminating within the contiguous 48 United States depending upon the level of service to which you subscribe.

1. Definition of Service

1.1 The Service provided includes: access to the AmeriTalks® and/or other VOIP Networks across the US and/or other countries as determined from time to time.
1.2 AmeriTalks® reserves the sole right to determine the methods of access and the optimum routing for calls.
1.3 The Service will be made available on a best-efforts basis, but AmeriTalks® makes no guarantees or warranties, express or implied, as to the availability or quality of the Service itself or any specific feature of the Service.
1.4 AmeriTalks® is not responsible for long distance or other call charges that may be incurred while calling a local network access number. It is your sole responsibility to verify that calls made to local network access numbers are toll free by checking with your local phone company.

2. Activation Requirements

2.1 By accepting the terms of this Agreement, Customer represents that he/she is not a minor and is of legal age to sign a this binding contract for the Service. Minors who use the Service are assumed to have parental or guardian consent to do so.
2.2 You are an authorized signatory for the bank or credit card account listed from which payment for the monthly charge will be made.
2.3 You agree to provide AmeriTalks® with accurate and complete billing information, including but not limited to your legal name and surname, home address, and telephone number. Any changes to this information must be provided to AmeriTalks® within 30 days of the change in order to assure continuation of service.
2.4 By accepting this Agreement, you agree that you are responsible for all charges posted to your account until you cancel the account in accordance with the terms of Section 8.6 below or, if applicable, in accordance with the written agreement for service between you and AmeriTalks®.

3. Fees

3.1 Setup fees are nonrefundable.
3.2 AmeriTalks® does not issue pro rata refunds for any fees paid in advance.
3.3 Subject to the written agreement for service between AmeriTalks® and Customer, if applicable, current rates for the Service are available at the AmeriTalks® World Wide Web site at http://www.AmeriTalks.com. Current rates can also be obtained by sending postal mail to AmeriTalks® at the address listed below. Please note that rates are subject to change without notice.
3.4 Payment will be made 30 days in advance. You authorize the Company to bill your account each cycle seven days prior to the termination date of the then current billing cycle in preparation for the next cycle of service. If your account becomes delinquent, AmeriTalks® reserves the right to suspend or cancel your account at its sole discretion.
3.5 A service charge, up to the maximum allowed by the state in which you reside, will be assessed to your account if your check, bank draft or credit card is dishonored by your financial institution for insufficient funds or for any other reason. Should an electronic check be dishonored, not only will you be responsible for any fees as stated above, but you will also lose your ability to pay for your account via electronic check in the future and will then be responsible for payment on your account via a charge card. If you don't have a charge card it will be your responsibility to arrange another method of obtaining a valid and authorized charge card for payment on your account.
3.6 Interest charges (1% per month, or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance which is more than 30 days old.
3.7 You agree to pay all sales and use taxes, duties, or levies which are required by law as well as any and all attorney and collection fees and costs arising from efforts to collect any unpaid balance on your account.
3.8 There will be an additional fee of $6.50 per monthly transaction should you choose to use electronic checking (eCheck) as your method of payment.

4. Use of Service

4.1 Subject to the written agreement for service between AmeriTalks® and Customer, if applicable, you and any members of your household are the only individuals who are authorized to access the Service through your AmeriTalks® account. You are responsible for ensuring that all authorized users of your account comply with this Agreement. Also, you are responsible for maintaining the confidentiality of any passwords or access codes required for use of the Service by you or members of your household.
4.2 You are responsible for all charges assessed as a result of use of your account. However, AmeriTalks®will not hold you responsible for charges attributable to an unauthorized user's access to your account without your permission, provided that:
4.2.1 You notify AmeriTalks® within 24 hours of the discovery of any such unauthorized use;
4.2.2 The unauthorized use is not attributable to the failure of any authorized user to exercise reasonable caution to maintain the confidentiality of the password or access code for the account;
4.2.3 You cooperate fully with AmeriTalks® in investigating the unauthorized access of your account, including but not limited to: the immediate changing of any passwords or access codes for the account; a telephone interview with AmeriTalks® security personnel; a review of recent activity in your account; and/or the possibility of limited monitoring of your account for a reasonable period of time.
4.3 You will not use the Service or permit others to use the Service through your account in any way that: violates any of AmeriTalks® acceptable use policies; any local, state or federal law or regulations; subjects AmeriTalks®, its subsidiaries, clients, or customers to criminal or civil liability; or contravenes this Agreement.
4.4 AmeriTalks® has no obligation to monitor the Service but may do so and may disclose information regarding your use of the Service to: satisfy lawful governmental requests; operate, maintain or improve the Service; or protect AmeriTalks®, its subsidiaries, clients and customers against criminal and civil liability. Unless required by law, AmeriTalks® will NOT disclose customer information to outside persons or entities, unless the information can be disclosed in an aggregate, non-individually-identifying format.
4.5 Subject to this agreement for service between AmeriTalks® and Customer, if applicable, you may not sell or resell the Service, use mass communications equipment of any kind, including, but not limited to computers, with the Service, use the Service in conjunction with a call center, or use the Service for call back, call sell, or debit card services.
4.6 Subject to this agreement for service between AmeriTalks® and Customer, if applicable, the Service may be used for voice communications only, and may not be used for facsimile, broadcast facsimile, or data communications.
4.7 Sharing of accounts is prohibited and may be cause for termination of this agreement.
4.8 VoIP products may require that local access service be selected if available.

5. Limit of Liability

5.1 AmeriTalks® DOES IT'S BEST TO PROVIDE CONSISTENT QUALITY SERVICE. HOWEVER, IN NO EVENT, AND UNDER NO LEGAL THEORY, CONTRACT, TORT, OR OTHERWISE, SHALL AmeriTalks® OR ITS SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF PROFITS, WAGES OR BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALTERNATIVE CALLING METHODS SHOULD BE MAINTAINED AS A 'BACKUP' IF YOU ARE IN A CRITICAL NEED SITUATION WITH YOUR LONG DISTANCE COMMUNICATION NEEDS.

6. No Warranty

6.1 THE SERVICE IS OFFERED ON AN "AS-IS" BASIS. AmeriTalks® EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 SHOULD THE SERVICE PROVE DEFECTIVE, INSUFFICIENT OR INAPPROPRIATE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION NECESSARY TO DISCONTINUE THE USE OF THE SERVICE.

7. Indemnity and Right of Refusal

7.1 You agree to defend, indemnify and hold harmless AmeriTalks® from any and all liabilities, costs, and expenses, including without limitation attorneys' fees and costs, related to or arising from: any unauthorized use of the Service; any violation of this Agreement by you or those who access the Service through your account; and the use of the Service by you or by those who have access to your account in a manner contrary to any law or regulation or harmful in any way to AmeriTalks® or any of its subsidiaries or affiliates.
7.2 AmeriTalks® reserves the right to decline or refuse service to any potential customer for any reason, subject to applicable law. Further, AmeriTalks® reserves the right to terminate any account without cause subject to the provisions of this Agreement.

8. Term of Agreement

8.1 This Agreement is effective immediately upon your acceptance of its terms. Acceptance of terms is indicated by establishment of your account and/or use of the Service. Your continued use of the Service constitutes your ongoing and continuous acceptance of the Agreement.
8.2 AmeriTalks® MAY TERMINATE THIS AGREEMENT:
8.2.1 AT ANY TIME, WITHOUT CAUSE, UPON 30 DAYS NOTICE;
8.2.2 Immediately, if you, or any person who has access to your account, commits a material breach of this Agreement.
8.2.3 At end of cycle; AmeriTalks.com® reserves the right to decline service continuation at the end of the then current month of service for any reason with or without cause.
8.3 Upon termination of this Agreement all rights granted to you and your authorized users under this Agreement shall immediately cease and terminate.
8.4 Termination of this Agreement does not release you from the obligation to pay any and all accrued charges under this Agreement.
8.5 AmeriTalks® right to enforce certain provisions contained herein shall survive the termination of the Agreement.
8.6 TERMINATION OF THIS AGREEMENT BY YOU: You may terminate your account and this Agreement by the following methods, in which case you would be liable for accrued charges for Service provided until the effective date of the termination:
8.6.1 The AmeriTalks World Wide Web site at http://www.AmeriTalks.com;
8.6.2 US mail, return receipt requested, addressed to:
AmeriTalks®
29 Green Pine Lane., Suite 100
Webster, NY 14580
8.6.3 Email [email protected]
8.6.4 Faxing AmeriTalks® at 1-585-217-9112.
8.7 AmeriTalks® may terminate this agreement by the following methods:
8.7.1 Electronic mail (email) address to the email address associated with your account (if available);
8.7.2 US Mail or courier service to the address on file for your account.
8.7.3 Via a phone call to your registered phone number.
8.8 Contract term is month to month. Service may be canceled for the next month at any time during the current month of service up to seven days prior to the next billing date of service with service cancellation taking effect at the end of the then current billing cycle.

9. Miscellaneous

9.1 This Agreement shall be governed by the laws of the State of New York.
9.2 In the event any provisions of this Agreement are found to be in violation of local, state or federal law, you must still abide by the provisions of the Agreement that are not in violation of such law.
9.3 You explicitly consent and agree to the jurisdiction of the state courts having jurisdiction for Monroe County, State of New York with respect to all disputes arising out of this Agreement, your use of the Service, or otherwise, between you and AmeriTalks®.
9.4 Any cause of action you may have with respect to the Service must be commenced with one year after the claim or cause of action arises.
9.5 Any judicial proceeding affecting in any way the contract for services between you and AmeriTalks® or your use of the Services contracted, shall be brought and litigated solely in the state court system of the State of New York, if at all. In such event, you acknowledge the right of the specified court to assert jurisdiction in any such action over you, and you explicitly waive and release any defense to that assertion of jurisdiction.
9.6 Neither this agreement nor any of your rights or obligations arising hereunder shall be transferable by you to any third party without AmeriTalks® prior written consent.
9.7 AmeriTalks® reserves the right to alter, amend or modify this Agreement at any time.
9.8 Some high volume non residential call centers may not be available as part of our service footprint.