For Users Located Outside of the United States.
THIS AGREEMENT ("Agreement") is between AmeriMex Communications Corp. ("we," "us" or "AmeriMex VoIP") and the user ("you," "user" or "Customer") of AmeriMex VoIP's Residential or Small Business enhanced communications or telecommunications services and any related products or services ("Service"). Both the Service and any devices, such as an IP phone, Analog Telephone Adapter, or any other IP connection device ("Device" or "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. Also, by activating and/or using the Service, you agree that you are also bound by the terms of AmeriMex VoIP's applicable state and/or federal tariffs, rate schedules, and public disclosures, which are incorporated into this agreement by reference.
1. SERVICE
1.1 Term of Service is offered on a month-to-month basis. The initial term begins on the date that AmeriMex VoIP activates your Service and ends on the same day of the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give AmeriMex VoIP notice of non-renewal at least ten [10] days before the end of the monthly term in which the notice is given. If you terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term and any and all outstanding charges. Customer is responsible for, and shall pay, any applicable federal, state, 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 Customer's subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your account.
1.2.1 Residential Use of Service and Device. If you have subscribed to AmeriMex VoIP's Residential services, the Service and Device are provided to you and your household as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit making or non-profit. If you fail to comply with these limitations, AmeriMex VoIP reserves the right to immediately terminate or modify the Service, if AmeriMex VoIP determines, in its sole discretion and in accordance with applicable law and/or the rules and regulations of appropriate state and federal regulatory bodies, that Customer's Service is being used for non-residential or commercial use.
1.2.2 Business Use of Service and Device - If you have subscribed to AmeriMex VoIP's Business services, the Service and Device are provided to you as a business user. You agree that the AmeriMex VoIP Business Plans are for ordinary and usual office voice communications and do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting, fax blasting, or any type of automated or continuous use. AmeriMex VoIP reserves the right to immediately terminate or modify the Service, if AmeriMex VoIP determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities, in accordance with applicable law regarding such terminations.
1.3 Lawful Use of Service and Device
1.3.1 Prohibited Uses: You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in AmeriMex VoIP's sole judgment the transmission, receipt or possession of such communication would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. AmeriMex VoIP reserves the right to terminate your service immediately and without advance notice if AmeriMex VoIP, in its sole discretion, believes that you have violated the above restrictions, or any Applicable Tariff term, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, all of which immediately become due and payable, as may be permitted under Applicable Law. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless AmeriMex VoIP against any and all liability for any such use that fails to comply with this Section 1.3.1. If AmeriMex VoIP, in its sole discretion believes that you have violated the above restrictions, AmeriMex VoIP may forward the objectionable material, as well as your communications with AmeriMex VoIP and your personally identifiable information to the appropriate authorities for investigation and prosecution.
1.4 Loss of Service Due to Power Failure: You acknowledge and understand that the Service does not function in the event of power failure. Should there be an interruption in the power supply to your Device or at any point in your transmission path, the Service will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment including your Device or any connecting equipment in your transmission path prior to utilizing the Service.
1.5 Theft of Service: You agree to notify AmeriMex VoIP immediately, by calling the AmeriMex VoIP customer service line, if the Device or Service is stolen or if you suspect or become aware at any time that your Service is being stolen or fraudulently used. You will be liable for all use of the Service using a Device or Access Code stolen from you and any and all stolen Service or fraudulent use of the Service until AmeriMex VoIP is informed of the theft.
1.6 Delivery or Warranty of Device; Ownership of the Device: If Customer receives cartons and/or Devices that are visibly damaged, please note the damage on the carrier's freight bill or receipt and keep a copy. Keep the original carton, all packing materials and parts intact and contact AmeriMex VoIP's customer care department immediately.
2. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
2.1 Limitation of Liability: AmeriMex VoIP shall not be liable for any delay or failure to provide the Service, 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; or 8.) any other cause that is beyond AmeriMex VoIP's control, including without limitation the failure of an incoming or outgoing communications, the inability of communications to be connected or completed, or degradation of voice quality. AmeriMex VoIP's liability for any failure or mistake shall in no event exceed Service charges with respect to the affected time period.
2.2 No Consequential Damages: In no event shall AmeriMex VoIP, 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 incidental, indirect, special, punitive, exemplary or consequential damages, or for any damages, including but not limited to loss of data, loss of revenue or profits, or arising out of or in connection with the use or inability to use the Service, 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, products liability, tort and any and all other theories of liability and apply whether or not AmeriMex VoIP was informed of the likelihood of any particular type of damages.
2.3 Indemnification: Customer agrees to defend, indemnify, and hold harmless AmeriMex VoIP, 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, or the Device. This paragraph shall survive termination of this Agreement.
2.4 No Warranties on Service: AmeriMex VoIP makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability or fitness of the Service or the Device for a particular purpose. AmeriMex VoIP does not warrant that the Service will be without Service failure, delay, interruption, error, and degradation of voice quality or loss of content, data or information. Neither AmeriMex VoIP 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 AmeriMex VoIP'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 AmeriMex VoIP's or its service provider's or vendors' negligence. Statements and descriptions concerning the Service or Device, if any, by AmeriMex VoIP or AmeriMex VoIP's agents or installers are informational and are not given as a warranty of any kind.
2.5 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.
2.6 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 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. AmeriMex VoIP reserves the right to terminate or suspend affected Services, and/or remove Your or Users' content from the Services, if AmeriMex VoIP determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with AmeriMex VoIP'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. AmeriMex VoIP'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 AmeriMex VoIP 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.
3. SERVICE OUTAGE:
3.1 Power Outage: You acknowledge and understand the Service as a whole, does not function in the event of a power failure. Should there be an interruption in the power supply, the Service will not function until power is restored.
3.2 Broadband Service Outage: You acknowledge and understand that service outages or interruptions by your broadband provider will prevent ALL Service. Even a brief interruption in your broadband Internet connection may cause the Service to fail until Customer resets or reconfigures equipment, connections or logins.
3.3 Service Outage Due to Suspension of Your Account: You acknowledge and understand that service outages due to suspension of your account as a result of billing issues will prevent ALL Service,
3.4 Other Service Outages: You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
3.5 Limitation of Liability and Indemnification: You acknowledge and understand that the Company's liability is limited for any Service outage from your line or to access emergency service personnel, as set forth in this document, and applicable Tariffs. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AMERIMEX VOIP, 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 OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
4. PRIVACY
AmeriMex VoIP Service may utilize, in whole or in part, the public Internet and third party networks to transmit voice and other communications. AmeriMex VoIP is not liable for any lack of privacy that may be experienced with regard to the Service.
5. CHANGES and NOTICES
Customer agrees to accept notices to this agreement electronically, either by email or by web site posting. Notices to Customer of any changes to these "Terms of Service" shall be considered given by posting to the AmeriMex VoIP Services Web Site. Notice will be considered received by Customer, and such changes will become binding on Customer, on the date posted to the AmeriMex VoIP Web Site and no further notice by AmeriMex VoIP is required.
6. ENTIRE AGREEMENT
This Agreement, the accompanying work order, any Terms of Services or other rules now or hereafter specified by AmeriMex VoIP for the Service, public disclosures and/or any applicable tariff(s) on file with the applicable state utility commission or FCC shall constitute the entire agreement between AmeriMex VoIP and Customer with respect to the subject matter hereof, and supersedes all previous written agreements between AmeriMex VoIP and Customer with respect to the services provided hereunder. Acceptance of the Service shall constitute acceptance of the terms and conditions herein.
Version: June 2007
