SERVICE

1. Term

TUFONE service is offered on a monthly basis for a term which begins on the date that TUFONE activates your Service and ends on the day before the same date in the following month. The Agreement is automatically renewed on a monthly basis unless you give TUFONE written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms. 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 current month, including but not limited to unbilled charges, disconnect fee. This fess shall immediately become due and payable. The Customer is responsible to pay all unpaid, accrued charges due in relation to this Agreement.

2. Residential Use of TUFONE Service and Device

If you have subscribed to TUFONE's Residential services, the Service and Device are for your personal, residential, non-business and non-professional use. You agree that you are not using them for any other activity that would be inconsistent with personal and residential usage such as commercial or governmental activities, profit-making or non-profit. This includes home office, business, sales, tele-commuting, autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (charitable or political solicitation or polling ). You may not resell or transfer the Service or Equipment to any other person for any purpose, without express written permission from TUFONE in advance. You agree that if your use of the Service and/or Device, or the use of the Service and/or Device provided to you is determined by TUFONE to for commercial or governmental purpose, you will obligate you to pay TUFONE's higher rates for commercial service for any month, including past months, in which you use, or used, the Service for commercial or governmental purposes. TUFONE reserves the right to terminate, without further notice or modify the Service, if TUFONE determines, in its sole discretion, that Customer’s Residential Service is being used for non-residential or commercial use.

3. Small Business Use of TUFONE Service and Device

If you have subscribed to TUFONE's Small Business services, the Service and Device are provided to you as a small business user. Unless you obtain express written permission from TUFONE in advance, you are not permitted to resell or transfer the service or device to any other person for any purpose. Customer is responsible for supplying the standard SIP based Customer Premise Equipment (CPE) (“device”) for use with the service. Business Plus customers are solely responsible for providing, operating and supporting the device they use in conjunction with TUFONE’s service. TUFONE reserves the right to immediately terminate or modify the Service, if TUFONE determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned business activities.

3.1. Small Business Limitations

You further agree that the TUFONE Small Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. TUFONE reserves the right to immediately terminate or modify the Service, if TUFONE determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.

4. 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 TUFONE's sole judgment the transmission, receipt or possession of such communication or material (i) would 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. TUFONE reserves the right to terminate your service immediately and without advance notice if TUFONE, in its sole discretion, believes that you have violated the above restrictions. If TUFONE, in its sole discretion believes that you have violated the above restrictions, TUFONE may forward the objectionable material, as well as your communications with TUFONE and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.

5. Use of Service and Device by Customers Outside the United States

While we encourage use of the Service within the United States to other countries, TUFONE does not presently offer or support the Service to customers located in other countries except Brazil, Portugal and Dominican Republic. If you remove the Device to a country other than those mentioned above and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless TUFONE against any and all liability for any such use. Should the removal from the United States violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless TUFONE against any and all liability for such violation. TUFONE reserves the right to terminate your Service immediately and without advance notice if it determines that you are using it outside the United States, Brazil, Portugal or Dominican Republic.

6. Loss of Service Due to Power Failure or Internet Service Outage

You understand that the Service does not function without power. Should there be an interruption in the power supply; the Service will not function unless power is restored. A power failure or disruption may require you to reset or reconfigure equipment before using the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including the Emergency Calling Service calling feature. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which is not provided by TUFONE) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or TUFONE terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 911 calling feature. Should TUFONE suspend or terminate your Service, the Service will not function until such time as TUFONE restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).

7. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software

The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on TUFONE'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 TUFONE are and shall remain the exclusive property of TUFONE 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 Device, 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 Device is exclusively for use in connection with the Service and that TUFONE will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by TUFONE, which TUFONE 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 interface device with the Service and you will indemnify and hold harmless TUFONE against any and all liability arising out of your use of such interface device 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.

8 . Number Transfer on Service Termination

TUFONE may, solely at TUFONE's discretion, release the telephone number that was ported in to TUFONE by you and used in connection with your Service provisioned by TUFONE to your new service provider, if such new service provider is able to accept such number, upon your termination of the Service, and provided (i) your TUFONE account is completely current including payment for all charges and applicable disconnect fees; and (ii) your account has been terminated; and (iii) you request the transfer upon terminating your account. Customer will not be able to port away the telephone number if Customer cancels within thirty days of the Activation Date.

9. Understanding of the Service Provided

You acknowledge and understand that the Tufone Service is not a telephone service. Important distinctions exist between telephone service and the enhanced Service offering provided by TUFONE. The Tufone Service is subject to different regulatory treatment than phone service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

10. Collect Call and Operator Services

TUFONE does not offer collect call or operator services via this Service.

11. International DIDs or phone numbers

Customers that have international (non-United States) direct inward dial phone numbers ("DIDs") are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without any notice and TUFONE may be required to discontinue this service, without notice. TUFONE reserves the right to discontinue International DID services at any time for any reason and is only obligated to refund the pro-rated monthly fee.

12. International Services

1. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the international service or facilities they provide, limitations or restrictions that may restrict your ability use the TUFONE services. You must comply to any limitations or restrictions imposed by the foreign carriers or agencies.

2. Foreign Carrier Acts or Omissions.

 

a. When other U.S. or foreign carriers and foreign telecommunications administrations use facilities to establish connections to points not reached by TUFONE's network, TUFONE is not liable for acts or omissions of other carriers or foreign telecommunications administrations.
b. International calls are priced on the basis of the country and city codes dialed by you. When the facilities of other U.S. or foreign carriers are used in establishing connections to points not reached by TUFONE's network, TUFONE is not liable for refunds or damages if those calls do not terminate in the country, city or area codes associated with the called number.

13. Surcharges

In addition to surcharges which may be found in the applicable Calling Plan, TUFONE may adjust its rates and charges or impose additional rates and charges in order to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs ("Governmental Charges").

14. Taxes

a. All taxes, tax-like charges, and tax-related surcharges are referred to collectively as "Tax(es)." TUFONE may elect to impose and collect such Taxes, unless otherwise constrained by court order or direction.

b. If you provide TUFONE with a duly authorized tax exemption certificate, TUFONE will exempt you in accordance with law, effective on the date TUFONE receives the certificate.

c. You agree to pay all Taxes imposed. If TUFONE has collected Taxes and a challenged Tax is found to have been invalid and unenforceable, TUFONE, in its sole discretion, will either reduce service rates for a fixed period of time in the future in order to pass over to customers an amount equivalent to the amounts collected, or it will credit or refund such amounts to affected customers (less administrative costs), if the amounts collected were retained by TUFONE or if they were delivered to the jurisdiction and returned to TUFONE, or it will negotiate an arrangement with the jurisdiction to provide a future benefit for customers in that jurisdiction.

d. If you are required by the laws of any foreign tax jurisdiction to withhold income or profit taxes from a payment, within 90 days of the withholding, you will provide TUFONE with official tax certificates documenting remittance of the taxes. The tax certificates will be in a form sufficient to document qualification of the taxes for the foreign tax credit allowable against TUFONE's U.S. corporate income tax, and will be accompanied by an English translation. Upon receipt of the tax certificate, TUFONE will issue you a credit for the amounts represented thereby.

13. Tampering with the Device or Service

You agree not to tamper with the Device or Service. This includes changing the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device, without express permission from TUFONE. TUFONE reserves the right to terminate your Service should you tamper with the Device. If this happens, you will remain responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, 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.

14. Theft of Service

You agree to notify TUFONE immediately, in writing or by calling the TUFONE 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 TUFONE 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.

15. Return of Device

The Device may be returned to TUFONE within fourteen (21) days of the termination of Service to receive a credit for the $39 disconnect fee provided: (i) you have retained, and return along with the Device, proof of purchase and original packaging; (ii) contents are undamaged and in original condition, reasonable wear and tear excluded; (iii) all parts, accessories, documentation and packaging materials are returned; and (iv) equipment is returned with a valid return authorization number obtained from TUFONE’s customer care department. You are responsible for the cost and risk of return shipping of equipment. To obtain a return authorization number, you must contact billing@tufone.com.

16. Ownership and Risk of Loss

You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you and has been received by TUFONE.

17. No 0+ Calling; May Not Support x11 Calling

TUFONE’s Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling). TUFONE’s Service may not support 311, 511 and/or other x11 (other than 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

18. EMERGENCY SERVICES- 911 DIALING – Non Availability

TUFONE does NOT support traditional 911 or E911 access to emergency services. TUFONE offer a limited 911-type service available only on TUFONE Devices as described herein, but you understand that 911-type dialing is NOT automatic. You must take affirmative steps, as described in this Agreement and on TUFONE’s website, to activate such 911-type dialing capabilities. TUFONE’S 911-type dialing is different in a number of important ways (some, but not necessarily all, of which are described in this Agreement) from traditional 911 service. TUFONE 911 dialing cannot be used in conjunction with a TUFONE Soft Phone application and is only available on TUFONE-certified Devices or Equipment. You agree to be responsible to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your TUFONE Service and Device(s). If you activate TUFONE 911-type dialing service, you agree to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service as to the important differences and limitations of TUFONE 911 dialing service as compared with traditional 911 or E911 dialing that are set forth in this Agreement.

19. Description of 911-Type Dialing Capabilities - Activation Required

TUFONE does offer a 911-type dialing service only in the U.S. TUFONE’S 911 service is different in a number of important ways from traditional 911 service. You understand that 911-type dialing is NOT automatic. You must first activate the 911 dialing feature by following the instructions from the "Dial 911" link on your dashboard. You understand that you cannot dial 911 from this line unless and until you have received a confirming email from TUFONE. Once you have received a confirming email that 911 dialing has been successfully activated, you may dial 911 as needed.

When you dial 911, your call is routed from the TUFONE network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. You acknowledge and understand that when you dial 911 from your TUFONE equipment it is intended that you will be routed to the general telephone number for the PSAP or local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. TUFONE relies on third parties for the forwarding of information underlying such routing, and accordingly TUFONE and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. As described herein, this 911-type dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing. Neither TUFONE 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 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 TUFONE. You agree to indemnify and hold harmless TUFONE and its third party provider from any claim or action arising out of misroutes of 911 calls, including but not limited to your failure to follow correct activation procedures for 911 calling or your provision to TUFONE of incorrect information in connection therewith.

20. 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, including 911dialing.

21. Other Service Outages

You acknowledge and understand that 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.

22. Limitation of Liability and Indemnification

You acknowledge and understand that TUFONE'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 document. You agree to defend, indemnify, and hold harmless TUFONE, 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 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 Customer's Service to be able to dial 911 or to access emergency service personnel.

23. Failure to Designate the Correct Physical Address When Activating 911 Dialing

Failure to provide the current and correct physical address and location of your TUFONE equipment by following the instructions from the "Dial 911" link on your dashboard will result in any 911 communication you may make being routed to the incorrect local emergency service provider. This must be the actual physical street address where you are located, not a post office box, mail drop or similar address.

24. If You Change Your Number or Add, Port New Numbers Move or Change Location You Are Required to Re-Activate 911

Understand clearly that 911 dialing does not function if you change your phone number or (for such newly added or ported numbers) if you add or port new numbers to your account. Unless and until you have successfully activated the 911 dialing feature for your changed, newly added or newly ported number by following the instructions from the "Dial 911" link on your dashboard, and until such later date that such activation has been confirmed to you through a confirming email 911 will not be operational. Although you may have activated 911 dialing with your former TUFONE phone number, you must separately activate 911 dialing for any changed or newly added or ported number.

You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your TUFONE Device to a different street address, unless and until you have successfully activated the 911 dialing feature following the instructions from the "Dial 911" link on your dashboard, and until such later date that such activation has been confirmed to you through a confirming email. 911 dialing must be re-activated although you may have activated 911 dialing using your former address, and you must separately activate 911 dialing for any new physical address. Failure to provide the current and correct physical address and location of your TUFONE equipment will result in any 911 dialing you may make being routed to the incorrect local emergency service provider

25. Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911

Due to the technical constraints on the manner in which it is possible to provide the 911 dialing feature for TUFONE Service at this time, you acknowledge and understand that there is a greater possibility of network congestion and/or reduced speed in the routing of a 911 communication made utilizing your TUFONE equipment as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that 911 dialing from your TUFONE equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider's facilities when such calls are routed using traditional 911 dialing. You acknowledge and accept that TUFONE relies on third parties for the forwarding of information underlying such routing, and accordingly TUFONE and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. TUFONE or its officers or employees, may not 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 TUFONE.

You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.

It is not possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911 to access Emergency Calling Service dialing. TUFONE's system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they are not yet always technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.

26. Alternative 911 Arrangements

You acknowledge and understand that TUFONE does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional E911 services.

27. CHANGES TO THIS AGREEMENT

TUFONE reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (a "Change of Service"). In the event of a Change of Service, TUFONE will post to the Web Site currently located at http://www.tufone.com/about/service_terms.asp.
Notice will be considered received by End Users and such changes will become binding to End Users, on the date the changes are posted to the Web Site ("Change Date"), and no additional notice will be required. If End User does not send TUFONE notification of their desire to terminate this agreement or uses the Service after the Change Date, End User is deemed to have accepted and consented to the change of terms and conditions of the Service. If End User does not consent to the change of service and terminates this agreement, End User will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. End User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.

28. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION

A. Billing. You must provide TUFONE with a valid credit card number when the Service is activated. If the credit card expires, you close your credit card account or your billing address changes, or the credit card is cancelled and replaced because of loss or theft, you must advise TUFONE immediately. TUFONE will invoice all charges on a monthly basis, in advance, to your credit card, including but not limited to: activation fees and monthly Service fees, advanced feature charges, equipment purchases and shipping and handling charges. Any charges not included in your rate plan and any additional usage charges are billed after each billing period. If TUFONE changes its rates, recurring monthly charges affected by such change will be assessed at the new rate for the full billing period during which the new recurring charge rate became effective.

B. TUFONE will invoice Customer for Services on a monthly basis in advance and all payments are due and payable by Customer without demand or setoff within thirty (30) days from the invoice date (the "Due Date"). Amounts not paid within twenty-nine (29) days of the invoice date will be considered past due. If you make any late payments, and we bill you for the Services, we will charge you a late fee of 1.5%, which we apply to that period's charges and any outstanding charges and late payment charges that remain unpaid at the time of the next bill. If the state law where you receive the TUFONE services requires a different rate, we will apply that rate.

C. Billing Disputes

You must notify TUFONE in writing within 14 days after receiving your credit card statement if you dispute any TUFONE charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:

Customer Care Billing Department
TUFONE, inc.
73 Ferry Street - Lower Level
Newark, NJ 07105
or
billing@TUFONE.com
or
1-877-883-6631

D. CANCELLATION/TERMINATION/ DISCONTINUANCE OF SERVICE

 

By the Customer
1. If you cancel your Service after the 14 day Money Back Guarantee period, you will be charged a Disconnect fee of $39.
2. If you cancel your Service with TUFONE, you will not be able to use the Device or Equipment.
3. Cancellation may take up to three business days.
4. Your credit card will be charged for any usage after contacting TUFONE to cancel your Service.

By TUFONE
1. TUFONE reserves the right to discontinue furnishing services, cancel your account, and/or block your access to TUFONE network, without incurring any liability, immediately and without notice if TUFONE deems that such action is necessary to prevent or to protect against fraud or to otherwise protect TUFONE's personnel, agents, facilities, or services. Without limitation, TUFONE may take such actions if you:

 

a. Refuse to furnish information or furnish false information that (i) is essential for billing; or (ii) pertains to your creditworthiness, your past or current use of common carrier communications service, or your planned use of such service;
b. Indicate that you will not comply with a request for security for the payment for services;
c. Service usage charges exceed established parameters based on your history of usage, which may indicate a likelihood of non-payment or possible fraud, or incorrect customer category;
d. You failed to pay any past due amount which remains unpaid, in whole or in part for any of TUFONE's or an affiliated carrier's service to which you either subscribe or had subscribed or used;
e. You either refuse to pay when billed for service or indicate to TUFONE or an entity billing on TUFONE's behalf that you do not intend to pay for service used by you;
f. You use, any scheme to circumvent paying for TUFONE service with .
h. Your telephone equipment fails to pass back to TUFONE the appropriate signal to start and stop billing for a call;
i. You were previously notified of breach of contract, and failed to remedy; or
j. You act in a manner that is threatening, harassing or obscene to TUFONE personnel.

2. TUFONE reserves the right to discontinue furnishing services, cancel your account, and/or block your access to TUFONE network, without incurring any liability, immediately upon written notice to you if:

 

a. Any invoice charges remain outstanding and owed by you after the 30th day from the date of the invoice notifying you of the charges; or
b. You fail to comply with a request by TUFONE for security for the payment for services.

3. The discontinuance of service(s) by TUFONE pursuant to these provisions does not relieve you of any obligation to pay TUFONE for charges due and owing for service(s) furnished up to the time of discontinuance. TUFONE may charge you a Disconnect fee if your service is canceled.

29. 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 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 credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide TUFONE with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date TUFONE receives such certificate.

30. Disconnect Fee

Customer will be charged a disconnect fee of $39 per voice line upon termination of Service for any reason or for convenience by Customer. The disconnect fee becomes due and payable immediately upon termination and will billed directly to Customer's credit card. If Customer has multiple lines, Customer will be charged a disconnect fee of $39 per line for each line disconnected. To receive a credit for the disconnect fee, Customer must return the Device(s) undamaged and in original condition within fourteen (14) days of termination. TUFONE will not credit Customer if the Device(s) is damaged or not in its original condition as received by the Customer.

31. Money Back Guarantee; Limitations and Conditions

TUFONE offer a 30-day Money Back Guarantee applicable only to User’s first-ordered line per account, not to additional or secondary lines. Under terms of this Money Back Guarantee, TUFONE refunds the activation fee, first month of service, and shipping charges and waives the disconnect fee, provided the terms described below are satisfied. Federal excise taxes and any other applicable taxes cannot be refunded. TUFONE reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.

In order to be entitled to this Money Back Guarantee, User (i) must cancel service within 30 days after the account activation; (ii) must return all Devices within 14 days after cancellation; and (iii) must not have exceeded 200 minutes of usage. User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User subscribes, international usage THIS MONEY BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS EXCEEDING 200 MINUTES OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED HEREIN.
In addition all returned Devices must be in the original packaging with the UPC or bar code intact. All components, manuals and registration card(s) must be included. Equipment must be returned with a valid return authorization number obtained from TUFONE customer care. User is responsible for the cost and risk of return shipping of equipment. THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS.

To obtain a return authorization number, User must contact billing@tufone.com or 1-877-883-6631.

32. Business Plus Money Back Guarantee

TUFONE offers Business Plus subscribers a 30 day Money Back Guarantee from date of activation of service (such 30 day period, the "Warranty Period"), applicable only to User’s first-ordered service package, not to additional or secondary orders. Under terms of this Money Back Guarantee, TUFONE refunds the activation fee and first month of service, provided the terms described below are satisfied. Federal excise taxes and any other applicable taxes cannot be refunded. TUFONE reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.

In order to be entitled to this Money Back Guarantee, User (i) must cancel service within the 30 day Warranty Period after the account activation; (ii) must not have exceeded 1,000 minutes of usage. User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User subscribe.

33. Charges for Directory Calls

TUFONE will charge 99 cents for each call made to TUFONE directory assistance.

34. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION

A. TUFONE will not be liable for: (i) any failure of performance due to causes beyond its control, including, but not limited to, acts of God, fires, floods or other catastrophes; national emergencies, insurrections, riots or wars, acts of terrorism, strikes, lockouts, work stoppages or other labor difficulties; and any law, order, regulation or other action of any governing authority or agency thereof; or (ii) delayed installation of TUFONE's facilities or commencement of service.

B. With respect to any other factual allegation, legal claim, or dispute by you or by any others, for damages associated with the ordering (including the reservation of any specific number for use with a service), installation (including delays thereof), provision, termination, maintenance, repair, interruption, or restoration of any service or facilities offered by TUFONE, TUFONE's liability, if any, will be limited as follows:

 

1. With respect to the routing of calls by TUFONE to public safety answering points or municipal emergency service providers, TUFONE's liability, if any, will be limited to the lesser of: (a) the actual monetary damages incurred and proved by you as the direct result of TUFONE's action, or failure to act, in routing the call, or (b) the sum of $1,200.00.
2. With respect to the provisioning of, or any error or omission in, data, information, or content furnished in connection with any service provided by TUFONE, for example, Directory Assistance, TUFONE's liability will be limited to the lesser of: (a) the amount of actual money damages proven by you to have been incurred as the proximate result of your reliance on such data, information, or content; or (b) $50.00.
3. TUFONE shall not be liable for any delays or incompletion or costs or charges pursuant to a delay or incompletion in local number portability (LNP).

C. IN NO EVENT WILL TUFONE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS (WHETHER OR NOT TUFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES) BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.

D. TUFONE will be indemnified, defended, and held harmless by you against all claims of loss or damage arising from the use of service furnished by TUFONE, including:

 

1. Allegations or claims for libel, slander, invasion of privacy, or infringement of copyright arising out of the material, data, information, or other content transmitted via TUFONE service; and
2. All other allegations and claims arising out of any intentional act or omission by you or others authorized by you to use the service, in connection with any service provided by TUFONE.

E. TUFONE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ABOUT ITS SERVICES AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NONINFRINGEMENT.
TUFONE DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON TUFONE'S BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY TUFONE.

F. TUFONE will not be liable for any act or omission of any other company or companies furnishing a portion of the service, or from any act or omission of a third party, including those vendors participating in TUFONE offerings made to you, or for damages associated with service, or equipment that it does not furnish, or for damages that result from the operation of customer provided systems, equipment, facilities or services that are interconnected with TUFONE services.

35. 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.

36. 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. TUFONE reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if TUFONE determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with TUFONE'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. TUFONE'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 TUFONE 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.

37. GOVERNING LAW / RESOLUTION OF DISPUTES

Mandatory Arbitration. Any dispute or claim between End User and TUFONE arising out of or relating to the Service or 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 arbitration shall take place in New York, New York 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.

38. Governing Law

The Agreement and the relationship between you and TUFONE shall be governed by the laws of the State of New Jersey without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason, End User and TUFONE agree to submit to the personal and exclusive jurisdiction of the courts within the state of New Jersey, to the extent possible in Essex County, and waive any objection as to venue or inconvenient forum. The failure of TUFONE to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. End User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

39. Entire Agreement

The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of TUFONE and End User.

40. 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.

41. PRIVACY

TUFONE Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. TUFONE is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy applicable to you at www.tufone.com for additional information.

42. No Obligation to Assist in Switching Carriers.

If you either voluntarily cancel your TUFONE account or if TUFONE cancels your service for any reason set forth above, TUFONE will have no obligation whatsoever to assist you in any respect in switching from TUFONE to another carrier.

43. SOFTWARE COPYRIGHT.

Any software used by TUFONE to provide the Services and any software provided to End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it.

Last update: 11/09/2005