Terms of Service

These Terms and Conditions for use constitute the agreement (“Agreement”) between Unitel, Inc. (“we,” “us” or “CallDirek®”) and the user (“you,” “user” or “Customer”) of enhanced Residential communications services or enhanced Small Business communications services and any related products or services (“Service”). This Agreement governs both the Service and any devices, such as an IP phone, CallDirek® Terminal Adapter, 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.

1. SERVICE
1.1 Term

Service is offered on a monthly basis for a term that begins on the date that CallDirek® 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 CallDirek® 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, meaning that if you attempt to 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, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.

1.1.1 Residential Use of Service and Device

You have subscribed to CallDirek®'s Residential services and the Service and Device are provided to you 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, including but not limited to home office, business, sales, tele-commuting, tele-marketing (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 also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from CallDirek® in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay CallDirek®'s higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. CallDirek® reserves the right to immediately terminate or modify the Service, if CallDirek® determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
 

1.1 Lawful Use of Service and Device
1.1.1 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 CallDirek®'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. CallDirek® reserves the right to terminate your service immediately and without advance notice if CallDirek®, in its sole discretion, believes that you have violated the above restrictions, 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 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 CallDirek® against any and all liability for any such use that fails to comply with this Section 1.3.1. If CallDirek®, in its sole discretion believes that you have violated the above restrictions, CallDirek® may forward the objectionable material, as well as your communications with CallDirek® and your personally identifiable information to the appropriate authorities for investigation and prosecution.
 

1.1.1 Use of Service and Device by Customers Outside the United States:

While we encourage use of the Service within and outside the United States you do so at your own risk, including the risk that such activity violates local laws in the country where you do so. 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 CallDirek® against any and all liability for any such use. In addition, the terms of service and any service plan may exclude calls to cellular phones in non-US jurisdictions.

1.1 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by CallDirek®

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, the Service will not function until power is restored. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which is not provided by CallDirek®) 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 CallDirek® 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. Should CallDirek® suspend or terminate your Service, the Service will not function until such time as CallDirek® 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).

1.1 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 Customer in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on CallDirek®'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 CallDirek® are and shall remain the exclusive property of CallDirek® and nothing in this Agreement shall grant you the right or license to use such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If you decide to use the Service through an interface device not provided by CallDirek®, which CallDirek® 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 CallDirek® 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.

1.1 Tampering with the Device or Service

You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from CallDirek® in each instance. CallDirek® reserves the right to terminate your Service should you tamper with the Device, 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.

1.1 Theft of Service

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

1.1 Return of Device

The Device may be returned to CallDirek® within fourteen (14) days of the termination of service to receive a credit for the $49.95 disconnect fee (refer to section 4.6 of this document regarding termination fees), 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 CallDirek®'s customer care department. You are responsible for the cost and risk of return shipping of equipment. 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 CallDirek®'s customer care department immediately. Warranty coverage varies depending on the type of Device that Customer chooses. Please refer to the CallDirek® warranty materials included in the packaging of your Device(s).

1.8 Number Transfer on Service Termination

Upon termination of services CallDirek® may, in its sole discretion, release the telephone number that was ported in to CallDirek® by you and used in connection with your Service provisioned by CallDirek® 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 account has been terminated; (ii) your CallDirek® account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account.

1.9 Service Distinctions

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

1.10 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 pursuant to Section 1.7 and has been received by CallDirek®.

1. EMERGENCY SERVICES- 911 DIALING
1.1 Non-Availability of 911 or E911 Dialing Service:

You acknowledge and understand that the Service does NOT support 911 or E911 access to emergency services.

1.1 Service Outage:

1.1.1 Power Outage

You acknowledge and understand that dialing 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. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service.

1.1.2 Broadband Service Outage

You acknowledge and understand that service outages by your broadband provider will prevent ALL Service.

1.1.3 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.

1.1.4 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.

1.1.5 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 document. You agree to defend, indemnify, and hold harmless CallDirek®, 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.

1. CHANGES TO THIS AGREEMENT

CallDirek® 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 CallDirek®'s website (currently located at http://www.CallDirek®.com. The Agreement as posted supercedes all previously agreed to electronic and written Terms of Service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device.

2. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION

2.1 Billing

You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by CallDirek®) when the Service is activated. CallDirek® reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account or your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise CallDirek® at once. We 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 CallDirek® decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases and shipping and handling charges. CallDirek® reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50. 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 CallDirek®'s website.

2.2 Billing Disputes

You must notify CallDirek® in writing within 7 days after receiving your credit card statement if you dispute any CallDirek® charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the address or 800 number listed on our website [www.CallDirek®.com]

2.3 Payment

CallDirek® only accepts payments by credit card. Your initial use of the Service authorizes CallDirek® to charge the credit card account number on file with CallDirek®, including any changed information given CallDirek® if the card expires or is replaced, for CallDirek® charges that accrue during the billing cycle. This authorization will remain valid until 30 days after CallDirek® receives your written notice terminating CallDirek®'s authority to charge your credit card. CallDirek® may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with CallDirek® is declined or reversed or in case of any other non-payment of account charges. Termination of Service for declined card, reversed charges or non-payment leaves you FULLY LIABLE to CallDirek® for ALL CHARGES ACCRUED BEFORE TERMINATION and for charges incurred by CallDirek® owing to your non-payment, such as (but not limited to) collection costs and attorney's fees.

2.4 Termination/Discontinuance of Service

CallDirek® reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If CallDirek® discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. 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 Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service), 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 4.6, all of which immediately become due and payable.

2.5 Taxes

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. If Customer is exempt from payment of such taxes, it will provide CallDirek® with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date CallDirek® receives the Tax Exempt Document.
2.6 Disconnect Fee

Customer will be charged a disconnect fee of $49.95 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 $49.95 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. CallDirek® will not credit Customer if the Device(s) is damaged or not in its original condition as received by the Customer or if Customer has otherwise failed to comply fully with the requirements of Section 1.7. In the event Customer disconnects multiple lines, CallDirek® will issue Customer a credit for all disconnect fees upon receipt of all Devices (e.g., Terminal Adapters, etc.) in accordance with this Section.

2.7 Money Back Guarantee

CallDirek® offers a 30-day money back guarantee, applicable to one primary line per account, not additional or secondary lines. Under terms of the Money-Back Guarantee, CallDirek® refunds the activation fee, first month of service, shipping charges and waives the disconnect fee. CallDirek® reserves the right to terminate or revoke the 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 of the account activation; (ii) must return equipment within 14 days; and (iii) must not have exceeded 500 minutes of usage within the first 30 days of service. User remains responsible for any charges for overage, international traffic or directory assistance. Accounts exceeding 500 minutes of usage are not eligible for refund.

All returned equipment 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 CallDirek® Customer Care. User is responsible for return shipping of equipment. The money back guarantee will not be honored if user fails to meet all above requirements.

To obtain a return authorization number, user must contact us at the address or 1-800 number listed on our website [www.CallDirek®.com]

3. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION

3.1 Limitation of Liability

CallDirek® 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 ISP or broadband
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond CallDirek®'s control, including without limitation a failure of or defect in any device, the failure of an incoming or outgoing communications, the inability of communications to be connected or completed, including 911 dialing, or degradation of voice quality.
CallDirek®'s aggregate liability for (i) any failure or mistake; (ii) any claim with respect to CallDirek®'s performance or nonperformance hereunder or (iii) any CallDirek® act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
3.2 No Consequential Damages

In no event shall CallDirek®, 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, 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, products liability, tort and any and all other theories of liability and apply whether or not CallDirek® was informed of the likelihood of any particular type of damages.

3.3 Indemnification

Customer agrees to defend, indemnify, and hold harmless CallDirek®, 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, including 911 dialing, or the Device. This paragraph shall survive termination of this Agreement.
3.4 No Warranties on Service

CallDirek® 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, 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,
 

CallDirek® does not warrant that the Service will be without Service failure, delay, interruption, error, degradation of voice quality or loss of content, data or information. Neither CallDirek® 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 CallDirek®'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 CallDirek®'s or its service provider's or vendors' negligence. Statements and descriptions concerning the Service or Device, if any, by CallDirek® or CallDirek®'s agents or installers are informational and are not given as a warranty of any kind.

1.1 No Warranties, or Limited Warranties, for Devices

If Customer purchased the Device new from CallDirek® and the Device included a limited warranty at the time of purchase, Customer must refer to the separate limited warranty document for information on the limitation and disclaimer of certain warranties. If Customer's Device did not include a limited warranty from CallDirek® at the time of purchase, Customer agrees that it accepts its Device “as is” and that Customer is not entitled to replacement or refund in the event of any defect.

1.2 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.

 

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

2. GOVERNING LAW / RESOLUTION OF DISPUTES

2.1 Mandatory Arbitration
Any dispute or claim between Customer and CallDirek® arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator's decision shall 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 a punitive or certified class action to 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.
2.2 Governing Law

The Agreement and the relationship between you and CallDirek® shall be governed by the laws of the state of Florida without regard to its conflict of law provisions. You and CallDirek® agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Florida. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and CallDirek® agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Florida and waive any objection as to venue or inconvenient forum. The failure of CallDirek® 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. You agree 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.

2.3 Entire Agreement

This Agreement and the rates for Services found on CallDirek®'s website constitute the entire agreement between you and CallDirek® and govern your use of the Service, superseding any prior agreements between you and CallDirek® 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 CallDirek® unless and until posted in accordance with Section 3 hereof.
2.4 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.

3. PRIVACY

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

4. CHANGES; NOTICES

Notice to Customer of any changes to the “Terms of Service” shall be considered given by posting to the “Service Announcements” section of the CallDirek® Web Site. Notice will be considered received by Customer, and such changes will become binding on Customer, on the date posted to the CallDirek® Web Site and no further notice by CallDirek® is required.

Last Updated: November 12, 2004