Legal

FS Comm, LLC Terms of Service

Date of Last Revision: March 2017

These Terms of Service (the “TOS”) constitutes the entire agreement between FS Comm, LLC. (“FS Comm”) and you on behalf of yourself and any entity that you represent (“You”), as the user of FS Comm’s voice and advanced communications services, collaboration services, and any associated software and hardware or web-accessible portals, including FS Comm’s Synfone services (“Synfone”). This TOS governs Your use of Synfone an FS Comm service.

There are important 911 terms related to Your VoIP services, please review the entire TOS. By activatingSynfone, You acknowledge that You have read, understood and agree to these terms and conditions.

If You are uncomfortable with the limitations of the Synfone 911 service, You should consider using an alternative means of access to traditional 911 or E911 services or discontinuing use of Synfone.

By subscribing to or using Synfone, including those services, features or functionality provided by means of mobile applications, or by downloading installing, or using any associated software or hardware, You agree to these TOS. If You do not wish to accept these TOS, do not subscribe to or use Synfone or associated software or hardware.

When You accept these TOS by signing up for, subscribing to, downloading and installing any Synfone software or using Synfone, You represent and warrant that: (i) You possesses the legal right and capacity to enter into the agreement with FS Comm and to perform all of Your obligations thereunder; (ii) You are of legal age to enter into this Agreement; (iii) You have full power and authority to execute and deliver any agreement documents and to perform all of Your obligations thereunder; (v) if You accept on behalf of an organization, You’re telling us that You are authorized to bind that organization, and references to “You” in these TOS expressly includes without limitation the entity You represent; and (iv) You shall be bound by the agreement.

Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 25 (“Definitions”) below.

 

1. Operation and Limitations of Synfone 911 Service

  1. A. Synfone Provides Access to Emergency Calling Services (911).

    Synfone provides access to emergency calling services, allowing most Synfone users to access either basic 911 or Enhanced 911 (E911) service. Your access may differ depending on Your location or the device You are using, and emergency calling services work differently than You may have experienced using traditional wireline or wireless telephones.

    It is strongly recommended that You have an alternative means for placing emergency calls available at all times.

    Synfone users using IP Desk Phones or 911-Enabled Softphones can dial 911 directly from their IP Desk Phones or 911-Enabled Softphone. EMERGENCY CALLS CANNOT BE PLACED THROUGH SOFTPHONES THAT ARE NOT 911-ENABLED.

    B. How it Works.

    When a Synfone user dials 911 on an IP Desk Phone or 911-Enabled Softphone, the Synfone phone number and the Registered Address You have provided is sent to the local emergency center serving Your location. In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to see Your Synfone telephone number or Your Registered Address. You should always be prepared to provide the emergency operator with Your Synfone telephone number and Registered Address in case the call is dropped or disconnected. If You are unable to speak, the emergency operator may not be able to send help to Your location and/or call You back should the call be disconnected. Synfone does not control whether or not the emergency operator receives Your telephone number and Registered Address.

    Emergency dialing with Your Synfone Service works differently than emergency dialing over traditional phone service. In some cases, 911 calls dialed from Your Synfone device cannot be directed to the local emergency response center, and are instead directed to a National Emergency Call Center (the “NECC”). That might happen if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network. 911 calls that are directed to the NECC may not include Your Synfone telephone number or Your registered address. Trained operators at the NECC will request Your name, location, and telephone number and attempt to reach emergency responders in Your local area. Until You give the operator Your phone number, and location, he/she may not be able to call You back or dispatch help to Your location if the call is dropped or disconnected.

    C. Service limitations.

    Synfone 911 service will not function in the event of an Internet or power outage or if Your broadband, ISP, or Synfone service is terminated. It is possible that network congestion may delay or prevent completion of a 911 call. Synfone 911 service may not be available if You are dialing from a Synfone number that is not a Canadian or United States number.

    D. Registering Your Location.

    You agree to register with Synfone immediately upon activation of Your Account the address of the physical location where You will use Synfone, including each IP Desk Phone and each 911-Enabled Softphone. This is Your Registered Address. You agree that You will accurately register each individual phone number with Syfone when your service is activated. If You or Your End Users move a registered device, You agree to immediately update the Registered Address with the new physical location of the device with Synfone by submitting a support request. You acknowledge that if You do not update the Registered Address, any 911 calls made from the device may be sent to the wrong emergency response center and will not transmit Your current location information to emergency responders, delaying emergency assistance to You. It may take up to several hours for the address update to take effect. Customers with more than one phone number or extension are solely responsible for ensuring that an accurate and up-to-date Registered Address is maintained for each IP Desk Phone and each 911-Enabled Softphone, and that their End Users are aware of how the Registered Address can be changed.

    E. Notification of Employees, Guests, or Other Users.

    You agree to notify any employees, contractors, guests, or persons who may place calls using Synfone or may be present at the physical location where Synfone may be used, of the limitations of Synfone 911 Service from Your Synfone IP phone, other equipment or the Synfone Softphone. You and Your End Users should always have an alternative means for placing 911 calls and/or sending text messages to 911.

    F. Disclaimer of Liability for Emergency Call Response.

    You acknowledge and agree that Your use, and use by Your employees and/or guests or other third parties, of Synfone’s 911 Services are subject to the limitations described herein.

    The availability of certain features, such as transmission of a Registered Address or Your Synfone telephone number, depends on whether local emergency response centers support those features, and are factors outside of FS Comm’s control. Synfone relies on third parties to assist us in routing 911 calls and text messages to local emergency response centers and to the NECC. Synfone does not have control over local emergency response centers, the NECC, emergency responders, or other third parties. FS Comm disclaims all responsibility for the conduct of local emergency response centers, the NECC and all other third parties involved in the provision of emergency response services. Accordingly, to the extent permitted by applicable Law, You hereby release, discharge, and hold harmless FS Comm from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of or response to any emergency or 911 call. You agree to indemnify and hold harmless FS Comm, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of: (i) Your provision to FS Comm of incorrect information, including physical addresses, or Your failure to update Your Registered Address; (ii) Your failure to properly notify any person who may place calls using Synfone of the 911 limitations; or (iii) the absence, failure, or outage of emergency service dialing using Synfone for any reason; and (iv) the inability of any user of Synfone to be able to dial 911 or access emergency service personnel for any reason.

 

2. Plan Subscription

  1. A. Purchase of Synfone

    Pursuant to these TOS, You are purchasing a subscription for Synfone set forth in Your Synfone Service Agreement, and agreeing to use and pay for the same as set forth in these TOS. You agree to be financially responsible for Your use of Synfone, including the authorized or unauthorized use of Your Account. In order to use Synfone, You must have properly configured and working Internet service or broadband connection as set forth in Section 13(B), below. FS Comm does not provide any access to the Internet.

    B. Account Registration

    Upon signing up for Synfone and at subsequent times as requested by FS Comm, You or Your End Users may be required to provide certain information in order to begin using or to update Synfone, activate features, or add or modify an individual lines or extension (e.g., activating an Account or End User or provisioning a device) (“Registration Information”). You hereby grant to FS Comm permission and a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use Registration Information in connection with the activation, provision, support, improvement, administration, or management of your Synfone Services, as set forth in these TOS or otherwise permitted by Law. You represent and warrant that all Registration Information provided to FS Comm by or on behalf of You or any End User will be true, accurate, current, and complete, and that You will promptly confirm, update, or supplement Registration Information on file upon FS Comm’s request or in the event that such Registration Information changes.

    C. Account Administrators

    The End User(s) You designate as Account Administrator(s) of Your Account will have rights to set or modify the settings or preferences of other End Users of Your Account. You are responsible for all acts and omissions of Your Account Administrators, and any other End Users, including without limitation any changes or purchases such individuals may make to Your Account.

    D. Purchase of Additional Synfone Services

    Account Administrators may purchase additional Synfone Services for the applicable Account at any time by placing an Order by contacting any Synfone account representative for that Account. Each additional Synfone Service added to Your Account is subject to the terms of these TOS.

 

3. End User License and Restrictions

  1. A. Limited License.

    FS Comm grants You and Your End Users a limited, personal, revocable, non-exclusive, non-sub-licensable, non-assignable, non-transferable, non-resellable license to use the software and hardware provided in conjunction with Synfone in strict accordance with these TOS and solely for Your own internal business use. In the event of termination of your subscription to Synfone or termination of these TOS, all license rights granted herein or in connection with any software or hardware immediately terminate. Any IP Rights in Synfone or in any technology used in the provision thereof are and shall remain the sole and exclusive property of FS Comm and its licensors. All rights not expressly granted herein are reserved and retained by FS Comm and its licensors, and no IP Rights or other rights or licenses are granted, transferred, or assigned to You, any End User, or any other party by implication, estoppel, or otherwise. You acknowledge that misuse of Synfone may violate third party IP Rights in the software and/or hardware provided in conjunction with Synfone. You may not use or disclose any Intellectual Property or IP Rights in Synfone or any hardware or software related to the same except as expressly contemplated by this section.

    B. FS Comm’s IP Rights.

    You agree that all rights, title and interest in and to all Intellectual Property in Synfone, any software or hardware used in conjunction with Synfone, and any materials provided in connection with Synfone are owned exclusively by FS Comm or their licensors. Except as expressly provided herein, the limited license granted to You under Synfone does not convey any ownership or other rights, express or implied, in Synfone, any materials provided in connection with Synfone, or in any Intellectual Property.

    C. Use and Disclosure of Intellectual Property.

    You represent, warrant, covenant and agree that You shall not disclose or use any of the Intellectual Property in Synfone, any software or hardware used in conjunction with Synfone, or any marketing materials for any purpose following termination of Synfone or the limited license granted thereunder to use Synfone.

    D. New Versions of the Software

    FS Comm, in its sole discretion, reserves the right to add, remove, or modify features or functions, and to provide fixes, updates and upgrades to Synfone without notification to you. You acknowledge and agree that FS Comm has no obligation to make available to You any subsequent versions of Synfone; provided, however, FS Comm shall make available to You any such features, functions, fixes, updates and upgrades and subsequent versions of Synfone that FS Comm makes generally available at no additional charge to customers who subscribe to the same edition of Synfone purchased by You. In addition, You and FS Comm acknowledge that no third-party has any obligation whatsoever to furnish maintenance or support services with respect to Synfone and that FS Comm is solely responsible for the provision of maintenance and support as provided in these TOS and to the extent such maintenance and support is required under applicable Law.

 

4. Customer Security Policy

  1. A. Password Information Security

    You agree that You are responsible for all Password Information that You or any End User use with Synfone. You further agree to ensure that all such Password Information: (i) shall be immediately changed in the event that You or Your End Users learn of or suspect that any Account Security Incident has occurred; (ii) shall not be not transmitted or stored in any unsecure manner (including without limitation through any auto-storage, caching, “remember,” or auto-fill feature); and (iii) shall be protected from theft or unauthorized access, use, or disclosure with at least a reasonable degree of care and diligence.

    B. End-Point Security

    You agree to protect all End Points using, at minimum, generally accepted security measures, including without limitation: (i) effective passwords or other credentials; (ii) network segmentation and access restrictions utilizing an accurate and up-to-date access control list; (iii) session time-out and/or locking screen saver features; and (iv) use of an effective and up-to-date firewall for all networks to or through which any End Point might connect. YOU ACKNOWLEDGE AND AGREE THAT THESE REQUIREMENTS APPLY TO IP DESK PHONES, WHICH UTILIZE THE SAME CONNECTIVITY – AND ARE SUBJECT TO THE SAME SECURITY RISKS – AS COMPUTERS.

    C. Update of Security Features

    You acknowledge that some Synfone security features may require activation or installation of software or firmware updates, and software may be de-activated or uninstalled. You agree to promptly download and install all updates to software and/or hardware or firmware used in conjunction with Synfone, and generally to ensure the activation and use of all features that are necessary or appropriate to protect the Accounts, users, End Users, or Your organization’s assets and operations. You acknowledge and agree that if You decide not to install updates, this may result in the functionality of Synfone to be diminished and unstable.

    D. Account and End User Management

    You acknowledge and agree that End Users You designate as Account Administrators may have the ability to make purchases and enter into transactions on Your behalf and/or to perform acts related to Your Synfone Services, or Your Account, including any individual line or extension or ancillary services, that may significantly affect You or the operation of Your Synfone Services, including without limitation adding, removing, or modifying numbers or extensions assigned to an Account; payment method(s); making changes to software or hardware; adding, removing, or modifying ancillary services; and/or modifying settings. You are responsible for any such changes made to Your account. You agree to maintain sole and exclusive control over Your Synfone Services or Your Account at all times and to ensure that all Account rights, permissions, and settings, and all use and Usage, are effectively managed as necessary to prevent any unauthorized access to, use or Usage of, or transaction or activity through or relating to Your Synfone Services, including without limitation by implementing the following measures and practices:

    I. Disable international calling and/or calling to Alaska, Hawaii, and/or Puerto Rico for all lines or extensions for which such calls are not needed or not authorized;

    II. Restrict international calling destinations to those that are needed and authorized;

    III. Block inbound calls from any caller IDs and area codes from which You do not wish for Users to receive calls and block inbound calls with no caller ID if appropriate;

    IV. Disable attachment of facsimile image and voicemail audio files to message notification emails for associated with Your Account and/or individual lines or numbers for which such functionality is not required and to the extent that such files may include sensitive or confidential content;

    V. Regularly monitor, review, and scrutinize End User calling and other Account activity;

    VI. Promptly notify FS Comm of Account Security Incident and provide all reasonable information and cooperation requested by FS Comm in responding to any Account Security Incident; and

    VII. Implement and train all End Users as to general security controls and practices, as necessary to ensure Your compliance with this Section entitled “Customer Security Policy”.

 

5. Service and Promotional Communications and Publications

  1. A. Erroneous Product Information

    In its marketing, advertising, offering, and sale of Synfone, FS Comm attempts to describe Synfone as accurately as possible. Nevertheless, FS Comm does not warrant that any such information about Synfone, including related software and hardware, is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, such as listing erroneous or out-of-date pricing information or referring to services or features that are no longer available. Such information is provided only for customers’ convenience and is not part of these TOS, any agreement for the purchase of Synfone, or any other agreement with FS Comm.

    B. FS Comm Communications

    You agree that FS Comm may send, or have sent, to You, Account Administrators, contacts, and/or End Users Service Communications, and Marketing Communications. FS Comm shall not send Marketing Communications to You or Your End Users without providing prior notification and the right to opt out. You hereby consent to FS Comm’s distribution of Service and Marketing Communications in accordance with this Sub-Section 5(B) entitled “FS Comm Communications”. In the event that You or any End User provides FS Comm with any feedback, answers, ideas, comments, or other information in connection with any of the foregoing communications, You hereby grant FS Comm a perpetual, irrevocable, unlimited, worldwide, fully-paid up, royalty free right and license to use the same.

    C. Directory Listing Service

    You acknowledge and agree that in the event that You subscribe to the Synfone directory listing service, the information that You provide in connection with such subscription (i) may be used or reproduced by, or disclosed to, third-parties and otherwise made publicly available, (ii) FS Comm may not be able to have such information or listing removed, altered, updated, or corrected, and (iii) You and End Users may receive calls, messages, mailings, and other communications from third parties as a result of Your participation in the Synfone directory listing service. You represent and warrant that all information provided by You or any End User related to any subscription to the Synfone directory listing service will be true, accurate, and up-to-date and that You shall promptly update any such information in the event that it changes or becomes inaccurate. You hereby authorize and grant FS Comm a worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up license to use, disclose, transmit, publish, or publicize, in any medium or technology now or hereafter available, all information that You provide in connection with subscribing to, participating in, or using the Synfone directory listing service. You hereby release, discharge, and hold harmless FS Comm from and against any and all liability relating to or arising from any publication or listing of information in connection with Your subscription to the Synfone directory listing service and any third party’s use of the same.

    D. Promotional Services

    You acknowledge and agree that in the event that FS Comm offers or provides You discounts or promotional services for Synfone or an Account, FS Comm may terminate or modify the scope of such promotional services at any time without notice, unless FS Comm specifically agrees otherwise in writing in connection with its provision of the discounts or promotional services.

 

6. Acceptable Use Policy

  1. A. High Risk Use

    YOU ACKNOWLEDGE THAT THE PLAN SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU AND YOUR END USERS WILL NOT USE THE PLAN SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.

    B. Customer Legal Compliance

    You represent and warrant that all use and usage of Synfone and the Account(s) will at all times comply with all applicable Laws, including but not limited to the rules, policies and regulation of the Federal Communications Commission (“FCC”), and all Laws relating to Do-Not-Call provisions; unsolicited marketing; telemarketing; faxing; telemarketing; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export control; export of technical or personal data; end user, end-use, and destination restrictions imposed by the United States or foreign governments; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities.

    C. Unsolicited Advertisements and TCPA Compliance

    Certain communication practices – including without limitation, the placing of unsolicited calls; the placing of commercial messages; the sending of unsolicited facsimile, internet facsimile, SMS, or other messages; and the use of certain automated telephone equipment to place certain calls – is regulated in the United States by the Federal Telephone Consumer Protection Act of 1991 (also known as the “TCPA”) (available at https://www.fcc.gov/document/telephone-consumer-protection-act-1991), the Junk Fax Prevention Act of 2005, and under a number of similar state, municipal or local laws, regulations, codes, ordinances and rules.

    You agree, represent and warrant that:

    I. You are the creator of the content of, and are solely responsible for determining the destination(s) and recipient(s) of, all outbound communications made using Synfone (“Customer Communication”);

    II. All content, communications, files, information, data, and other content provided for transmission through Synfone and Account will be provided solely for lawful purposes, and in no event shall any Customer Communication or any content thereof be in violation of the TCPA, Junk Fax Prevention Act, or any other Law; and

    III. No unsolicited advertisements, commercial messages, solicitations, marketing or promotional materials, or commercial messages or content will be transmitted or distributed in the form of facsimiles or internet facsimiles through Synfone.

    At FS Comm’s sole option and without further notice, FS Comm may use technologies and procedures, including without limitation, filters, that may block or terminate such unsolicited advertisements without delivering them.

    You agree to indemnify and hold harmless FS Comm, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising: (i) out of Your violation or alleged violation of the TCPA or Junk Fax Prevention Act or any similar regulation or legislation; or (ii) otherwise related to any voicemail, text, and/or fax spam, solicitations, or commercial messages that You may send and/or receive using Synfone.

    D. Export Restrictions

    You acknowledge and agree that the software and/or hardware used in conjunction with Synfone may be subject to Canada, United States and other foreign Laws and regulations governing the export, re-export, and/or transfer of software by physical or electronic means. You agree, represent, covenant, and warrant that: (i) neither You nor any End User (nor any entity or person that controls You or any End User): (a) is located in an Embargoed Area or listed on any Export Control List or (b) will export or re-export any Synfone software or hardware into any Embargoed Area or to any person, entity, or organization on any Export Control List, or to any person, entity, or organization subject to economic sanctions due to ownership or control by any such person, entity, or organization, without prior authorization by license, license exception, or license exemption; and (ii) Synfone and FS Comm software and/or hardware will not be Used or accessed from any Embargoed Area.

    E. Recording Conversations or Calls

    Certain features of Synfone may allow You or users of Synfone to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications may vary from state to state, and country to country. You should consult with an attorney prior to recording any call as some states or countries may require callers or users to obtain the prior consent of all parties to a recorded call, or other communication before the caller or User may record the call, or other communication. You represent, covenant, and warrant that You will review all applicable Laws before You use or allow use of Synfone to record any calls or other communications and will at all times comply with all applicable Laws. You agree to inform all users of Your Account that they are obligated to comply with all Laws relating to their use of the call recording feature.

    Violations of the call recording Laws may be subject to criminal or civil penalties.

    FS Comm expressly disclaims all liability with respect to Your recording of telephone conversations. You agree to indemnify and hold harmless FS Comm, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of Your violation or alleged violation of any call recording Laws. FS Comm expressly disclaims all liability and all warranties with respect to recording of conversations and/or calls.

    F. Prohibited Use of Synfone.

    Neither You nor any User of Your Synfone Service may use or allow use of Your Synfone Service in any of the following ways:

    I. in any manner or for any purpose that is fraudulent, malicious, deceptive, dishonest, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, or in violation of any Law;

    II. to intentionally send or transmit unsolicited or “junk” or “spam” advertisements, communications, or messages (commercial or otherwise) without consent, including without limitation through email, voicemail, SMS, facsimile, or internet facsimile;

    III. to harvest or otherwise collect information about others, including without limitation email addresses or personally-identifiable information, without their consent;

    IV. to intentionally engage in blasting or broadcasting bulk communications, advertisements, or messages (e.g., sending hundreds of messages simultaneously), including without limitation through email, voicemail, SMS, facsimile, or internet facsimile;

    V. to perform auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls) in violation of applicable Law;

    VI. to transmit any communication that would violate any applicable Law, including but not limited to the Telephone Consumer Protection Act, the Junk Fax Prevention Act of 2005, the rules governing the DoNotCall Registry, Canadian Unsolicited Telecommunications Rules;

    VII. to intentionally transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous;

    VIII. to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value, including by creating a false Caller ID identity or forged email/SMS address or header or by otherwise attempting to mislead others as to the identity of the sender or the origin of any outbound Customer Communication;

    IX. to infringe, misappropriate, or otherwise violate the foreign or domestic IP Right or proprietary right of any party, including without limitation by transmitting or storing any material that might infringe, misappropriate, or otherwise violate any such right;

    X. to violate the right of privacy, personality, or publicity of any party, including without limitation by transmitting or storing any material that might violate any such right;

    XI. to violate any Law regarding the transmission of technical data or information or software through Synfone;

    XII. in any manner that interferes with FS Comm’s ability to provide high quality products or services to other customers;

    XIII. to store PHI; or if You qualify as a “covered entity,” “business associate,” or “subcontractor” under HIPAA (or similar terms under similar legislation in other jurisdictions) or are otherwise subject to HIPAA, to transmit, receive, or store PHI without the Synfone HIPAA Compliance service being active and in effect.

    A breach of obligations in this Section constitutes a material breach of these TOS or Your Synfone Service Agreement, as applicable, such that FS Comm may suspend service, terminate the Agreement immediately, or take any other action FS Comm deems necessary to enforce the terms of this Section;

    G. Prohibited Acts.

    You represent, warrant, covenant, and agree that neither You nor any End User shall do any of the following during the Term:

    I. transmit, upload, distribute in any way, or store any corrupted file or material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous or may damage the operation of Synfone or another party’s computers, devices, equipment, systems, or networks;

    II. take advantage of, bypass, exploit, or otherwise avoid Your obligations or the provisions, restrictions, and prohibitions set forth in this Section 6 (or attempt to do so);

    III. interfere with or disrupt networks or systems connected to Synfone;

    IV. sell; resell; distribute; lease; export; import; or otherwise grant or purport to grant rights to third parties with respect to Synfone, and any software or hardware used in conjunction with Synfone or any part thereof without FS Comm’s prior written consent;

    V. display or use of any FS Comm or Synfone Mark in any manner in violation of FS Comm’s then-current policies on its trademark and logo usage or without FS Comm’s express, prior written permission, to be granted or denied in FS Comm’s sole discretion,

    VI. display or use of any Third Party Mark without the prior, written consent of the third party that owns the Third Party Mark;

    VII. undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of Synfone or any software and hardware used in conjunction with Synfone, or part thereof;

    VIII. defeat, disable, or circumvent any protection mechanism related to Synfone;

    IX. intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data used by FS Comm for any purpose, including without limitation by causing the any product to connect to any computer server or other device not authorized by FS Comm or in any manner not authorized in advance in writing by FS Comm;

    X. allow any service provider or other third party – with the sole exception of FS Comm’s authorized maintenance providers acting with FS Comm’s express, prior authorization – to use or execute any software commands that facilitate the maintenance or repair of any software or hardware used in conjunction with Synfone;

    XI. gain access to or use (or attempt to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining);

    XII. engage in or to allow trunking or forwarding of Your Synfone telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system not authorized by FS Comm or in any manner not authorized in advance in writing by FS Comm; or

    XIII. violate or take any action to jeopardize, limit, or interfere with FS Comm’s IP Rights, including without limitation their IP Rights in the software and hardware used in conjunction with Synfone.

    A breach of obligations in this Section constitutes a material breach of these TOS or Your Synfone Service Agreement, as applicable, such that FS Comm may suspend service, terminate the Agreement immediately, or take any other action FS Comm deems necessary to enforce the terms of this Section.

 

7. Charges and Plan Credits

  1. Please note that all prices, Taxes, surcharges, and fees are subject to change at any time. You are responsible for paying all charges for Your Account, including but not limited to toll -free, local, long distance, international minutes, additional feature charges, 411 and operator assisted charges, and directory assistance charges, and for all Taxes, surcharges, and fees imposed on You or us as a result of Your use of Synfone. Customers with a past due balance on previous or multiple accounts will be charged the full balance upon opening a new account or updating their credit card information on file.

    A. Charges and Plan Credits

    FS Comm offers several different plan options for Synfone. You may change Your Synfone plan at any time. In addition, certain plans may entitle You to receive discounts on equipment used in connection with Synfone. If You receive any equipment discounts associated with a Synfone plan and subsequently change that plan to one that does not offer those equipment discounts, You agree to reimburse FS Comm, and hereby authorize FS Comm to charge Your credit card or bank account on file, or invoice You, as applicable, for such equipment discounts.

    B. Service Availability

    You acknowledge and agree that the products or services, including without limitation Synfone, may not be available one hundred percent (100%) of the time. Credit allowances for interruption of Synfone may only be provided on a case-by-case basis at the sole discretion of FS Comm and shall be Your sole remedy for any Synfone Services interruptions or other issues with Synfone.

    C. Plan Credits and Minutes

    FS Comm offers several different plans for its products and services. Some of the plans provide for a fixed number of monthly usage minutes (“Plan Minutes“). When You exhaust Your initial paid allotment of Plan Minutes for Your plan, unless You advise FS Comm otherwise in writing, FS Comm will automatically bill Your Account for the smallest available bundle of Plan Minutes for the applicable service. All of the Plan Credits are quoted in terms of domestic minute usage, and may be referred to on the FS Comm website or by a FS Comm Customer Service Representative as “minutes”. As explained below, international calling may be charged at a different rate than domestic calling, and a Plan Minute therefore will not entitle You to a minute of international calling (“International Minutes”).

    D. Unlimited Plan

    FS Comm offers unlimited monthly plans for some of its products and services. An unlimited plan provides You with a local or toll-free telephone number and is subject to the terms and restrictions of these TOS. If, for any reason, FS Comm believes that Your usage of the unlimited plan and services violates these TOS, then FS Comm may, in its sole discretion with or without notice, either terminate Your unlimited plan or immediately convert Your unlimited plan to a metered plan.

    E. Value, Ownership, and Expiration of Credits or Minutes

    In no event shall any Toll-Free Minute, International Minute Credit, Billing Credit, Plan Minute, or any other type of credit or minute issued to You or applied to an Account have any monetary value or be exchangeable or exchanged for cash. Account Credits may be applied to only the Account for which they were purchased and/or provided, and may not be sold, transferred, assigned, or applied to any other Account, plan, or customer. Credited Toll-Free Minutes not applied to Usage of the applicable Account during the monthly billing cycle for which they are credited shall expire at the end of such cycle and shall in no event be available for application to Usage occurring during (or “roll over” to) any other period. Other Account Credits shall expire according to the terms of their purchase or provision.

    F. Discounts

    From time to time in its sole discretion, FS Comm may offer promotions or discounts. Any promotion or discount codes must be provided to FS Comm upon purchase of Synfone. You are not entitled to a subsequent credit for any promotions or discounts if You do not request the promotion or discount credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or retroactively.

 

8. Billing and Payment

  1. A. Plan Services Fees.

    The Synfone Service Agreement sets forth the base recurring fees for Your Synfone Service for each monthly billing cycle. Any applicable initiation charges, Usage, monthly recurring charges, support charges, Taxes, and other fees are billed in full in advance. Termination, international minutes, equipment return fees and transfer charges, if any, are billed in arrears. Upon termination of Your Account for any reason, all unused Plan Minutes and unused International Minutes shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused Plan Minutes, Promotional Credits, or International Minutes or any other credits to Your Account.

    B. Taxes and Fees.

    All fees for Services advertised or otherwise listed on the FS Comm website are inclusive of any Taxes. You agree to pay all Taxes and similar liabilities that may now or hereafter be levied on Synfone and related software or hardware by any federal, state, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on FS Comm, whether or not mandated by law or regulation. Should FS Comm pay or be required to pay such liabilities (including any Taxes that were due but not charged or previously collected), You agree that FS Comm may charge Your credit card or bank account on file or invoice You, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to FS Comm.

    C. Late Fees

    You agree and acknowledge that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) twelve percent (12%) per annum; or (ii) the highest rate allowed by Law. FS Comm’s acceptance of late or partial payments regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly) shall not waive, limit, or prejudice in any way FS Comm’s rights to collect any amount due. FS Comm may terminate Your Synfone Services covered in these TOS for non-payment if any fees or charges are not paid within thirty (30) days of the due date.

    D. Form of Payment

    All fees and charges are payable to FS Comm by check, credit or debit card, or bank account draft. You agree to be liable for a processing fee in the amount of the lesser of: (i) thirty dollars ($30.00); or (ii) the highest amount allowed by Law for any credit card chargeback or check or other payment returned for nonpayment.

    When You subscribe to Synfone, You will provide us with a payment method, such as a valid credit card or bank account or information for invoicing (if You are pre-approved by FS Comm in its sole discretion to be billed via invoice), and, if applicable, authorize us to collect from the payment method provided. Any authorization to charge a provided credit card or bank account will remain valid until thirty (30) days after You withdraw the authorization, or immediately upon provision of a replacement valid credit card or bank account. Upon termination of this Agreement, we will charge You any fees and any other outstanding charges and disconnect Your Synfone service. You agree to advise and notify us of any changes to Your payment method, such as credit card account number, expiration date, or bank account number changes. If the credit card or other payment method on Your Account is declined or fails for any reason, FS Comm will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, FS Comm reserves the right to disconnect Your Service and terminate Your Account if Your payment method is declined or fails for any reason, or if You withdraw authorization to charge a valid credit and do not provide an alternative payment method, and FS Comm reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to FS Comm.

    E. Disputed Amounts

    You will waive the right to dispute any billed amount if You do not dispute such amount within thirty (30) days of the date of its billing. In the event that You timely dispute a billed amount and FS Comm confirms that You were over-billed, FS Comm shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be FS Comm’s sole and exclusive obligation and Your sole and exclusive remedy with respect to any erroneous billing.

    Notwithstanding the foregoing, if You request that Your bank or credit card company perform a chargeback or decline to process a check without first contacting FS Comm to dispute the charge, and FS Comm subsequently determines that the charges at issue are not erroneous, FS Comm reserves the right to terminate Your Account immediately and take any available legal action.

    You are solely liable for any transactions or usage on Your Account, whether by You, any End User, or any other user of Your Synfone Services, and in no event shall FS Comm be liable for any unauthorized use of Your Account.

 

9. Treatment of Customer Communications, Content, and Account Data

  1. A. Passive Conduit Role

    The Parties acknowledge and agree that: (i) FS Comm’s role with respect to Customer Communications and the content thereof shall be that of a passive conduit; and (ii) any storage of Customer Communications and/or Account Data by FS Comm shall be performed merely as a convenience to You and as a compliment to and incidental to FS Comm’s core data transmission function.

    B. Disclaimer of Data Storage Responsibilities

    You acknowledge and agree that: (i) FS Comm shall have no obligation to store, retain, back-up, or ensure the availability of any stored Customer Communications and/or Account Data; (ii) to the extent that You wish to retain any Account Data or other information relating to Your Synfone Services, an Account, or the use thereof, You shall ensure that such information is downloaded, saved, and/or backed-up outside of Your Synfone Account, as necessary or appropriate for Your and/or the End Users’ purposes; (iii) You shall not rely on Your Synfone Account as a repository for or means by which to retain, store, or back-up Account Data or any other data, information, or materials; (iv) FS Comm may delete or purge any and all copies and versions of any stored Customer Communications and/or Account Data or other data at any time, without notice, including without limitation after You delete any such information from an Account or after termination of the TOS or closure of an Account; and (v) FS Comm may, in its sole discretion and option and without notice, implement reasonable limits as to the size or duration of storage of Account Data.

    C. Access to Account Data

    You and Your End Users can obtain Account Data and any stored Customer Communications with Your login credentials in the relevant FS Comm administrative or customer portal. FS Comm will not otherwise provide access to You, Your End Users, or Your agents of Account Data or stored Customer Communications, except as otherwise set forth in any agreement of the purchase of Synfone Services, or these TOS, or as required by Law.

    D. Record / Information Gathering and Production

    You acknowledge and agree that Synfone does not include the performance of any of the following tasks or work by FS Comm, and in no event shall FS Comm be obligated under these TOS to perform any of the following tasks or work: (i) the investigation, access, correction, alteration, gathering, compilation, review, verification, or production of any Account Data, Customer Communications, or any other records, documents, information, or evidence related to You or Your Synfone Services or transmitted, received, or stored through an Account; (ii) the provision of legal or other counsel; or (iii) the provision of assistance, cooperation, or information beyond that which is directly and specifically related to FS Comm’s fulfillment of its obligations under these TOS or pursuant to applicable law. For the avoidance of doubt, except as provided herein or required by Law, FS Comm is not obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or Legal Process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.

    E. Export of Account Data

    You acknowledge and agree that any Account Data, stored Customer Communications, or other information or materials that You export will not be under FS Comm’s control and will not be subject to or protected by FS Comm’s security controls. You or Your End Users shall comply with all applicable Law relating to the use, disclosure, access, or export of data from Your Synfone Account or use of Synfone.

    F. Release.

    You hereby release, discharge, and hold harmless FS Comm from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “Treatment of Customer Communications, Content, and Account Data.”

 

10. FS Comm and HIPAA

  1. A. No Storage of Personal Health Information.

    You acknowledge and agree that Synfone is not designed, intended, or recommended for use as a repository or means by which to store “protected health information,” as defined under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto (such laws and regulations, “HIPAA”; such information, “PHI”) on a non-temporary basis, and You represent and warrant that neither Your Synfone Services nor any ancillary product or service that is a part thereof will be used for such purpose. FS COMM SPECIFICALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOUR SYNFONE SERVICES, THE ACCOUNT(S), OR THE PRODUCTS (OR THE USE OF ANY OF THE FOREGOING BY ANY PARTY) COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW.

    B. Operation of Synfone HIPAA Compliance Service; Consequences of Activation

    FS Comm offers a HIPAA Compiance Service for its United States based Customers. You acknowledge that:

    I. activation of the Synfone HIPAA Compliance Service may result in automatic and permanent deletion from the applicable Account(s) of Customer Communications that are stored in those Account(s) and that are thirty (30) or more days old;

    II. if any Customer Communications that are thirty (30) or more days old are currently stored in the applicable Account(s), they may be permanently deleted from such Account(s), and such deletion may occur as soon as immediately after activation of the Synfone HIPAA Compliance Service;

    III. the deletion functions described above may permanently delete Customer Communications such that they are not retained by FS Comm in any form (including on any back up or disaster recovery system); and

    IV. the Synfone HIPAA Compliance Service may disable attachment of voicemail and facsimile/internet facsimile messages to message notification emails sent by Synfone in connection with any such Accounts.

    C. Release.

    You hereby release, discharge, and hold harmless FS Comm from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “FS Comm and HIPAA.”

 

11. Number Policies

  1. A. Number Availability.

    FS Comm may make available telephone and/or facsimile numbers for Your selection and assignment to Account(s). You acknowledge and agree that FS Comm’s listing of a number may be erroneous and does not constitute a representation or guarantee that such number is actually available for such assignment, and that FS Comm shall be authorized to remove such number from an Account in the event that it is not actually available.

    B. Number Porting Policy

    I. Federal Porting Law. Number porting is defined and regulated by the Federal Communications Commission. You may visit https://www.fcc.gov/consumers/guides/porting-keeping-your-phone-number-when-you-change-providers to learn more about number porting.

    II. Number Port-In Request Procedures. In order to request the porting of a telephone or facsimile number into an Account, the Account Administrator for the Account into which You wish the telephone or facsimile number to be ported must open a support ticket and complete all steps and provide all information requested as part of the number port-in request process (which may include without limitation providing an executed Letter of Agency) or as otherwise requested by FS Comm.

    III. The Number Porting Process. In order to request the porting out to another services provider of a telephone or facsimile number currently assigned to an Account, You must follow the instructions specified by that services provider and must provide all information and cooperation requested by the relevant other services providers, FS Comm, or any other relevant third party. You acknowledge and agree that: (i) the porting of telephone or facsimile numbers into or out of an Account requires Your provision of specific and detailed information to FS Comm and/or third parties (including without limitation other services providers) and completion of certain steps and procedures, as well as third parties’ completion of certain steps; and (ii) numbers may not be ported into or out of an Account unless and until You are able to provide certain specific information that matches other information on record with FS Comm or other services providers. For these and other reasons, the completion of any number port request and the timing of and date by which any such request may be completed depend on a number of factors outside of FS Comm’s control, including without limitation the acts and omissions of both You and third parties, including without limitation other services providers.

    IV. Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from Your Plan Services or an Account due to acts or omissions of third parties, and it may be difficult or impossible for FS Comm to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of an Account; or (iii) port such numbers back into an Account. FS Comm has no responsibility or liability due to such port-outs.

    V. Accurate Porting Information. You agree, represent and warrant that all information or representations provided in connection with any request to port in or port out numbers (including without limitation any information or representations in any Letter of Agency) by You, any User or End User, or any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing shall be true, accurate, and up-to-date.

    VI. Customer Compliance with Porting Laws. You acknowledge and agree that the porting of numbers is subject to telecommunications and other Laws and may be subject to third party terms and conditions. You agree, represent, and warrant that neither You; nor any User or End User; nor any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing will at any time: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct in its porting-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephony service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.

    VII. Release of Numbers. You acknowledge that in the event of account termination or cancellation, all telephone numbers associated with Your Account, which have not previously been ported to another provider, may be released. Similarly, the cancellation of individual lines may result in the release of the related numbers if those numbers have not previously been ported to another provider. You acknowledge that You are solely responsible for working with a third-party provider to port out any numbers prior to termination or cancellation of Your Account or Synfone Services, or any individual line.

    C. Number Publication by Customer

    Neither You nor any End User may publicize, list, or communicate any number that You believe to be assigned to Your Synfone Services or Account, or purchase or invest in any materials or media reflecting any such number unless and until You have verified that such number is active and functioning as desired, including without limitation by test calling such number from a non-Synfone service and verifying that the fees and charges that will be incurred in connection with Use of such number are acceptable to You.

 

12. Account Disputes

  1. The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for Synfone. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card or bank account used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation.

    A. Account Disputes

    You agree that in no event shall FS Comm be obligated to – and in no event shall You request that FS Comm – participate in or act as the arbiter, adjudicator, or intermediary with respect to any claim or dispute relating to the ownership or control of, or rights relating to, Your Synfone Services, any Account, any numbers assigned to an Account, or any Account Data or other information related to an Account or Your Synfone Services (“Account Ownership Disputes”). In the event of any Account Ownership Dispute, FS Comm is authorized to take any course of action that it deems to be appropriate, including without limitation declining to take any action.

    B. Access to Account Data or Customer Communications

    As permitted or required by Law, FS Comm may access, monitor, use or disclose Your Account Data, Customer Communications, and/or personal information to: (i) comply with the Law or respond to lawful requests or legal process; (ii) protect the rights or property of us, our agents, members, our customers, and others including to enforce our agreements, policies and terms of use; (iii) respond to emergencies; (iv) initiate, render, bill, and collect for services; or (v) facilitate or verify the appropriate calculation of Taxes, fees, or other obligations due to a local, state, or federal government requirement.

    C. Release

    You agree to release, discharge, and hold harmless FS Comm from and against any and all liability relating to or arising from their acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Law or any Legal Process.

 

13. Service Requirements and Limitations

  1. A. Caller ID Display Limitations and Compliance

    You acknowledge and agree that the disclosure and/or display of information related to the origination of calls, messages, and other communications (including without limitation “Caller ID” information) may be subject to legal requirements, including without limitation those related to the accurate display of such information or the enforcement of certain privacy instructions, settings, etc. You agree to comply with all such applicable Laws and implementing regulations, including without limitation the Truth in Caller ID Act. FS Comm has no obligation to disclose, display, or transmit any such information for or in connection with any Customer Communication. You agree to indemnify and hold harmless FS Comm from any and all third party claims, losses, damages, fines, or penalties arising out Your breach of this Section.

    B. IP Network Sufficiency

    You acknowledge and agree that: (i) Synfone require a properly-configured, high performance, enterprise-grade broadband IP network and connection; (ii) use of Synfone with any lesser network, services, or connection may result in partial or complete unavailability, interruption, or underperformance of Synfone or other services utilizing the same network, services, or connection; and (iii) 3G or 4G networks are not recommended for use with Synfone. Accordingly, You agree to provide and maintain, at Your cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for Synfone to connect to and use such network, services, and connection. FS Comm is not liable for any unavailability, interruption, or underperformance of Synfone related to Your IP network or connection.

    C. Use of Third Party Devices

    FS Comm does not guarantee or make any representation or warranty that any third party IP telephone or other device will work or be compatible with Synfone or support Synfone’s full performance or quality of service potential or range of features and functionalities.

    D. Use of Mobile Application

    A Mobile Application can be configured to make or receive calls on Your 3G or 4G network using Your data service, and may result in additional data usage fees from Your mobile service provider. You may be able to disable 3G/4G calling by configuring the Mobile Application to make/receive calls only over a wi-fi connection. Configuring the Mobile Application to disable VoIP calling will result in FS Comm making/receiving calls using Your voice connection from Your mobile service provider; this may result in additional voice minute usage fees from Your mobile service provider.

 

14. Support and Feedback

  1. FS Comm will make support available to You and Your End Users, which will be available to attempt to resolve technical issues with, and answer questions regarding the implementation or use of, Synfone. Such support shall not include, and FS Comm shall have no obligation hereunder to perform, any of the following: (i) on-site support; (ii) implementation of any software or hardware other than that provided by FS Comm; (iii) configuration of any device other than that provided by FS Comm; (iv) dedicated representative support; or (v) network or third party equipment support. If You have a customer support issue, You may visithttp://synfone.net/support or open a support ticket with Synfone Support (“Support”) by emailingsupport@synfone.net or calling the support phone number listed at http://synfone.net/support. Any End User contacting Support may be required to provide certain verifying information (e.g., the answer to a security question on file) to receive support from Support, and Support may limit the level of support that it will provide or scope of information that it will disclose or confirm to any inquiring End User based on the scope of his or her Account rights or permissions. Support is typically available from 8:00 AM (EST) until 6:00 PM (EST), Monday, Tuesday, Wednesday, Thursday, and Friday (“Support Hours”) but is not immediately available at all moments during Support Hours. Support requests received by Support outside of the Support Hours may be responded to outside of the Support Hours at the discretion of FS Comm.

    From time to time, FS Comm may send You surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. You hereby grant FS Comm, its licensors, and suppliers a perpetual, unlimited, worldwide fully-paid up, royalty free license to use all feedback, answers, ideas, comments, or other information You provide to FS Comm.

 

15. Service Changes

  1. You understand and agree that FS Comm may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to You. In the event that a change to the Services would, in FS Comm’s reasonable discretion and judgment, permanently and materially diminish or impair the functionality of the Services (a “Change”), and such Change is unacceptable to You, You may terminate the Services without penalty within thirty (30) days of becoming aware of the Change by calling FS Comm at 877-316-7289. Any use of the Services after the such date will be deemed Your acceptance of the Change.

 

16. Additional Terms for FS Comm VoIP Service

  1. FS Comm Plan Services include one or more Voice over Internet Protocol (“VoIP“) extensions included in Your Synfone Services, and for other plans, FS Comm offers options to add one or more VoIP extensions to Your Synfone Services. In either case, Services for the VoIP extension(s) will be referred to as “VoIP Service”, for which the following additional terms shall apply:

    A. Operator Assisted Calling, 311, 511 and other X11 Calling

    FS Comm does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). Your Plan Service may not support 211, 311, 411, 511, and/or other N11 calling (except as otherwise provided in these TOS) in one or more service areas.

 

17. Publicity Rights

  1. You agree that FS Comm may identify You as a user of Synfone in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on FS Comm’s website, or any other third-party website where FS Comm or its designated agents may promote the Services. You hereby grant FS Comm and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.

 

18. Copyright Infringement

  1. Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) upon good faith belief that copyrighted content transmitted via Synfone is infringed, the copyright owner or its agent may send FS Comm a notice requesting removal of the infringing content or blocking access to it. Also, the DMCA allows a party against whom a notice of copyright infringement has been filed to submit a counter-notice. Notices and counter-notices must meet the then-current statutory requirements implemented by the DMCA. Notices and counter-notices may be sent to FS Comm at the following postal address:

    FS Comm, LLC.

    P O Box 149

    Cedar Brook, NJ 08018

    USA

    The notice must include: (i) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (ii) a description of the copyrighted work that is claimed to have been infringed upon; (iii) information reasonably sufficient to permit FS Comm to locate the copyrighted work; (iv) address, telephone number, and e-mail address of the owner of the copyrighted work; (v) a statement by the owner of the copyrighted work or its agent asserting good-faith belief that the use in question is not authorized by the copyright owner, its agent, or the Law; and (vi) a statement by the owner of the copyrighted work or its agent, made under penalty of perjury, that the foregoing information in the notice is accurate and affirming ownership of the copyright or authorized to act on the copyright owner’s behalf.
    Any notice or counter-notice must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. Parties should seek the advice of legal counsel before submitting a notice or counter-notice. Upon receipt of the notice, FS Comm may make a good faith attempt to transmit the notice to the party who has transmitted or received the allegedly infringing copyrighted work, and to transmit any counter-notification to the complaining party. FS Comm may, at its sole discretion, suspend, terminate, or disconnect ’s access to and use of Synfone or Account if it is deemed that such party has engaged in more than one instance of copyright infringement.

 

19. Indemnification

  1. To the maximum extent permitted by applicable Law, You shall indemnify and hold harmless, individually and collectively, FS Comm, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties“) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) the use of or reliance upon Synfone by You or any third party acting with Your permission, knowledge, authority or direction; (ii) a breach of these TOS by You, or any End User; (iii) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use Synfone or failure or outage of Synfone for any reason, including but not limited to those related to calling, “911” or other emergency responders; (v) the use of Synfone in connection with a violation of any applicable law, code, regulation, or ordnance; or (vi) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, Intellectual Property rights, rights of privacy, and rights of publicity and personality.

 

20. Termination

 

You may cancel or terminate Your use of Synfone with or without cause at any time by calling customer service at 877-316-7289, subject to the restrictions and fees provided in these TOS, and any additional agreements governing the products or services.

  1. A. Generally.

    You understand and agree that FS Comm may at any time, and without additional notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of Synfone if:

    I. FS Comm determines or reasonably suspects that You have materially breached these TOS;

    II. FS Comm determines that You have created or caused to be created multiple free accounts;

    III. FS Comm determines that You have used a fraudulent credit card or bank account to pay for Service charges on Your Account;

    IV. FS Comm determines that You have verbally insulted, abused, or harassed any of its employees, contractors, agents, or other representatives;

    V. You did not or will not reasonably comply or cooperate with any applicable Law or regulation, or FS Comm is made aware of allegations of the same.

    VI. FS Comm is ordered by law enforcement or other government agencies to suspend or terminate Service to Your Account;

    VII. You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against FS Comm, or participate in any class action lawsuit against FS Comm;

    VIII. You file a petition in bankruptcy or if a petition in bankruptcy is filed against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Your relevant property;

    IX. FS Comm determines that such action is necessary to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect FS Comm, its customers, or other third parties affiliated with FS Comm; or for any other good cause;

    X. You violate applicable Law; or

    XI. As otherwise contemplated by these TOS.

    Upon any termination or suspension of Your Account, FS Comm may immediately deactivate or delete Your Account and all related information and files in Your Account and/or restrict any further access to such files, information, or Your Synfone Services.

    FS Comm shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to Your Synfone Services.

    If You or FS Comm terminate or suspend Your right to use the Services, You shall not be entitled to any refund or pro ration of any pre-paid amounts, Plan Credits, international calling credits, or other amounts paid to FS Comm prior to the termination or suspension date.

 

21. Warranty Disclaimer

  1. TO THE EXTENT PERMITTED BY LAW, THE PLAN SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND FS COMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, FS COMM SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT ANY PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR SYNFONE PLAN, ANY ACCOUNT, OR ANY PRODUCT OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT FS COMM CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

    SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT FS COMM CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

 

22. Limitation of Liability

  1. A. Consequential Damages

    IN NO EVENT SHALL FS COMM BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF FS COMM HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.

    B. Direct Damages Cap

    EXCEPT AS SET FORTH BELOW, FS COMM’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE PLAN SERVICES FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO: (i) YOUR LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (ii) YOUR LIABILITY ARISING FROM YOUR ACTUAL OR ALLEGED BREACH OF SECTIONS 1 (911 POLICY), 6 (ACCEPTABLE USE POLICY), 11 (NUMBER POLICIES), OR 4 (CUSTOMER SECURITY POLICY) OF THESE TOS.

    C. Scope and Exceptions

    THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION ENTITLED (LIMITATION OF LIABILITY):

    I. SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW,

    II. SHALL NOT DISCLAIM, LIMIT, OR CAP CUSTOMER’S OBLIGATION TO PAY ANY FEES OR CHARGES OR OTHER AMOUNT OWED TO FS COMM OR ANY DAMAGES TO WHICH FS COMM IS ENTITLED UNDER APPLICABLE LAW FOR INFRINGEMENT OF IP RIGHTS,

    III. REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND

    IV. SHALL SURVIVE TERMINATION OR EXPIRATION OF THE SYNFONE SERVICES AND APPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN.

    SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

 

23. General Terms

  1. A. Relationship of the Parties

    The Parties’ relationship under these TOS is that of independent contractors. Nothing in these TOS shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any way.

    B. Notices

    Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at FS Comm’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Your current address on Your Account. You are responsible for notifying FS Comm of any changes in Your contact information or address by submitting a support ticket or by contacting customer service at 877-316-7289.

    Written notice to FS Comm shall be effective when directed to FS Comm’s Legal Department and received at FS Comm’s then-current address as posted on FS Comm’s Website, http://synfone.net. Your notice must specify Your name, Account information, and security verification question and answer (if applicable) . All notices from You to FS Comm must be made in writing.

    C. Force Majeure

    Excluding either Party’s payment obligations under the Agreement, neither Party shall be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; Laws; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents a Party’s performance for more than forty-five (45) consecutive days, either Party may terminate the particular agreement document(s) impacted.

    D. Third Party Beneficiaries

    Nothing in these TOS, express or implied, is intended to or shall confer upon any person or entity other than the Parties themselves any right, benefit, claim, or remedy as a third party beneficiary or by any other nature whatsoever under or by reason of these TOS.

    E. Choice of Law

    These TOS and Your use of Synfone shall be governed by and construed under the laws of the State of New Jersey and the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOS or Your sign up or use of Synfone.

    F. Dispute Resolution and Optional Arbitration

    In the event of any dispute, claim, question, or disagreement between You and FS Comm (“Dispute“), You and FS Comm shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of FS Comm’s legal department (or other representative of FS Comm designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor FS Comm shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.

    Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.

    In the event of any litigation (including arbitration) between You and FS Comm, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.

    Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to You.

    G. Venue

    You agree that any Disputes shall be adjudicated in the state and federal courts of the State of New Jersey, U.S.A. Venue for any Disputes shall be the court of proper jurisdiction in the City and County of Camden, New Jersey. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.

    H. Equitable Relief

    You agree that any breach of FS Comm’s IP Rights will cause FS Comm irreparable harm for which monetary damages will be inadequate and FS Comm may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.

    I. Class Action Waiver

    Any actions, lawsuits, or shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity.

    J. Consumer Notice

    The following specific consumer rights notice is hereby provided under California Civil Code Section 1789.3 to California customers and users of the Products: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at (916) 445-1254.

    K. No Waiver

    In no event shall any failure or delay by FS Comm to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these TOS, in whole or in part, be deemed a waiver of any right or remedy under these TOS on such occasion or any other occasion. Except as otherwise expressly stated in these TOS or an agreement document duly executed by both FS Comm and You, all rights and remedies stated in these TOS are cumulative and in addition to any other rights and remedies available under these TOS, any agreement document, at Law, or in equity.

    L. Interpretation

    These TOS, including the documents incorporated herein, constitutes the entire agreement between You and FS Comm with respect to Synfone and supersedes all prior or contemporaneous understandings regarding such subject matter.

    If any part of these TOS is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.

    The failure of FS Comm to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or any other provision.

    The section titles in these TOS are for convenience only and have no legal or contractual effect.

    This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and iii3) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.

    M. Assignment

    Either party may assign these TOS and any of its rights and obligations hereunder with the other party’s prior written consent (which such consent shall not be unreasonably withheld), except that FS Comm may, without notice, assign the TOS and all of FS Comm’s rights and obligations hereunder to: (i) an affiliate; or (ii) FS Comm’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets, or the transfer or disposition of more than fifty percent (50%) of a FS Comm’s voting control or assets. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, these TOS shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.

    N. Severability

    If any provision or portion of the Agreement is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the Parties’ original intent and (ii) the remaining provisions and portions of the Agreement shall remain in full force and effect.

    O. Survival

    The following provisions of these TOS will survive termination or expiration of these TOS for the maximum term allowed by Law: (i) Your payment obligations; (ii) terms relating to intellectual property ownership, customer representations, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this agreement.

 

24. Future Changes to these TOS

  1. We may change the terms of these TOS from time to time upon delivery of electronic or written notices to You. FS Comm generally provides written notice of changes to Your account, including these TOS and any other legal agreements, via email, electronic notice on the FS Comm Website or on Your billing statements, or as otherwise required by applicable Law. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from FS Comm fully regarding any such notices of changes to Your Account.

    Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of these TOS and become binding on You on the later of the date they are posted on the FS Comm website (www.synfone.net) or as otherwise indicated in the notice to You. You agree that You are solely responsible for: (i) making sure that Your registered email account is current and functional: (ii) checking Your registered email account regularly; (iii) checking the FS Comm Website regularly; and (iv) making sure that FS Comm communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason. Continued use of Synfone will constitute Your acceptance of the modified terms. If the terms of these TOS are amended and You do not wish to accept the modified terms, You may terminate these TOS as provided for in Section 20 entitled “Termination”.

 

25. Definitions

  1. All capitalized terms used in these TOS shall be defined in accordance with the following definitions or as otherwise defined herein.

    A. 911-Enabled Softphone” means a Softphone for which the Synfone 911 Service is supported.

    B. Account” means the numbered account established with FS Comm that contains any of the following information: Your true, accurate, current, and complete personal name or business name, administrator name, billing address, shipping address, the address where Synfone will primarily be used, the records of Yourextensions, subscriptions, and any Synfone Services that You have purchased from FS Comm. Multiple services, extensions, or End Users may be included in a single account.

    C. Account Data” means Registration Information, and the Synfone-generated logs of calling activity stored within that Account.

    D. Account Security Incident” means any actual or suspected unauthorized activity, erroneous billing, or breach or compromise of any Password Information or the security or privacy Your Synfone Plan, an Account, or any Account Data.

    E. Customer Communications” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, conferences or other communications transmitted or stored through Synfone.

    F. Embargoed Area” means a country or region that is subject to a Canadian, United States, United Nations, or European Union embargo or economic sanctions, including without limitations destinations designated by Foreign Affairs, Trade and Development Canada, the United States Government in Country Group E or Part 746 of the Export Administration Regulations (15 CFR Part 730-774), or otherwise subject to territorial sanctions under regulations administered by the Foreign Affairs, Trade and Development Canada, the United States Department of the Treasury, Office of Foreign Assets Control, or other governmental authorities with jurisdiction.

    G. End Point” means a point through which any End User might access and/or use Synfone, including without limitation all IP Desk Phones and all Softphones, instances of Synfone accessed via a mobile app or Desktop Applications, and all devices or VoIP infrastructure on which any Softphone or such instance is installed or through which Synfone may be accessed or used.

    H. End User” means the user of a virtual extension or individual extension set up within an Account or an individual assigned thereto by You or by FS Comm at Your direction or request.

    I. Export Control List” means any list maintained by the government of Canada, the United States or any other country of entities or individuals that are subject to export controls or economic sanctions, including without limitation the Foreign Affairs, Trade and Development Canada Export Control List, the United States Commerce Department’s Denied Parties List, Entity List, or Unverified List; the United States Department of the Treasury’s or the United States Office of Foreign Assets Control’s Specially Designated National List; Sectoral Sanctions List; Foreign Sanctions Evaders List; and similar lists of entities, organizations, or individuals subject to export control restrictions or economic sanctions that are maintained by other agencies of the Canadian Government, the United States Government, the United Nations, the European Union, or any other governmental authority with jurisdiction.

    J. Extension” means a digital voice extension allowing the placement of outbound calls and receipt of direct inbound calls.

    K. FS Comm Mark” means a United States and foreign trademark, service mark, copyright, or logo of FS Comm or Synfone.

    L. Intellectual Property” means mean all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (i) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (ii) copyrights and copyright registrations, and “moral” rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) other proprietary rights relating to intangible property; (v) trademarks, trade names and service marks; (vi) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (vii) analogous rights to those set forth above; and (viii) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).

    M. IP Desk Phone” means a telephony hardware device that uses VoIP to place and transmit telephone calls over an IP network.

    N. IP Rights” means any and all patents, copyrights, trademarks, service marks, trade secrets, and other Intellectual Property rights in Synfone or in any technology used in the provision thereof.

    O. Law” means any federal, national, municipal, local, state, or international law, statute, regulation, code, ordinance, or restriction; treaty or convention; or court or administrative ruling.

    P. Legal Process” means any court or administrative order, subpoena, civil investigation demand, warrant, or other official request, order, or process.

    Q. Marketing Communications” means occasional non-bulk sales-related communications, and any other communications solely or primarily designed to market products.

    R. Mobile Application” an application for mobile devices used to access Synfone Services.

    S. “Password Information” means any and all passwords, PINs, IVR PIN codes, security questions or answers, and other access-related credentials related to Your Plan Services or an Account.

    T. Plan Services” means the services purchased under these TOS or any contract between Customer and FS Comm including but not limited to Synfone Services,Synfone Fax Services Synfone Ultimate, Synfone Classic, Synfone Trunks, and any software or hardware used in conjunction with those services.

    U. Registered Address” means the address of the physical location where You will use the Synfone service, including each IP Desk Phone and each 911-Enabled Softphone.

    V. Registration Information” means any information You or Your End Users may be required to provide in order to begin using or to update Synfone, activate features, or add or modify an individual line or extension (e.g., activating an Account or End User or provisioning a device).

    W. Service Communications” means any communications related in whole or in part to the administration, support, use, Usage, development, or improvement of its services (including without limitation communications related to billing, payment, Usage, purchases and other transactions, Customer Communications, upgrades, updates, installations, new products, security issues, support cases, and/or customer satisfaction.

    X. Softphone” means an instance of any Softphone desktop software application used to access Synfone.

    Y. “Synfone Plan” means the subscription You are purchasing for Synfone Services.

    Z. Synfone Servicesmeans the voice, online meeting, video conferencing, faxing and related services, applications, and product integrations, together referred to as Services.

    AA. Taxes” means all federal, state, local, and municipal sales, international excise, value-added, transactional, regulatory, and other taxes and assessments and other governmental fees, surcharges, levies or amounts (including without limitation charges related to the recovery of amounts contributed to any contribution, universal service or other governmental fund or entity, whether or not such recovery is mandated by any Law).

    BB. Third Party Mark” means a United States and foreign trademark, service mark, copyright, or logo of a third party.

    CC.Toll-Free Minutemeans minutes of usage incurred on toll-free numbers assigned to an Account.

    DD. Usage” means Toll-Free usage, Local usage, Long-Distance usage, International Usage, and any other usage of an Account that could result in charges for calling, messaging, or other activity.

FS Comm Phone Lease Program and Rental Agreement

FS Comm LLC’s (“FS Comm”) Phone Lease Program and Rental Agreement (“Rental Agreement”) is available to those customers who have entered into an agreement for the purchase of FS Comm’s Synfone Services (“Synfone”), through a Synfone Service Agreement. This Phone Rental/Lease Program is offered and available to United States Residents only.

The terms governing this Rental Agreement are further subject to the general FS Comm Terms of Service (the “Terms of Service,” available at http://synfone.net/legal/termsofservice), the terms of which are incorporated herein by reference. To the extent there is any conflict between the Terms of Service and this Rental Agreement, the applicable terms of this Rental Agreement shall govern.

Any capitalized terms not defined herein will have the same meaning as in the Terms of Service.

Rental Services

This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from FS Comm (collectively, the “Rental Services”). FS Comm charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of your recurring bill from FS Comm, you agree to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as your payments for Synfone, as defined in your Synfone Service Agreement. FS Comm will pro-rate the Rental Fees for any equipment that is rented, for the initial period from the start of the rental period until the end of then-current billing period for Synfone, and the start of the rental will begin on the date a Rental Device is recorded as delivered by a designated courier (the “Rental Start Date”).

The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Synfone billing period in which the end of such 30 day period occurs, (b) the termination of the Synfone Service Agreement.

Upon any termination of the Rental Agreement or Rental Services, you agree to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with FS Comm’s written instructions and in accordance with the Return or Purchase Rights section of this Rental Agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If you do not return a Rental Device (subject to FS Comm’s inspection and acceptance of the returned Rental Device in its reasonable discretion) within ten business days following the termination of the Rental Services for such Rental Device, you will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current FS Comm list price shown on http://synfone.net (“FS Comm’s Web Site”), or (2) after such 12 month period, 70% of such list price, and you agree to pay the applicable purchase price.

If you wish to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Rental Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.

The Rental Fees for the Rental Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or FS Comm’s cost price, as determined by the tax law in the jurisdiction of purchase or rental.

Rental Devices Ownership; Damage and Loss

FS Comm is and will remain the owner of each Rental Device unless title is conveyed to you in writing following FS Comm’s confirmation to you of its receipt of your payment in full of the purchase price for the Rental Device. You will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines FS Comm’s ownership of each Rental Device. Upon FS Comm’s request, you will execute and deliver to FS Comm any documents or forms for protecting FS Comm’s ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code.

Upon receipt of each Rental Device, you will examine each Rental Device, and unless you notify FS Comm within five business days of your receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. In the event that any Rental Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify FS Comm in writing and pay FS Comm a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current FS Comm list price shown on FS Comm’s Web Site, or (2) after such 12 month period, 70% of such list price. This obligation does not apply to any damage to a Rental Device that is covered by the manufacturer’s warranty.

Rental Device Usage

You will ensure that: (a) each Rental Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by FS Comm, as may be updated by FS Comm or the manufacturer of the Rental Device from time to time; (b) each Rental Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Rental Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Rental Device may not be removed, defaced, or otherwise obstructed; and (e) each Rental Device will only be repaired subject to FS Comm’s express written authorization and in accordance with FS Comm’s instructions and requirements.

Return or Purchase Rights

Returns

When you return a Rental Device, you agree to return a fully functional and non-damaged Rental Device to FS Comm, at your risk and cost, and you agree that, to the extent that you do not do so, you will be obligated to pay FS Comm a thirty-five dollar ($35.00) re-stocking fee. You agree to pay all shipping and handling charges related to any Rental Device and related hardware returns.

All Rental Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Rental Device. At our discretion, we may decline your return or charge you an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.

Before returning any Rental Device or hardware that has data in its memory, please transfer all files you wish to retain to another file source. Once the hardware is returned, your files cannot be recovered and you release us of any liability for any lost, damaged, or destroyed files, data, or other information.

Purchases

You may purchase a Rental Device at any time following 12 months from the date you received the Rental Device. You agree to purchase the Rental Device for 70% of the Rental Device’s then-current FS Comm list price shown on FS Comm’s Web Site.

Other Remedies

If you are obligated to return or purchase a Rental Device subject to this Return or Purchase Rights section of this Rental Agreement, and you have not returned a Rental Device or you have defaulted in any obligation to pay the purchase price due for a Rental Device to be purchased, FS Comm may, in addition to those remedies available at law, in equity, or as otherwise set forth in this Agreement, take possession of any or all Rental Devices without demand, notice, or legal process, wherever each Rental Device may be located, and you hereby waive any and all damages occasioned by that taking of possession.

Warranty Disclaimer

EACH RENTAL DEVICE AND ANY TELEPHONE HARDWARE PURCHASED IN CONNECTION WITH THIS RENTAL AGREEMENT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND FS COMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. FS COMM MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY RENTAL DEVICE WILL BE DELIVERED TO YOU BY A PARTICULAR DATE OR IS FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF ANY RENTAL DEVICE SHALL BE BORNE SOLELY BY YOU.

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT FS COMM CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

General Terms

You authorize us to collect any payment owed by you hereunder from your payment method, as provided in your Synfone Service Agreement or the Terms of Service, as applicable. This Rental Agreement, which is subject to and incorporates by reference the Synfone Service Agreement, and the Terms of Service, constitutes the complete, final, and exclusive embodiment of the entire agreement between you and FS Comm regarding the Rental Services. In signing the Agreement, the undersigned represents to FS Comm that the undersigned has full power and authority to perform all of its obligations hereunder. This Rental Agreement is the binding obligation of the undersigned, enforceable against the undersigned in accordance with its terms.

FS Comm may, in its discretion, update or change the terms and conditions of this Rental Agreement, and the version of this Rental Agreement applicable to each Rental Device, is the version of this Rental Agreement then in effect at the start of the rental for that Rental Device, including the start of the rental for an upgrade Rental Device.

FS Comm Website Terms & Conditions of Use

1. Terms

By accessing this web site, you are agreeing to be bound by these
web site Terms and Conditions of Use, all applicable laws and regulations,
and agree that you are responsible for compliance with any applicable local
laws. If you do not agree with any of these terms, you are prohibited from
using or accessing this site. The materials contained in this web site are
protected by applicable copyright and trade mark law.

2. Use License

Permission is granted to temporarily download one copy of the materials
(information) on FS Comm LLC’s web site for personal,
non-commercial transitory viewing only. This is the grant of a license,
not a transfer of title, and under this license you may not:

modify or copy the materials;

use the materials for any commercial purpose, or for any public display (commercial or non-commercial);

attempt to decompile or reverse engineer any software contained on FS Comm LLC’s web site;

remove any copyright or other proprietary notations from the materials; or

transfer the materials to another person or “mirror” the materials on any other server.

This license shall automatically terminate if you violate any of these restrictions and may be terminated by FS Comm LLC at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.

3. Disclaimer

The materials on FS Comm LLC’s web site are provided “as is”. FS Comm LLC makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, FS Comm LLC does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.

4. Limitations

In no event shall FS Comm LLC or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on FS Comm LLC’s Internet site, even if FS Comm LLC or a FS Comm LLC authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.

5. Revisions and Errata

The materials appearing on FS Comm LLC’s web site could include technical, typographical, or photographic errors. FS Comm LLC does not warrant that any of the materials on its web site are accurate, complete, or current. FS Comm LLC may make changes to the materials contained on its web site at any time without notice. FS Comm LLC does not, however, make any commitment to update the materials.

6. Links

FS Comm LLC has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by FS Comm LLC of the site. Use of any such linked web site is at the user’s own risk.

7. Site Terms of Use Modifications

FS Comm LLC may revise these terms of use for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms and Conditions of Use.

8. Governing Law

Any claim relating to FS Comm LLC’s web site shall be governed by the laws of the State of New Jersey without regard to its conflict of law provisions.

General Terms and Conditions applicable to Use of a Web Site.

FS Comm Website Privacy Policy

Your privacy is very important to us. Accordingly, we have developed this Policy in order for you to understand how we collect, use, communicate and disclose and make use of personal information. The following outlines our privacy policy.

Before or at the time of collecting personal information, we will identify the purposes for which information is being collected.

We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us and for other compatible purposes, unless we obtain the consent of the individual concerned or as required by law.

We will only retain personal information as long as necessary for the fulfillment of those purposes.

We will collect personal information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned.

Personal data should be relevant to the purposes for which it is to be used, and, to the extent necessary for those purposes, should be accurate, complete, and up-to-date.

We will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.

We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.

Synfone Referral Program Terms & Conditions

Program Overview

The Synfone Referral Program (the “Referral Program” or “Program”) is offered by FS Comm, LLC (“FS Comm”) and provides the opportunity to refer your friends, colleagues, and associates to FS Comm and receive compensation for doing so. You are not required to be an FS Comm client to participate in the Program.

Program Details

FS Comm will award a cash or check (the “Reward”) to any Eligible Referrer (as defined below) who refers an Eligible New Client (as defined below) in compliance with these Referral Program Rules (“Rules”). The Reward will be equal to the Eligible New Client’s monthly service charges on their first billing statement up to $250 for each Eligible New Client that completes the activation process for Synfone service. The Reward will be issued to the Eligible Referrer following the processing of the Eligible New Client’s first payment for monthly service which will complete the activation process. It is the responsibility of the Eligible Referrer to submit a completed W-9 tax form to FS Comm if it is required. The program is valid only in the United States and cannot be combined with any other offers. FS Comm reserves the right to add, modify, and/or discontinue and Rewards and/or the Program and/or any requirements to receive Rewards. FS Comm’s decision with respect to all aspects of the Referral Program is final and binding.

Definition of an Eligible Referrer

To qualify as an “Eligible Referrer”:

  • you must be:
    • a legal resident of the United States
    • at least 18 years of age

Definition of an Eligible New Client

An Eligible New Client is a business that:

  • is not currently or previously has been a FS Comm client
  • is not already registered as a FS Comm lead or contact
  • signs up for a Synfone service with one or more users, extensions, trunks, and/or fax lines while this program is still active
  • completes the activation process including making their first monthly service payment
  • is placed into contact with FS Comm via the Referral Program referral submission page (http://synfone.net/referral-program)
  • becomes an active client through FS Comm directly and not via any other channel such as a referral partner, reseller, or white-label service provider that is providing service through FS Comm’s systems

General Conditions

By participating in the Program, you agree to release, discharge, indemnify, and hold harmless FS Comm, its affiliates, and advertising and promoting agencies, and all of their respective officers, directors, shareholders, employees, and agents (collectively “Released Parties”) from any liability or damages which may arise out of participation in the Program or out of the acceptance, use, misuse, or possession of any Reward attained through this Program. You further agree:

  • not to bind, create any obligation (express or implied) or negotiate prices or other terms and conditions on FS Comm’s behalf (nor represent to any person, including any prospective FS Comm client or Eligible New Client, that you have authority to do so)
  • not to make any claims regarding the FS Comm services beyond those made by FS Comm in the documentation relating to FS Comm services available at http://synfone.net.
  • that any promotion methods that you use to promote FS Comm services to prospective FS Comm clients shall be in accordance with all applicable laws and regulations. All applicable federal, state, and local laws and regulations apply.

Warranty

FS COMM MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY SERVICES OR PRODUCTS CONTEMPLATED BY THIS AGREEMENT. FS COMM DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE AND MERCHANTABILITY.
By participating in the Program, you agree, affirm, and represent that you have read and understand these Rules. In addition, you affirm and represent that you have complied with all the Rules, as well as FS Comm’s Terms of Service (as applicable), and have not committed any fraud or deception in entering the Program.

LIMITATION OF LIABILITY

NEITHER FS COMM, NOR ITS AFFILIATES, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, EVEN IF FS COMM HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY FS COMM. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS PROVISION.

About Our Returns Policy

FS Comm offers returns for most items within 30 days of receipt of shipment.

Requesting A Return

FS Comm will only authorize a return after a return request has been submitted using the appropriate method for the channel from which the item was purchased.

Return Policy

Upon receipt of a properly submitted return request FS Comm will provide a return address, a pre-paid return label, or offer a full refund without requesting the item be returned depending on several factors including the item to be returned, the reason for the return, and the policy of the channel from which the item was purchased.

If you are reporting your item as damaged, defective, or non-working, we will provide a pre-paid shipping label. All other returns will include a non-paid shipping label. Use the included return shipping label when shipping the item back to us. Once we receive your return, we will verify its contents and process your refund or replacement accordingly. If returning a defective device, our technicians will test the device, verify the presence of a defect, and then coordinate accordingly to finalize the refund or replacement. If the item has been opened, used, configured, etc. but is not damaged, defective, or non-working, it will be subject to a 15% restocking fee as well as the cost of the pre-paid shipping label that was provided.

If you are sending the item within the United States and the order is valued at $100 or more, insure the shipment for the value of the merchandise and ship your return with a signature shipping service. Items valued over $35 must be returned with a trackable shipping service. For items below $35, we suggest USPS delivery confirmation service. If a package doesn’t arrive and you don’t use a trackable method to return or if you refuse the shipment as a method of return, we may not be able to process your return.

Electronic Products

Any electronic product (VoIP phones, network devices, headsets, etc.) that did not work when it arrived, arrived in damaged condition, or is still in an unopened box can be returned for a full refund within 30 days of purchase.

FS Comm will test electronic products that are returned because they did not work when they arrived and impose a customer fee equal to 15% of the product sales price as well as the cost of the pre-paid shipping label that was provided if the customer misrepresents the condition of the product.

Any electronic product that is returned for reasons beyond FS Comm’s control such as but not limited to no longer needing the item or the item being purchased by mistake can be returned as long as the item is still in like new condition and in the manufacturer’s original packaging. However, FS Comm will impose a 15% restocking fee

Any returned electronic product that is damaged through customer misuse, is missing parts, or is in unsellable condition due to customer tampering may result in the customer being charged a higher restocking fee based on the condition of the product.

New, used, and refurbished products purchased from FS Comm are subject to the return policy unless otherwise stated in the product’s description.

Digital Products

Unless otherwise specified, software downloads and license keys are not returnable after purchase.