These terms are in addition to ComRes General Terms and Conditions and ComRes Managed Services Terms, and only apply to customers who have purchased CloudTalk VoIP, SIP, SMS or other VoIP-related services.

These Terms of Service constitute the agreement (“Agreement”) between ComRes, Inc. (“we,” “us” “ComRes”, or “Seller”) and the user (“you,” “user”, “Customer”,”Buyer” or “Subscriber”) of ComRes’ business services and any related products or services (“Service”).

This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter, switch, router or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service.

BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. EMERGENCY SERVICES – 911 DIALING

1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing” which is a limited emergency calling service available only on ComRes-certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each ComRes phone number that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described on our website page for 911 Dialing under “Features,” and below. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the ComRes 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase should include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (the “911 Sticker”). It is your responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that you use with the Service. If you did not receive a 911 Sticker with your Device, or you require additional 911 Stickers, please contact our customer care department.

1.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with ComRes the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by contacting ComRes support, or via any customer portal provided. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.

1.3 Confirmation of Activation Required. Your 911 Dialing feature may not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.

1.4 How Emergency Personnel are contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator may not have your address or your phone number. You may therefore have to provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.

1.5 Service Outages. (a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your ComRes Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that ComRes is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. 1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.

1.6 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.

1.7 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.

1.8 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.

1.9 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither ComRes nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless ComRes, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel, including if you have directed ComRes to block access to or not register certain VoIP extensions, phone numbers, or users on your service.

1.10 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.

1.11 Customer acknowledges that it may at its own risk, direct ComRes to NOT register some VoIP extensions, users or phone numbers with e911 dialing services (e.g. for a traveling phone or laptop with a softphone client).  In these situations, the customer shall defend, indemnify, and hold harmless ComRes, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) arising from those VoIP extensions, users or phone numbers from accessing 911 dialing.

2. SERVICE

2.1 Term. Service is offered on a monthly or multi-month basis as is determined in your Service activation or order form, or via our online ordering process. The term begins on the date that ComRes activates your Service and ends on the day before the anniversary date of your Term. Subsequent terms of multi-month Agreements automatically renew on the same term as the original signed agreement unless you give ComRes written notice of non-renewal at 30-90 (thirty to ninety) days before the end of the monthly term in which the notice is given.  Monthly agreements renew monthly on the date of activation (a Monthly Agreement activating on March 4th will renew for another month on April 4th).  You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month’s charges in the event that you do not provide the requisite ten-days notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.

2.2 Use of Service and ComRes-provided Device. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of the aforementioned or similar activities.

2.3 Use of Service only. For Service only customers, the Buyer is responsible for supplying, operating and supporting the Customer Premise Equipment for use with the Service. In addition, any customer-supplied equipment must be pre-approved by ComRes in writing. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.

2.4 Prohibited Uses.
(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, ComRes will provide information in response to law enforcement requests, subpoenas, court orders, to protect it’s rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, ComRes will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(c)Unlimited Plan Excessive Use.  Any ComRes VoIP plan that includes ‘unlimited’ calling is designed for general business use only.  Customers may NOT use ComRes unlimited VoIP plans for call centers, contact centers or to connect to power dialing devices, unless specifically allowed by the type of ComRes plan offered.  For ComRes unlimited VoIP plans, the Customer is limited to 1,000 aggregate minutes per user per month inclusive of both local inbound/outbound and domestic long distance calls. In the event Customer exceeds their number of minutes, ComRes has the option to (i) charge Customer at a rate of $0.039 per minute in overage fees, or terminate the service agreement with thirty (30) days’ notice.
(d) In the event of termination by ComRes for Prohibited Use by ComRes under the terms of this provision, the Customer agrees to pay ComRes any early termination fees associated with and outlined in paragraph 3.6 of this agreement.

2.5 Use of Service and Device by Customers outside the United States. Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use.

2.6 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.
(a) Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
(b) Unauthorized Usage of Device; Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

2.7 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.

2.8 Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.

2.9 Return of Device (Applies to devices rented to the Buyer by ComRes, or devices sold to the Customer by ComRes that are being returned within a trial period.  This Does Not Apply to Customers who use Devices not provided by ComRes directly).  Customers shall return the Device to ComRes within thirty (30) days of the termination of Service to receive a credit for any termination fee (See Section 3.6) provided tha* the Service is terminated within the first thirty (30) days following the activation of the Service;
* the Device is in original condition, reasonable wear and tear excluded;
* the original proof of purchase are returned with the Device, together with the original packaging, all parts, accessories, and documentation;
* prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at [email protected].  ; and
* you pay all costs of shipping the Device back to ComRes.
If you disconnect multiple lines, we will issue you a credit for all termination fees upon receipt of all Devices in accordance with the requirements set forth above.
If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact our customer care department immediately at [email protected].

2.10 Number Portability. Should you choose to move your phone service to another provider, ComRes shall release to your new service provider all telephone numbers on your account under the following conditions:
* your new service provider is able to accept each phone number;

* You have submitted a porting letter of agency (LOA) with your new provider which includes your account information, phone numbers to be ported and it has been executed by an authorized employee of your company; and

* The phone numbers requested are current working numbers on ComRes’ CloudTalk platform.

If you terminate your account with ComRes and do not port some or all of your phone numbers prior to account termination, ComRes shall maintain possession of all remaining phone numbers for use as it sees fit, including permanent termination of the phone numbers or re-allocation to other customers.

2.11 Service Distinctions. The Service is not a telecommunications service and we provide it on a best-efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

2.12 Ownership and Risk of Loss. For devices purchased from ComRes, you will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.  For devices rented from ComRes, you will bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.  Customers who return rented devices to ComRes with other than normal wear-and-tear associated with the age of device shall be charged a fee equal to the amount of damage to repair or replace the device of one of similar age.

2.13 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

2.14 No Directory Listing. The phone numbers you obtain from ComRes may not be listed in any telephone directories. Phone numbers transferred from your local phone company may be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.

2.15 Incompatibility With Other Services.
(a) Security Systems. The Service may not be compatible with security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

3. CHARGES; PAYMENTS; TAXES; TERMINATION

3.1 Billing. When the service is activated, you must provide us with a valid email address and a credit or debit card number from a card issuer that we accept. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is canceled and replaced on account of loss or theft, and you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including but not limited to:

* activation fees;

* monthly Service fees;

* international usage charges;

* advanced feature charges;

* equipment purchases;

* termination fees; and

* shipping and handling charges

Some of these fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $250. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website.

Some customers cannot pay by credit card and must pay by check.  This is permitted as long as the Customer acknowledges that ComRes CloudTalk services are billed for in advance (except for usage which is billed in arrears) and that ComRes maintains the right to approve or reject this form of payment at any time.  In these cases, when an invoice is generated (on the 1st for customer whose bill cycle starts on the 1st of each month), the invoice is due immediately, and is considered late after 5 calendar days.  The Customer acknowledges that they may receive automated late notices from ComRes that cannot be deactivated.  ComRes acknowledges that customers who pay by check cannot pay a bill this quickly and may grant them Net 30 terms upon credit approval.

3.2 Billing Disputes. You must notify us in writing within seven days after receiving your credit or debit card statement if you dispute any ComRes charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:

Customer Care Billing Department
ComRes

13798 NW 4th Street, Suite 315, Sunrise, Fl 33325

[email protected]

3.3 Payment, Collection and Termination.
(a) Payment. We only accept payment by credit/debit card or ACH transfer, unless other payment terms have been explicitly agreed to in writing by ComRes. Your subscription to the Service authorizes us to charge your credit or debit card, or process ACH transactions. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card, or ACH account, whereupon we will charge your credit or debit card (or ACH) for the termination fee, if applicable, and any other outstanding charges and terminate you Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.
(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.

3.4 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus the termination fee, if applicable, all of which will immediately become due and payable.

3.5 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.  The Buyer agrees that such taxes and fees are owed by the Buyer, and acknowledges that ComRes uses billing systems that invoices for estimated taxes and fees on a best-effort basis.  In the event that ComRes (unless by intent or neglect) has under-billed the Buyer for taxes and fees, Buyer agrees that ComRes has the right to bill for under-collected and under-billed taxes/fees at a later date.  However, in such an event, ComRes shall be responsible for paying for any interest or penalties associated with non-collection or under-collection of those taxes and fees to regulatory agencies.

3.6 Early Termination Fee. The Buyer shall be charged an early termination fee specified per phone number or service, and the FULL RETAIL PRICE for each Device supplied by ComRes if your Service is terminated for any reason (with exception to the Money Back Guaranty in paragraph 3.7) during the Term following the activation of your Service subject to the conditions below.

3.6.1 Early Termination service fees– Customers who have agreed to a term service agreement and elect to terminate the agreement with ComRes prior to the end of the agreement’s terms will owe 75% of the remaining months of the service, plus any promotional credits or waivers that were granted with the term agreement. For example, a customer with a 36-month agreement for $100.00/month that received $500 in free/credited activation fees terminates after the 26th month will owe 75% of the remaining months’ service of $100.00/month or $750.00, plus the $500.00 in promotional waived activation fees, or $1,250.00 total in early termination fees.

3.6.2 The early termination fees are owed only on the amount of services agreed to in the service agreement, not on taxes, fees, or usage, though the customer will owe the taxes and fees on any final billing by ComRes.

3.6.3 Equipment Rental – Customers who have rented ComRes equipment/devices must return the equipment within 30 calendar days of termination.  ComRes, at its sole discretion, shall charge (and the Customer agrees to pay), a fee to repair any rented device or restore it to the condition of the same devices of similar age with normal wear-and-tear.

3.7 Satisfaction Guaranty. ComRes offers a 90-day Satisfaction Guaranty. If you are not 100% satisfied with your new ComRes CloudTalk VoIP service, you may cancel your agreement up to 90 days from the activation date without early termination penalties (this only applies to the initial purchase of CloudTalk Service, and not to subsequent upgrades or changes). If the Customer opts for the Satisfaction Guaranty, all other conditions of this agreement still apply including return of equipment requirements, payment for services rendered up to the date of transferring to another service, etc.  Additional conditions are:

* you have not exceeded 1,000 minutes/month aggregate usage per user; and

* you cancel your Service within the 90-day period

* you must give 30-days’ notice and agree that you owe any unpaid invoices for the service that has been used

* you return any rented equipment

3.8 Payphone Charges. If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion, as we deem appropriate for the recovery of these costs.

3.9 Charges for Directory Calls (411). We will charge you a specified for each call made to ComRes directory assistance.

3.10 Charges for Conference Bridge Calls. We will charge you per minute for each caller who calls into your conference bride. Your Conference Bridge per minute usage fee will be the lower of (i) 3.9 cents per minute, or (ii) the per minute Conference Bridge usage fee determined in your Service Activation Form or online order form. Per minute usage fees will be calculated based on all participants on the conference bridge, including on-network and off-network participants.

3.11 Late Fees and Collections costs.  

3.11.1    Late Fees.  ComRes shall charge a 1.5% per month late charge on any balance owed that is not paid within the payment terms specified.  In all cases, unless specifically outlined in the service agreement, ComRes services are billed in advance and if not paid by an on-file credit card, are due within fourteen (14) days of the date of the invoice.

3.11.2  Collections Costs.  ComRes will notify the customer of any outstanding balance, and in the event that the Customer does not bring their account to a current status, ComRes shall use collections companies and legal services at ComRes’ sole discretion to bring the account current.  The Customer agrees to pay for any reasonable collection costs or attorney’s fees that ComRes incurs in the collection efforts for past due balances and early termination fees.

4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES

4.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:

* an act or omission of an underlying carrier, service provider, vendor or other third party;
* equipment, network or facility failure;
* equipment, network or facility upgrade or modification;
* force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
* equipment, network or facility shortage;
* equipment or facility relocation;
* service, equipment, network or facility failure caused by the loss of power to you;
* outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
* any act or omission by you or any person using the Service or Device provided to you; or
* any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.

Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.

4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL COMRES, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE — USE OR INABILITY TO — USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

4.3 Indemnification and Survival.
(a) Indemnification. You shall defend, indemnify, and hold harmless ComRes, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.

4.4 No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, AND DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER COMRES NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF COMRES’ OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY COMRES’ AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.

4.5 Device Warranties.
(a) Limited Warranty. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.
(c) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS CUSTOMERS.

4.6 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

4.7 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove you or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.

4.8 Recording Conversations. ComRes provides a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is solely responsible for ensuring that it uses this service in a way that is compliant with all laws in the relevant jurisdiction when using this feature.

5. PRIVACY

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

6. RECORDINGS AND COMMUNICATIONS MONITORING

Buyer represents and warrants that if they record or monitor telephone calls or other communications using the Services, then the Buyer shall comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. COMRES makes no representations or warranties with respect to recording or monitoring of telephone calls or other communications. The Buyer acknowledges that these representations, warranties, and obligations are essential to the Seller’s ability to provide the Buyer with access to recording and monitoring features that are part of the Services, and the Buyer further agrees to indemnify the Seller and its affiliates, for claims arising out of or related to the Buyer’s acts or omissions in connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls or other communications using the Services.

7. SMS SERVICES 

This applies to any customer who subscribes to Seller’s SMS/MMS services.

7.1  SMS Compliance. Buyer represents and warrants that if Buyer uses Seller’s SMS Texting services, then Buyer will comply with all applicable laws prior to doing so and will secure all required prior consents from SMS texting recipients prior to using the Services. Seller makes no representations or warranties with respect to the use of SMS messages, or other communications.  Buyer acknowledges that these representations, warranties, and obligations are essential to Seller’s ability to provide Buyer with access to SMS Texting features that are part of the Services, and Buyer further agrees to indemnify Seller and its affiliates, for claims arising out of or related to Buyer’s acts or omissions in connection with providing notice and obtaining consents regarding SMS messages, or other communications using the Services. Buyer agrees to providing the following to its SMS Message recipients:

SUBSCRIBER OPT-IN – Buyer is collecting and processing consumer opt-ins

SUBSCRIBER OPT-OUT – Buyer IS collecting and processing consumer opt-outs

SUBSCRIBER HELP – Buyer has implemented message reply providing Buyers on how they can contact the message sender after they reply with the “HELP” keyword.

If the Buyer uses the service in such a way that violates applicable laws regarding the use of such services that result in fines/penalties to Seller, Seller shall notify the Buyer of these costs, and the Buyer shall reimburse Seller the full cost of such fines/penalties, and any collections costs or reasonable attorneys’ fees Seller incurs in association with the reimbursement of such costs.

7.2 Message Retention. Seller may but does not have an obligation to retain messages. Seller has no liability for message storage nor for deletion of messages. You may store messages on your device. While messages remain on Seller’s network or in any storage or backup system, we may retain such messages and produce them if required by law, court order, subpoena, or other lawful process. You acknowledge, consent and agree that Seller may access, preserve and disclose your messages to comply with legal process, enforce the terms of this Rider and the Agreement, respond to claims by third parties or questions by you, and to protect others, Seller, its affiliates, its network, systems and assets

7.3 Changes to and Availability of the Service. Seller may change, upgrade, improve discontinue, suspend or modify the Service or any part, supported devices or platforms or any features at any time upon reasonable notice to Buyer. The Service may be interrupted, including for maintenance, repairs, upgrades, new releases, network or equipment failures or if Seller terminates or suspends Buyer’s use of the Service. Force Majeure events beyond our control may also affect our Service.

7.4 Suspension or Termination of Services. In addition to suspension or termination of the Services for non-payment as described in the Fraud Section of the Agreement, we may also suspend or terminate the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of the Agreement, this Rider, or any other policy relevant to the Services; (b) there is reason to believe the traffic created from your use of the Services or your End-Users’ use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason; or (d) there is any use of the Services by Buyer or End-User that in Seller’s judgment threatens the security, integrity or availability of the Services.  However, Seller will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension or termination; (y) where practicable, limit a suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic); and (z) remove a suspension as quickly as reasonably practicable after the circumstances leading to such suspension have been resolved.

7.5  Fraud. Seller reserves the right to block or limit service based on our determination of potential fraud. In the event that such a determination is made with respect to Buyer, then Seller shall inform Buyer of such blockage or limitation as soon as practical, and shall further inform Buyer of the steps needed to reinstitute service. Buyer agrees to comply with all such requests to the best of its ability. It is Buyer’s sole responsibility to properly secure and maintain network elements under its control, including IP address(es), associated equipment components, and any devices that are distributed to Buyer’s own Subscribers. If Buyer becomes aware that the security of any of its network, IP address(es), and/or any equipment components have been stolen or “hacked” by an unauthorized third party, Buyer must immediately notify Seller by calling us at 1-954-462-9600, and by sending an email with “Fraud Traffic” in the subject line to: [email protected]. When Buyer contacts Seller to report the problem, Buyer must include the account number and a description of the alleged theft or fraudulent use of Services. Failure to contact Seller in a timely manner as described above may result in suspension of Messaging services. Buyer is liable for all fraudulent use of the Services. Seller shall not issue credits for any charges resulting from fraudulent/unauthorized use that arises out of third parties hacking into Buyer’s network, IP address(es), equipment, the internet, and/or Services. This fraudulent/unauthorized use includes, but is not limited to, network or website hacking, modem hijacking, wireless hijacking or other fraud arising out a failure or any other compromise of Buyer’s hardware, software, systems, internal processes and/or corporate procedures.

7.6  HIPAA. This type of service is not HIPAA-compliant and is not designed for secure transmission or storage of personal healthcare information. You shall not use the Service to store or transmit Protected Health Information (PHI) as defined in the Health Insurance Portability & Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and accompanying regulations (collectively, “HIPAA”). If your use is for or on behalf of a Covered Entity or a Business Associate as defined by HIPAA, you must not use the Service to store or transmit PHI.

7.7 Driving Safety. Seller is not responsible for use of the Service while driving. Safe driving is your responsibility, and you should not use the Service while driving.