Agreement

These Terms of Use (“Terms”) constitute the agreement between FIBERDIAL INC (“FiberDial”) and the user of FiberDial’s communication services and any related products or services.

This agreement governs both our service and any FiberDial-approved or FiberDial-branded devices used with our service. It applies to all lines on each FiberDial account. FiberDial is sometimes referred to as “we,” “us,” “our,” or “FiberDial” and the user is sometimes referred to as “you”, “your”, “user”, or “customer”.

By subscribing to or using our service, including those services, features or functionality provided by means of mobile applications, you agree to these Terms. All information linked to these Terms is part of it, if you do not agree to the FiberDial terms, you should cancel your service immediately.

The term of this agreement will be either month to month or for the term specified in the plan you select when you initiate the service with us (the “Term”). The Term begins on your Order Date. If you or we change your plan, your Term and monthly rate may change (depending on the new plan), and additional Terms and conditions associated with that plan, may apply. Your acceptance of service from us constitutes your agreement with, and acceptance of, our Reasonable Use Policy and our Privacy Policy.

Revisions to these Terms of Service

From time to time, we may make revisions to these Terms of Service, our Reasonable Use Policy, our Privacy Policy and other policies. By subscribing to our service, you agree that we may provide to you by use of electronic communications required notices, agreements, and other information concerning FiberDial, including changes to this agreement. We may give you notice of a change by posting the change on your account web page or monthly bill, in a newsletter, by e-mail, on the relevant web page of the applicable service, or by other permitted communication. Such notices will be considered given and effective on the date posted. These changes will become binding on you on the date they are posted and we are not required to give you further notice in order for you to continue using our service. By continuing to use the service after revisions are in effect, you accept and agree to all revisions. If you do not agree to the changes, you must terminate your service immediately. When posted, this agreement supersedes all previously agreed to oral written or electronic and written terms of service, including, without limitation, any terms included with the packaging of your device. It also supersedes any written terms provided to retail customers with retail distribution, including, without limitation, any written terms in the packaging of your device. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of FiberDial services. If you continue to use our service, we will consider this your acceptance of any changes.

Governing Law

For US based customers, the law of the state of your residence will govern this agreement as well as the relationship between you and us, except to the extent such law is preempted by or inconsistent with applicable federal law. For customers outside the United States, the laws of the State of New York will govern your use of our Service under this agreement as well as the relationship between you and us, except to the extent such law is preempted or inconsistent with applicable local law. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA”), and not state arbitration law, shall govern the interpretation and enforcement of the arbitration provision in Section 13.

No Waiver of Rights

Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. FiberDial reserves all of its rights at law and equity to proceed against anyone who uses its services or device illegally or improperly. All determinations by FiberDial under these Terms and exercise of its rights are made and done in our sole and absolute discretion.

Third Party Beneficiaries

If you are not a party to this agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action.

Legal Age

You promise that you are of legal age to enter into this agreement and that you have read and understand fully its terms and conditions.

Entire Agreement

This agreement, including any future modifications to its terms, and the rates for services found on our web site or otherwise agreed to as part of the Agreement constitute the entire agreement between you and FiberDial. This agreement governs your use of our service, and the use of our services by the members of your household, and, subject to your use of one of our business plans, your employees. This agreement supersedes any prior agreements between you and FiberDial. It also supersedes all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. The terms and conditions of the Agreement are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY FiberDial, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON FiberDial. No waiver or amendment to this contract or these terms and conditions shall be binding on FiberDial unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of FiberDial.

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.

Severability

The unenforceability of any provision or provisions of the Agreement shall not render unenforceable or impair its remainder. If any provision of the Agreement is deemed invalid or unenforceable in whole or in part, the Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.

Headings

The headings in the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.

Service Distinctions

Our service may be subject to different regulatory treatment than traditional voice telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies. Our service requires high speed broadband (internet) which we may not provide. Events beyond our control may affect our service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service, system maintenance or acts of God. We will act in good faith using commercially reasonable efforts to minimize disruptions to your use of and access to our service.

Residential Use of Service

FiberDial’s residential service is a single-family residential voice service and not for use in extended or multi-family applications. It is engineered to process and deliver traffic profiles and utilization levels of our typical residential customers, calling patterns (also referred to as “normal use” by residential plan customers). “Typical” refers to the calling patterns of at least 90-95% of our customers on a particular calling plan. Normal residential traffic profiles and utilization may rise from business, multiple or extended family, community or fraudulent use. “Unlimited” does not refer to those types and levels of usage. Telephone utilization that is indicative of, or arising from, impermissible business, multiple family, community or fraudulent use, as outlined herein, on a residential class of service line, may create network congestion that will manifest itself in increased busy signals for themselves and others. FiberDial’s residential unlimited service plans and features are for single (and not extended or multi-) family residential (or personal, non-commercial) or co-branded use only. Co-branded use is defined as FiberDial’s service that is provided by a third party partner under that third party partner’s marketing brand, with or without reference to FiberDial. This means that only the account holder, residential family members (as defined below), and the phone number(s) registered with FiberDial by the account holder may use FiberDial’s residential unlimited service plans. “Residential family members” refer to those members of your immediate family who reside in your personal residence – e.g., spouse, domestic partner, parents and/or children. If your residential service plan allows you to extend the service or feature(s) to another residential or mobile number, all use under that service plan is aggregated and must conform to single (and not extended or multi-) family residential (or personal, non-commercial) or co-branded use.

Business Use of Service

If you subscribe to any of FiberDial’s business plans we provide service, features and certain equipment to you solely for use as a business user or domestic business traveler. Some FiberDial plans may allow for the use of additional devices (such as personal computers, mobile phones or other FiberDial equipment) as part of these service plans. If you subscribe to a service plan which permits use of more than one device with the same voice line, your usage will be aggregated and assessed in accordance with our Reasonable Use Policy.

The following uses are not considered normal business uses and are not permitted under business plans: autodialing, continuous or excessive call-forwarding or conferencing, inbound/outbound centralized or distributed call center activity that has a disproportional ratio between inbound and outbound calls and/or is not customer service oriented by nature, telemarketing of any kind (including, but not limited to, charitable or political solicitation or polling), fax or voicemail broadcasting, and fax or voicemail blasting, read on for more details.

Certain business plans may require you to be responsible for supplying, operating, and supporting the standard SIP-based Customer Premises Equipment for use with the service. As the subscriber and operator or administrator of this equipment, you are responsible for maintaining the security of the equipment, including but not limited to the physical and network security elements of your equipment, and any and all charges related thereto.

Some business plans may not be eligible for certain promotional offers.

Use of FiberDial’s business unlimited service plans and features must be in accordance with the Reasonable Use Policy and these Terms, and consistent with typical customers on the business calling plan (also called “normal use”). Unauthorized or excessive use beyond that normally experienced by business customers may create network congestion that will manifest itself in increased busy signals for themselves and others, and may result in service termination.

Inconsistent with Normal Use

If you use the service, any feature and/or any device (including, but not limited to, your personal computer(s), mobile phone(s) or FiberDial equipment) in a way that is inconsistent with the normal use for your service, feature or plan, you will be required, at FiberDial’s sole discretion, to (a) pay the rates for the service, feature or plan that would apply to the way you used the service, feature or device, (b) change to a more appropriate plan or (c) terminate the plan. For example, if you subscribe to one of our residential service plans, and your aggregate usage is inconsistent with normal residential or personal use, you may thereafter be required to pay our applicable, higher rates or usage rates for service for all periods in which your use of our service or the device was inconsistent with normal residential use. Unlimited voice services are provided primarily for continuous live dialogue between two individuals. Lack of continuous dialogue activity, unusual calling patterns, excessive conferencing or call forwarding, excessive numbers dialed and/or consistent excessive usage will be considered indicators that your use may be inconsistent with normal use by other FiberDial customers aggregating their usage under a similar service plan, or that impermissible use as set forth and/or in the Reasonable Use Policy may be occurring and may trigger an account review or further action by us. A non-exhaustive list of examples of uses of our service that are generally considered to be impermissible and inconsistent with normal residential or co-branded use, include, but are not limited to: use by or for others who do not live with you, use by others who are not registered FiberDial users, operating a business, even if operating from the residence.

A non-exhaustive list of examples of uses of our service that are generally considered to be impermissible and inconsistent with either single (and not extended or multi-) family residential or small or home business use, or co-branded use, include, but are not limited to: operating any other enterprise, including not-for-profit or governmental, operating a call center, resale to others, auto-dialing or fax/voice blasts, telemarketing, use without live dialogue including as a monitor, intercom or for transcription.

FiberDial evaluates customer usage in comparison to similarly situated customers, e.g., residential use under residential service plans or small business use under small business service plans or affiliate use under co-branded service offers or plans. For example, the majority of FiberDial’s unlimited calling plan customers use less than three thousand (3,000) minutes per month and do not have any unusual calling patterns. We may conclude that a customer’s aggregate usage is outside of normal use if it exceeds 3,000 minutes per month excessively.

FiberDial may also determine that abnormal, unreasonable or impermissible usage is occurring, and may take the appropriate steps described below even if the number of minutes used is not excessive, when a customer’s calling patterns during more than one month reflect excessive:

• unique numbers called;
• call lengths;
• frequency of call forwarding/transferring;
• conference calling;
• short duration calls;
• number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
• other abnormal calling patterns indicative of an attempt to evade enforcement of these Terms and our Reasonable Use Policy, or
• at a multi-residential address for more than one single residence.

FiberDial may take appropriate steps to enforce these Terms and our Reasonable Use Policy. We reserve the right to review your account and take further action, including, but not limited to, immediate suspension of your FiberDial service if account usage is beyond normal standards, impermissible or detrimental to other customers ability to use the service or adversely affects our operations. We may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers. If we determine that you are engaging in abnormal or impermissible usage, we will use commercially reasonable efforts to inform you and provide you with the opportunity to correct the improper usage. If we give you the opportunity to correct your abnormal usage patterns and you fail to immediately conform to normal use, we may exercise our right to transfer your service to a more appropriate plan, charge applicable rates or suspend or terminate your service. You acknowledge that if your service is terminated under this provision, you are subject to all applicable fees and taxes at the time your service is terminated. FiberDial’s right to terminate your account (with or for no reason) is not limited by this provision.

No O+, Operator Assisted Calling, x11 Calling

Our service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls. Our service may not support 311, 511, and other x11 services in one or more service areas. Our service may support specified dialing such as 911 and 411. 411 charges may vary by plan.

Incompatibility with other Services

Non-Voice Equipment Limitations: You acknowledge that our service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, medical monitoring equipment, certain versions of TiVo, AOL, Netflix and other streaming services, cable television services, FiOS, satellite television systems, PBX, Centrex, other private telephone networks, or computer modems. You waive any claim against FiberDial for interference with or disruption of these services and equipment, as well as any claim that FiberDial is responsible for any disruption to your business, if applicable.

Certain Broadband, Cable Modem, and Other Services: You acknowledge that our service may not be compatible with certain cable broadband service (such as AOL) and certain versions of TiVo. There may also be other services with which our service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using our service. We do not warrant that our services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our service with any particular broadband service.

Passwords

You will be asked to create a password in order to gain access to your account information on-line or when contacting a FiberDial agent by phone. Certain applications may permit you to extend use of such application to others using your password information. You agree to keep all passwords and account information confidential and are solely responsible for any liability or damages resulting from your failure to maintain that confidentiality and for all activities that occur under your password, including without limitation usage by others. You must immediately notify us if you suspect any breach of security such as loss, or unauthorized disclosure or use of your password and account.

Changes to Service Plans

Your service plan includes terms and conditions such as monthly service allowances, limitations and features, and the associated charges, all as described at https://fiberdial.com or in other communications and materials made available to you in connection with your order or changes to your service. You acknowledge that your service plan is also subject to these Terms. Our service is subject to our business policies, practices and procedures, which we can change at any time without notice. Unless otherwise prohibited by applicable law, we can also change the terms and conditions of your service plan (such as features and prices) at any time, with or without notice. If we do give you notice, it may be provided on your account’s web page or monthly bill, in a newsletter, in a mailing, by e-mail, by telephone or other communication permitted under applicable law. If your calling plan has been changed this does not affect the terms of your existing service agreement.

Virtual Numbers

International virtual numbers are not retained and may not be transferred.

Service Term

We provide our service to you indefinitely. Your service term refers to the period of time for which we will bill you periodically in advance (for example, one month or one year). The service term is the term that you selected from the options available when you signed up for our service. Your first service term begins on the Order Date. It is not the day you receive the equipment you ordered or the first time you use the service. Your service will continue until canceled by you or by us as provided for herein. Please note that your obligations begin on your Order Date and are indefinite. If you or we change your plan, your Term and monthly rate may change (depending on the new plan), and additional Terms and conditions associated with that plan, may apply. Your acceptance of service from us constitutes your agreement with, and acceptance of, our Reasonable Use Policy and our Privacy Policy.

Automatic Renewal

Your service term automatically renews for the same term you selected unless you contact us at the contact details provided on our website to cancel your service before the end of your then current service term. The renewal begins on the day after the last day of your service term.

In Plan/Out of Plan Overage & Charges

Customers with usage over an allotted amount or above typical usage will be assessed an overage fee per minute of usage.

Early Termination Fees

If a promotional or plan benefit (such as an equipment upgrade, free month or discounted pricing of service, free installation, rebate, or other incentive) is provided to you at no charge or at a specified discount based on your keeping FiberDial service for a specific length of time, then, unless otherwise specified in the offer you received, the specified period begins on the Order Date. If you terminate your service before that period of time expires, then you will be subject to an Early Termination Fee. The applicable Early Termination Fee is assessed based upon the rate plan you select and it is pro-rated based upon the number of months in the term of the agreement for your selected rate plan. Proration may not necessarily coincide with your bill cycle, and may include a balloon payment at the end of the proration schedule. You are responsible for all usage charges that are outside of the promotional or plan benefit. FiberDial rate plans will not require you to sign an agreement or commitment for a specific Term. Such rate plans will not carry an Early Termination Fee. Promotional rate plans may require an agreement or commitment for a specific Term and such rate plans will carry an Early Termination Fee.

Our Right to Disconnect 

We reserve the right to suspend or discontinue service generally, or to disconnect your service, at any time. In addition, we reserve the right to immediately disconnect your service at any time without notice under the following circumstances:

1. Unlawful or Inappropriate Use:

If we determine in our discretion that you have used our service or equipment for an unlawful or inappropriate purpose or if we determine that the use or content does not conform to the requirements in this agreement or that it interferes with our ability to provide service to you or others, then we may immediately disconnect your service at any time without notice. In addition, you shall not use the service or equipment to impersonate another person, send bulk unsolicited messages, use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from the service or use any such automated means to manipulate the service, use the service to violate any law, rule or regulation, violate any third party’s intellectual property or personal rights, or exceed your permitted access to the service. Subject to applicable law, we may, but are under no obligation to, monitor usage of the service for violations of this Agreement. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the service or FiberDial, its affiliates, directors, officers, agents and employees from harm.

2. Non-Payment:

If any charge to your payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method, or in case of any other non-payment of account charges.

3. Violation of Laws:

If we determine that you have used our service or your device in violation of laws of jurisdictions outside of FiberDial service areas.

4. Inconsistent Usage:

If we determine that your use of the service, features, or the device is, or at any time was inconsistent with normal inbound or outbound usage patterns for the type of service or plan that you have purchased, or that you have at any time used the service, feature or the device for any of these or similar activities.

5. Tampering:

If we determine that you have tampered with your device.

Our action or inaction under this section does not constitute any review or approval of your action or use or content.

Fees Upon Disconnection

1. Disconnection by You:

If you attempt to disconnect service for one or more of your lines before the end of your current service term, you will be responsible for all the charges for your current term that are applicable to the disconnected line(s), including unbilled charges, plus an Early Termination Fee per line, if applicable, as provided below. Cancellation is effective on the date you or we cancel or which you designate as the cancellation date (future disconnection date). Annual prepayment plan charges are not subject to refund. If your service is cancelled before the end of your billing cycle for any reason by you or us, there are no pro-rated refunds. Charges for any overages, payphone calls to FiberDial toll free numbers, and out-of-plan international calls or any other features and services outside your rate plan are separately billed and charged to your selected payment method after cancellation. In addition, if you obtain a product or service from us (e.g., a phone Adapter) for which a rebate or benefit was given to you that was conditioned on maintaining your FiberDial service for a specified length of time, and you disconnect service before the end of that period, you agree to pay us the applicable recovery fee and/or Early Termination Fee. On multiple line accounts, any Early Termination Fee arising from a cancellation of a line that is subject to an Early Termination Fee must either be paid upon cancellation or the remaining Early Termination Fee balance may be transferred to one of the other lines on that account. Such Early Termination Fee balance continues on the account until either the Early Termination Fee obligation has expired or been satisfied.

2. Disconnection by FiberDial Without a Reason:

If we discontinue service generally, or disconnect your service without a stated reason, you will only be responsible for the charges that have accrued through the date of the disconnection, including a pro-rated portion of the final service term charges, and, if applicable, any recovery and Early Termination Fees.

3. Disconnection by FiberDial With a Reason:

If we disconnect your service for any of the reasons listed above, you will be responsible for all charges through the end of your current service term, including unbilled charges, plus any applicable disconnection, Early Termination Fees and any recovery fees.

All Charges Owed at the Time of Disconnection will be Immediately Payable. At the time of disconnection, we will immediately charge the credit or debit card you have provided to us for payment, or initiate an electronic funds transfer if that is your payment method, for all amounts due at that time. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.

Service Disconnection on Number Transfer or “Port”

1. Single Line Accounts:

You may be able to take or “port” your current number to another service provider. If you ask your new service provider to port a number from us, we will terminate our service for that number promptly after we receive notification from our competitive local exchange carrier that the porting of your number to your new service provider has been completed successfully. We will terminate our service in this fashion even if you have not independently called us to request disconnection. Once your service is terminated in this manner, you will remain responsible for all charges and fees through the end of the current billing cycle, including any unbilled charges, as well as for any applicable Early Termination Fees or recovery fees that may be applicable as provided below. If a port is unsuccessful for any reason, then unless you independently call us to request disconnection or unless we determine to disconnect your line as stated in these Terms of Service, your service and your agreement with us will not terminate, you will remain a FiberDial customer, and you will continue to be responsible for all charges and fees associated with your FiberDial service.

2. Multi Line Accounts:

If you request your new service provider to port a number from us and you have multiple numbers assigned to your account and/or additional devices, you are required to inform us by contacting us at the contact details available on our website, of your intent to terminate all the services on your account, prior to the successful completion of the requested port or we will select the most appropriate billing plan for any remaining numbers and/or devices on your FiberDial account, and you will continue to be responsible for all the charges and fees associated with the remaining services on your FiberDial account. Once the port of the requested number is completed, you will remain responsible for all charges and fees through the end of that billing cycle.

Termination of Service

In order to terminate your service, you must contact our Customer Service, via telephone. Our Customer Service is available to assist you with account terminations on Monday-Friday 9:00 a.m. to 5:00 p.m. Eastern Standard Time. If you decide to cancel your service with us, you must contact our Customer Care Department to do so – simply disconnecting or returning your device to us will not cancel your service and you will remain responsible for all costs and fees associated with your account, including, but not limited to, monthly recurring fees for your service plan.

Equipment

To provide the Services, FiberDial may provide Equipment to Customer. All Equipment shipments are F.O.B. FiberDial’s facility. FiberDial’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided a twelve (12) month manufacturer’s warranty from the date of purchase of Equipment or Services. Customer shall be required to obtain authorization from FiberDial to return any Equipment. FiberDial will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. FiberDial will not cover replacement for lost, stolen or modified equipment. Equipment returned by Customer that is not covered under warranty may be refused by FiberDial, and Customer will be responsible to pay return shipping charges.

Lost, Stolen, Altered OR Broken Equipment

Customer shall not modify the equipment in any way without the express written permission of FiberDial. Customer shall not use the equipment except with the Services provided by FiberDial. customer is responsible for all lost, stolen or broken equipment and may be required to purchase a replacement to continue to receive services. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. Customer shall immediately notify FiberDial of any lost or stolen equipment and shall cooperate with FiberDial in all reasonable aspects to eliminate actual or potential unauthorized use of the equipment. At FiberDial’s sole option, failure to report lost or stolen equipment in a timely manner will cause customer to be responsible for all service fees accrued until the time that FiberDial is informed of the loss or theft and FiberDial is entitled to terminate the services.

Equipment Returns

Incorrectly ordered or new equipment that is still in ‘new’ condition in the original packaging will only be accepted with prior permission from FiberDial Customer agrees to pay a 20% restocking charge for any returns made under this clause.

Returns AND Adjustments

No equipment may be returned by customer for any reason without prior approval of FiberDial. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to FiberDial any equipment that is being returned. Any equipment returned to FiberDial without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation customer must immediately obtain a return material authorization from FiberDial, return to FiberDial any equipment provided, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to FiberDial an amount equal to the fair retail price of the equipment minus any payments customer had previously paid specifically for such equipment.

Device Upgrades

From time to time devices may need to be updated. Such upgrades occur automatically and last approximately 1-5 minutes. During this time, you may not be able to obtain dial tone or make and receive calls, including the ability to make 911 calls.

Tampering with the Device

You may not change the electronic serial number, equipment identifier, encryption keys, other authentication, technical data of your device, or perform a factory reset of your device without first getting our written consent.

Prohibited Devices

You are prohibited from using FiberDial services with any devices other than FiberDial-approved devices received from retailers or from us.

Disclaimer

OTHER THAN EXPRESS WARRANTIES FOR THE DEVICE IN THE DOCUMENTATION THAT COMES WITH YOUR DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY IN THIS AGREEMENT, 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, AVAILABILITY, 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”, AVAILABLE FOR THE SENDING OR RECEIPT OF CALLS OR WILL MEET YOUR REQUIREMENTS. THIS SECTION DOES NOT LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY IN THE DOCUMENTATION PROVIDED WITH YOUR DEVICE.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

Fees and Charges

FiberDial will provide customer with a monthly online/Email billing statement for the Services provided each calendar month and bill all charges invoiced to customer’s account. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. These fees and charges may change from time to time. We may introduce new products and services at special introductory pricing. At our discretion, we may change introductory pricing. Where required by law, we will send notification of invoices to your email address on file with us.

Billing Increments

We bill usage charges in full minute increments. We round partial minutes up to the next full minute. We bill fractional usage charges in full cents. We round up cents when the value is less than $0.01.

Taxes

State, federal, and local governments may assess taxes, surcharges, or fees, or all of these, on your use of our service. These charges may be a flat fee or a percentage of your FiberDial charges and may change without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for all applicable taxes, fees, or charges for your order, use, or payment for our service or your device. These amounts are in addition to the payment for your service or devices. We will bill these charges to your selected payment method according to the terms in this agreement. If you are exempt from payment of any of these taxes, you must provide us with an original certificate that satisfies the legal requirements attesting to tax-exempt status. Tax exemption will only apply from the date we receive your certificate.

Regulatory Recovery Fee

A regulatory recovery fee may be charged monthly to offset costs incurred by FiberDial in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee may apply to every phone number assigned, including toll free and virtual numbers.

Toll Free Charges

If you use any toll-free feature that we offer, we will recover from you any charges imposed on us either directly or indirectly for 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 any other way we decide is appropriate for the recovery of these costs.

Charges for Directory Calls (e.g., 411)

We reserve the right to charge you for each call you make to directory assistance except, and only to the extent that, such calls are expressly included in another fee applicable to our service.

Activation and Shipping Fees

Unless such fee is changed or waived by us as part of an offer, we will charge you a one-time activation fee of up to $250.00 per line for residential and business accounts as well as any other activation fee that may apply to the particular features or service that you select. Unless such fee is changed or waived by us as part of an offer, we will charge you our then current shipping fees per device shipped.

Early Termination Fee

You may be charged an Early Termination Fee per voice line, as applicable per the plan you select, if your service is disconnected prior to the end of your commitment period. Some plans will not require a term commitment or an Early Termination Fee.

Rebate and Other Recovery Fees

If you purchase a product or service for which a rebate or benefit is provided that is dependent upon your maintaining FiberDial service for a particular length of time, and if you disconnect service before the end of that period, you agree to pay us the applicable recovery fee. A recovery fee is equal to the difference between the price you paid to us and the advertised regular price of the product or service at the time you received it. Any recovery fees are cumulative and are in addition to any other amounts you may owe us, including any Early Termination Fees. For example, if an offer or a promotion provides a rebate for a phone adapter and discloses that a rebate recovery fee is applied if the service is disconnected prior to a minimum required period, you would be charged the applicable rebate recovery fee.

No Credit for Non-Usage or Misdialing

Neither non-usage of the service nor misdialing while using the service entitle you to a credit for, or refund of, any portion of a payment made to us.

Billing

We will charge your method of payment in advance for each monthly service plan fee and associated taxes. We will charge you in arrears for any usage and calls not covered by your plan, and immediately on disconnection for any accrued and unbilled amounts and recovery fees or Early Termination Fees (including taxes), if applicable, that are due. When you provide a check as payment, you authorize us either to use information from your check to make a one-time electronic transfer from your account as soon as the same day you make your payment, or to process your check as a check transaction in which case you may not receive your check back from your financial institution. Late payments will be subject to late payment fees and returned electronic check payments will be subject to returned check fees, each of which are further detailed as part of our fees and charges set forth in more detail. When you subscribe to our service, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. This remains your responsibility despite FiberDial’s participation in any account updater program provided by any third party account updater.

Payment

When you subscribe to our service, you authorize us to collect from your payment method, including, if applicable, Early Termination Fees, late fees, check return fees, recovery fees and any other outstanding charges. This authorization will remain valid until 90 calendar days after you terminate our authority to charge your payment method.

Collection

If we disconnect your service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection agency fees, reasonable attorney fees, and arbitration or court costs.

Late / NON-Payment

If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment, FiberDial may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the greater of twenty five dollars ($25.00) or 2.5% per month. A fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder. Returned payments are subject to a $50.00 returned payment charge.

Notices

You agree to promptly update your account information whenever your personal or billing information changes (including, for example, your name, address, e-mail address, telephone number, credit/debit card number and expiration date or other payment method information). You authorize FiberDial to send you notices and information regarding your service, including via e-mail, sms or fax. If notices are sent by us to the last email address provided by you, you agree that we have provided sufficient email notice and you waive any rights to assert failure of notice.

Billing Disputes

If you want to dispute any FiberDial charges on your statement, you must notify FiberDial within seven (7) calendar days after you receive your statement from your bank or credit card issuer. If Customer fails to provide a written statement disputing the charges within such time, Customer waives any objection and further recourse with regard to such charges.

Technical Support

FiberDial provides technical support to Customers via telephone and e-mail for the Services and the equipment provided. Support for other applications and uses is not provided or implied, FiberDial has no obligation to provide additional technical support. We assume no obligation to provide support services for any third party products or services, or for problems with our service caused by third party products or services.

E911 Agreement & Acknowledgement

CRITICAL 911/E911 SERVICE LIMITATION AND SAFETY INFORMATION

The Voice over Internet Protocol (VoIP) service (“the Service”) provided by FiberDial or by one of its independent resellers or distributors of the underlying service provider.

Please read carefully the following terms and conditions, which contain important service and safety information and identify the differences between traditional 911 wireline service and the emergency services calling associated with the Service (“E911”). If you do not agree to all of the below terms and conditions, you must decline to activate and/or use the service, and will be provided with product return options.

FiberDial’s 911 service is different from traditional wireline 911 and wireless 911, but it is a safe and reliable means of emergency dialing that may differ depending on where you are located, and the device used, when using your FiberDial service.

FiberDial customers have access to Enhanced 911 (E911), When you dial 911 your FiberDial phone number and registered address are sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary.

Customer Responsibilities

We require you to provide the physical address where you will be using our service for 911 purposes. This address is used to route 911 calls to your local emergency center. When you initially provide your physical address, there may be a delay to verify your address and activate 911 services at this address.

If you move your device to another location, you must update your address. We require at least ten days advance notice to ensure proper processing. You may register only one location at time. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. When you update your location, it can take several hours to activate 911 services at the updated address.

If you have selected a service that enables you to utilize the same telephone number for two different devices, please note that the 911 service provided for each device is different. For purposes of 911, you will have a primary line and a secondary line. The 911 service provided for each line will have the address you registered with us for that device.

Please note that 911 service will not function in the event of a broadband or power outage or if your broadband, Internet Service Provider (ISP), or FiberDial phone service is terminated.

Limitations of 911 Emergency Dialing

YOU ACKNOWLEDGE THAT 911 EMERGENCY DIALING ASSOCIATED WITH VOIP (“VoIP 911”) HAS CERTAIN LIMITATIONS, WHICH YOU MUST UNDERSTAND BEFORE ORDERING:

VoIP 911 only functions if you are using an approved VoIP Device, equipment, or software and after your order has been processed and you have received a 911 service confirmation. If you use non-approved equipment or software or attempt to access VoIP 911 service prior to confirmation, VoIP 911 may fail.

Even though you may be able to make outbound calls immediately after installing your VoIP Device, provisioning of VoIP 911 may take additional time to complete. If you attempt to make VoIP 911 calls before you have received a 911 service confirmation (or prior to completion of VoIP 911 provisioning), calls to 911 may fail or may be forwarded to a non-public, backup emergency answering service.

After VoIP 911 is provisioned, emergency personnel may not have your Registered Location and/or your phone number on file, so you should be prepared to provide that information in the event you require emergency services and dial 911.

VOIP 911 WILL NOT FUNCTION IF: Your VoIP Device fails or is not configured correctly, If your service is not working for any reason, including, but not limited to: A power outage, broadband service outage, network congestion, suspension of service because of nonpayment or late payment, or you fail to meet the minimum technical service requirements.

FOLLOWING A POWER OUTAGE, YOU MAY NEED TO RESET OR RECONFIGURE YOUR EQUIPMENT PRIOR TO BEING ABLE TO USE YOUR SERVICE, INCLUDING VOIP 911.

In certain limited cases, your VoIP 911 call will not be routed to the “traditional” wireline 911 dispatch center. Instead, it will be routed to a wireless telephone emergency dispatch center that may not normally receive 911 calls from your Registered Location. In this case, emergency personnel will not have your Registered Location and/or your phone number on file, so you should be prepared to provide that information in the event you require emergency services and dial 911.

IF THE CALL IS DISCONNECTED FOR ANY REASON, EMERGENCY PERSONNEL WILL HAVE NO WAY TO CONTACT YOU OR DETERMINE YOUR IDENTITY OR LOCATION, SO YOU SHOULD RE-DIAL 911 IMMEDIATELY.

Agreement and Acknowledgement

You agree to advise all friends, guests, family members, or any others who might place calls over the Service of these limitations herein, and understand that it is recommended that you place a warning sticker on, or near, your VoIP Device in an easily viewed location for any Service user.

You acknowledge that the services are not set up to function with outdialing systems including home security systems, fire alarm systems, credit card processing machines. medical monitoring equipment, tty equipment, and entertainment or satellite television systems. FiberDial will not be liable for interruption or disruption of such systems.

You acknowledge that e911 service is not offered on mobile and desktop apps, virtual numbers, toll-free numbers or similar service accessories or add- on service plans.

You authorize the Independent Reseller and Underlying Provider of the Service to disclose your name and address to third-party emergency services providers in order to dispatch emergency personnel to your Registered Location.

You understand that the independent reseller and underlying provider do not warrant the availability of a particular method of VoIP 911 for any location and/or the availability of VoIP 911 services.

You acknowledge that the liability of the underlying service provider, FIBERDIAL INC. (“Underlying Provider”), is limited to the amount paid for the Service for any service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set terms of service.

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE UNDERLYING PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND INDEPENDENT RESELLERS, DISTRIBUTORS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU AND/OR THOSE USED IN THE PROVISION OF THIS SERVICE BY THE UNDERLYING PROVIDER IN CONNECTION WITH THE SERVICE, FROM ANY AND ALL CLAIMS, LOSSES (INCLUDING LOSS OF PROFITS OR REVENUE), DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 EMERGENCY DIALING, AND ANY COMMUNICATION, ASSISTANCE OR INSTRUCTION THAT YOU MAY RECEIVE FROM THE UNDERLYING PROVIDER, ITS EMPLOYEES, INDEPENDENT CONTRACTORS OR AGENTS, WHO MAY ATTEMPT TO CONTACT YOU DIRECTLY IN THE EVENT OF AN INCOMPLETE 9-1-1 CALL.

You acknowledge that you are of legal age to consent (i.e. 18 years of age or older) to the terms and conditions of service. You acknowledge your receipt of these VoIP 911 limitations, and that you understand and agree to them.

Prohibited Use, Unlawful Use and Inappropriate Conduct

Lawful Purposes Only

You may use our service and your device only for lawful, proper and appropriate purposes. You may not use our service or your device in any way that is illegal, fraudulent, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, fraudulent, improper or inappropriate uses of our service and/or devices: threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, and/or invasive of another’s privacy, or any similar behavior.

In addition, you shall not use our service or your device for: auto-dialing, continuous or excessive call forwarding or conferencing, inbound/outbound centralized or distributed call center activity that has a disproportional ratio between inbound and outbound calls and/or is not customer service oriented by nature, telemarketing (including charitable or political solicitation or polling), fax or voicemail blasting, for continuous or excessive chat line access, or use of an open telephone line as a monitor, intercom or transcription service.

You shall not use our service or our device to: impersonate another person, send bulk unsolicited messages, use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from our service or use any automated means to manipulate our service, violate any law, rule or regulation, violate any third party’s intellectual property or personal rights, or laws on obtaining third party consent for call recording, Infringe the rights of others, or interfere with the users, Agents, services, or equipment of the network, exceed your permitted access to our service.

Monitoring

We may monitor the use of our service for violations of these Terms. We may remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our service or FiberDial, its parent, affiliates, directors, officers, agents, and employees from harm.

Providing Information to Authorities and Third Parties

If we believe that you have used our service or your 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 consent to our forwarding of any such communications and information to these authorities. In addition, you hereby agree that we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:

• in response to law enforcement or other governmental agency requests.
• as required by law, regulation, rule, subpoena, search warrant, or court order.
• as necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both.
• To protect FiberDial’s rights and property.
• in emergency situations where disclosure of such information is necessary to protect FiberDial customers or third parties from imminent harm.

Use of Service and Device Outside the United States

Our service is designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is not within a FiberDial service area, or your ISP or broadband provider places restrictions on using VoIP services, we do not claim that they will allow you to use our service. You will be solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service because of your use of our service. If you ship a device outside the United States for use in another country, you are solely responsible for determining and adhering to compliance with all applicable customs, import/export, regulatory, tax (including VAT) and other laws and costs/expenses and penalties regarding the transport, distribution and use of such device and the service.

No Transfer of Service

You are the sole account holder for the service for all purposes and are solely responsible for all charges incurred on the account, regardless of changes to the account, including billing information. You are also responsible for all usage and charges on all devices and features, as well as charges for aggregated domestic and international usage made by you and others you have authorized to use your service. You may not resell or transfer your service or account or provide a telephone service to anyone else by using your FiberDial service or features of your FiberDial service without first getting our written consent. In no event may your account be assigned to a non-U.S. resident. If you acquire a device from someone other than FiberDial or that previously was assigned to another’s account, FiberDial disclaims all warranties, damages and liabilities you may incur by virtue of your use of such device, including but not limited to, the warranties of merchantability, fitness for a particular purpose and non-infringement. Attempted assignments of service and accounts through changes in account and billing information does not relieve you of liability and responsibility for use of the service and features, or for charges on the account unless we have consented to the assignment in writing or unless we actively facilitate the assignment as evidenced in our Customer Care records. You may elect to authorize others to access your account by contacting us.

No Alterations or Tampering

Any use of the Services or any other action that causes a disruption in the network integrity, or threatens or compromises the security of FiberDial, its vendors, or the Services whether directly or indirectly, is strictly prohibited and permits FiberDial to terminate the Services and the Agreement without prior notice at the sole discretion of FiberDial.

If you copy or alter or have someone else copy or alter the firmware or software of the device or any mobile application in any way that facilitates a compromise of our service, you are responsible for any charges that result and damages incurred by FiberDial as a result. You may not attempt to hack or otherwise alter or disrupt our service or make any use of our service that is inconsistent with its intended purpose.

Theft of Service

You may not use, obtain or facilitate use of our service, directly or indirectly through others, in any manner that avoids FiberDial policies and procedures, including an illegal or improper manner. You will notify us immediately if your device is stolen or if you believe that your service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of service. If you fail to notify us in a timely manner, we may disconnect your service and levy additional charges on you as permitted under these Terms. Until you notify us, you will be liable for all use of our service using a device stolen from you and any stolen, fraudulent, or unauthorized use of our service whether or not it involves a stolen device.

Unauthorized Usage of Device, Firmware or Software

Unless your plan specifically provides you with a license to use our firmware or software, you have not been granted any license to use the firmware or software we use to provide our service or that we provide to you in providing our service, or that is embedded in your device, or accessible via mobile application other than a nontransferable, revocable license to use the firmware or software in object code form (without making any modification to it) strictly according the terms and conditions of these Terms. You also agree that you will use your device exclusively for our service. We will not provide any passwords, codes, or other information or assistance that would enable you to use your 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 warrant that you possess all required rights, including software or firmware licenses, or both, to use any interface device that we have not provided to you. You may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software. You shall not use the mobile application software to develop any software or other technology having the same primary function, including but not limited to using the software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the software.

Vanity Number Porting

You may not obtain vanity numbers from FiberDial and then attempt to sell, resell, or actually sell or resell such vanity numbers.

Prohibited Unsolicited Faxing Advertisements

We strictly prohibit using our service or your device for sending unsolicited advertisements to fax machines. Such advertisements are also known as “junk faxes” and are legally prohibited under the Junk Fax Prevention Act and the Telephone Consumer Protection Act. Sending advertisements to a fax machine is only allowed if a permission to receive them was granted or under certain conditions where a business relationship was previously established. Fax advertisements falling under those conditions must include an opt-out notice and instructions. More relevant information is available on the FCC’s web site. If we determine in our sole discretion that you have used our service or equipment for sending advertisements to fax machines in a manner that is not permissible by law then we may immediately disconnect your service at any time without notice. Disconnecting your service in such a case does not absolves you from any responsibilities to the faxes you sent. You are fully responsible, at all times, for all your use of our service or your device to send any type of faxes or other communication. You may be subjected to private lawsuits brought against you if you send fax advertisements that do not comply with permissible legal regulations. Such lawsuits may carry a penalty of up to $500 in damages for each and every violation. We may provide information about the faxes you sent and any other relevant information to appropriate authorities and third parties as described above.

Business SMS use restrictions

The following policies apply to our Business SMS/MMS (SMS) service offering, whether sent via the FiberDial App, a third party application, or via the FiberDial API.

FiberDial offers person to person communications and cannot be used for High Volume Messaging or automated messaging (e.g. calendar reminders, etc.) Business SMS must also adhere to all of these other Terms and Conditions as related to the service.

• Send and receive no more than 15 to 60 messages per minute per number
• Send and receive no more than 1,440 messages in a 24 hour time period per number
• No more than 75 unique recipients per outbound message
• No more than one number can be used per seat/user to send and/or receive Business SMS

Accounts in violation of FiberDial’s or underlying carrier rules and regulations may be subject to reduced deliverability of messages, suspension of service, or termination of service in addition to fines and other penalties passed through FiberDial by underlying carriers.

It is your responsibility to be aware of any additional restrictions when sending SMS messages, and to adhere to any and all policies related to the recipient(s) number.

Termination of the Services

Any use found to be inconsistent with this restriction will result in termination of the Services.

FiberDial reserves the right to immediately terminate or modify the Services of any Customer using Unlimited Service Plans if FiberDial determines, in its sole discretion, that Customer is not using the Unlimited Services Plan for Customer’s reasonable business use this includes service under contract.

AS IS Services

You agree that our services are provided “as is,” except to the extent provided below.

No Warranties on Service or Software

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. In addition, we do not warrant that the service, software or device will be without failure, delay, interruption, error, omission, degradation of voice quality, or loss of content, data, or information. Neither FiberDial nor its officers, directors, employees, affiliates or agents, or any other service provider or vendor who furnishes services, devices, or products to the customer for our service will be liable for unauthorized access to our or your transmission facilities or premises or equipment or for unauthorized access to, or alteration, theft, or destruction of, customer’s data files, programs, procedures, or information through accident, fraudulent means, devices, or any other method, regardless of whether such damage occurs as a result of FiberDial’s or its service provider’s or vendors negligence. Statements and descriptions concerning our service or device, if any, by FiberDial or FiberDial’s agents or installers are informational and are not given as a warranty of any kind.

No Credit Allowances for Interruption of FiberDial Service

We will not give you credit for any interruption of FiberDial service, including international calling services.

Limitation of Liability

We will not be liable for any delay or failure to provide service, including 911 Dialing, or blocking of an emergency number (e.g., Police, Fire Department, Hospital) at any time or any interruption or degradation of voice quality that is caused by any of the following:

• Third party omission: an act or omission of an underlying carrier, service provider, vendor or other third party.
• Equipment failure: equipment, network, or facility failure.
• Equipment modification: equipment, network, or facility upgrade or modification.
• Equipment relocation: equipment or facility relocation.
• Equipment shortage: equipment, network, or facility shortage.
• Force majeure: events including, but not limited to, acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism, and government actions.
• Loss of power: service, equipment, network, or facility failure caused by the loss of power to you, or to us.
• Outages: outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of service caused by any third party.
• Acts or Omissions: any act or omission by you or any person using our service or the device provided to you.
• Other causes: 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.

Disclaimer of Liability for Damages

Our aggregate liability under this agreement will in no event exceed the service charges with respect to the affected time period. In NO EVENT will FiberDial, its officers, employees, affiliates or agents or any other service provider who furnishes services or devices to you in connection with our service be liable for any 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 a device or the service, including inability to get or receive dial tone, access emergency service personnel through the 911 dialing service, or delays in the delivery of emergency services accessed through the 911 dialing service, or to obtain emergency help. FiberDial further disclaims any and all liability arising out of any resale, reuse, or refurbishment of the device without FiberDial’s prior authorization. These limitations apply to claims founded in breach of agreement, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not we were informed of the likelihood of any particular type of damages. Additionally, FiberDial, its officers, employees, affiliates or agents or any other service provider who furnishes services or devices to you in connection with our service will not be responsible or liable for any content, data, or communications you may receive while using our service or your device; and resulting damages, losses of any kind, disturbances, or waste of time or supplies, including but not limited to unsolicited fax advertisements (“junk faxes”), marketing phone calls, or automated mass text messages. It is your sole responsibility to report such content and the offending communicator to the appropriate authorities and seek their relevant advice and support or to pursue direct legal actions against the offenders. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you however, with respect to 911 dialing and other aspects of FiberDial’s service, there may be federal or state laws that exclude such damages and provide other protections to FiberDial which FiberDial does not waive or limit in any manner whatsoever.

Disclaimer of 911 Liability

We disclaim all responsibility for the conduct of local emergency response centers. We do not have any control over any local emergency response center. Therefore, we are not responsible for whether they answer calls using our 911 dialing service, how they answer these calls, or how they handle them. We rely on third parties to assist us in routing 911 dialing calls to local emergency response centers. We are neither liable nor responsible if the data used by a third party to route calls is incorrect or produces an erroneous result or results in the delay of the delivery of emergency services. Neither FiberDial nor its officers or employees may be held liable for any claim, damage, or loss, fine, penalty, cost, and expense (including, without limitation, attorney fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, 911 Dialing, or your device.

Limit on Total Liability

Our total liability under this agreement will not exceed the service charges for the affected time period. FiberDial will not be responsible for third party fees or charges, including but not limited to, banking fees, overdraft fees, wireless or cellular fees, or other wireline, broadband or internet service charges, technician charges, or other similar charges.

Indemnification

Customer agrees to defend, indemnify, and hold harmless FiberDial, its officers, directors, employees, affiliates and agents, and any other service provider who furnishes services to you for our 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 our service, relating to our service, including, without limitation, 911 Dialing, or your device(s), or use of our service by you or others using your account (whether or not such usage is expressly authorized by you).

Waiver of Claim or Causes of Action

You waive all claims or causes of action arising from or relating to our 911 dialing service unless the claims or causes of action arise from our gross negligence, recklessness, or willful misconduct.

Content

You are liable for all liability that may arise from the content transmitted to any person, whether or not you authorize it, using your service or device(s). You promise that you and anyone who uses your service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using our service and the device.

Account Information

You are liable for all damages and liability that may arise from your failure to provide true, accurate, current and complete information and to maintain and promptly update such information. If you provide any information that is, or we have reasonable grounds to suspect is, untrue, inaccurate, misleading, not current or incomplete, we may suspend or terminate or refuse any and all current or future use of the service, or any portion thereof.

PLEASE READ THIS CAREFULLY, IT AFFECTS YOUR RIGHTS

It is important that you read this entire section carefully. This section provides for mandatory resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Any arbitration under this agreement will take place on an individual basis, class arbitrations and class action lawsuits are not permitted.

Arbitration

FiberDial and you agree to arbitrate any and all disputes and claims between you and FiberDial. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to:

• Disputes and claims arising out of or relating to any aspect of the relationship between you and FiberDial, whether based in agreement, tort, statute, fraud, misrepresentation or any other legal theory.
• Disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising).
• Disputes and claims that may arise after the termination of this agreement.
• Disputes and claims that are currently the subject of individual litigation.
• Disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class.
• Disputes and claims concerning the scope of this arbitration provision.

References to ”FiberDial”, “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the service under these Terms or any prior agreements between you and FiberDial.

Informal Resolution of Disputes

Our Customer Care Department can resolve most customer concerns quickly and to the customers satisfaction. If you have a dispute or claim against us, you should first contact the FiberDial Customer Care Department (see contact details at https://fiberdial.com/contact-us). In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved through mandatory arbitration as set forth below.

Formal Notice of Disputes

A party who intends to seek arbitration must first send to the other party a written Notice of Dispute. A Notice of Dispute must be sent to FiberDial by certified mail addressed to: FiberDial, Attn: Legal Department (see address on our website https://fiberdial.com/contact-us) with a copy by email to support@fiberdial.com. A Notice of Dispute must be sent to you by certified mail or overnight express delivery with verification at the last mailing address that you registered with FiberDial and a copy by email to you at the last email address you registered with FiberDial. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and FiberDial do not reach an agreement to resolve the dispute or claim within thirty (30) calendar days after the Notice of Dispute is received, you or FiberDial may commence an arbitration proceeding by downloading or copying a form from the website of the American Arbitration Association (“AAA”) at https://www.adr.org. The amount of any settlement offer made by you or FiberDial shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or FiberDial is entitled.

Arbitrator and Arbitral Rules

The arbitration shall be administered by the AAA. You may contact the AAA by telephone at 1-800-778-7879 or by mail at 120 Broadway, Floor 21, New York, New York 10271. The arbitration shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

Location and Procedure of Arbitration

Unless you and FiberDial mutually agree otherwise, all hearings conducted as part of the arbitration shall take place at a location, convenient to you, in the county or parish of your billing address. If your claim is for $10,000 or less, you or FiberDial may request that the arbitration be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim is in excess of $10,000, the right to a hearing will be determined by the AAA Rules.

Fees and Costs

You are responsible for all costs that you incur in the arbitration, including, but not limited to, attorneys or expert witness fees. If a party elects to appeal an award, the prevailing party in the appeal shall be entitled to recover all reasonable attorney fees incurred in that appeal. Notwithstanding anything to the contrary in this arbitration provision, FiberDial shall pay all fees and costs which it is require by law to pay.

Waiver of Jury Trial

You and FiberDial agree that, by entering into this agreement, you and FiberDial are waiving the right to a trial by jury.

Waiver of Class Actions

You and FiberDial agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND FiberDial AGREE THAT YOU AND FiberDial MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. You and FiberDial agree that, unless you and FiberDial agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Statute of Limitations

State laws may limit the time period after which you may assert a claim, in some cases you may be required to assert a claim within one (1) year after the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to the above section of this agreement). Your failure to timely assert your claim may result in a waiver of your legal rights.

Exceptions to Arbitration Agreement

You and we agree that:

• you may take your dispute to small claims court, if your dispute qualifies for hearing by such court.
• if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement.
• you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction.
• any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction.
• either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or FiberDial, pending the completion of arbitration.

Modification of Arbitration Provision

Despite any other provision in this agreement to the contrary, if FiberDial makes any substantive change to this arbitration provision, you may reject any such change by sending us written notice within thirty (30) days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.

FiberDial service uses, in whole or in part, the public internet, the public switched telephone network, and third-party networks to transmit voice, fax, chat, video and other communication services.

FiberDial is not liable for any lack of privacy which you may experience from using our service. Please refer to our Privacy Policy at https://fiberdial.com/privacy-policy for additional information, such as how we use your information and how you can opt out of receiving marketing messaging. Your acceptance of service from us constitutes your agreement with, and acceptance of, our Privacy Policy.

You authorize us:

• to investigate and/or review your credit history, including requesting a consumer report, both when you sign up for our service and at any time after you sign up, for any purpose, including, but not limited to, your initial qualification for an account, your continued compliance with the terms of your account and general customer base evaluation purposes not specifically associated with your account.
• to share credit information about you with credit reporting agencies. Upon your request we will inform you whether or not we have requested a consumer report, and if a report was requested, the name and address of the consumer reporting agency that furnished the report.
• to monitor Customer’s use of Service.

In addition, you acknowledge FiberDial may monitor calls for quality assurance, training and testing purposes.

Electronic Recording

Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that FiberDial will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws. FiberDial is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the Customer, whether legal or illegal, and Customer will indemnify and hold FiberDial harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable electronic recording laws.

Export controls

You agree to comply fully with all relevant export laws and regulations of the United States, and applicable export laws that apply in Customer’s location(s), including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of our service or any direct product to any destination, company, or person restricted or prohibited by U.S. export controls.

Our website content, our materials, services, logos, software, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions.

You are not allowed to remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the website content, our materials, or the mobile application software. Infringement by you may result in civil or criminal prosecution.

Third parties may make materials available using our service. Third parties may not be within our control. We do not review the content posted on our service to see if it includes illegal or impermissible content, nor are we under any obligation to conduct any review. However, we respect the copyright interests of others. It is our policy not to permit materials we know infringes another party’s copyright to remain on our service. If you believe any materials on our service infringe a copyright, you should give us written notice.

Contents of Notice

Your notice should at a minimum contain the following information:

• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
• identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
• information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
• a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
• a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All DMCA notices should be sent to our designated agent as follows: FiberDial, Attn: Legal Department, (see address on our website https://fiberdial.com/contact-us).

Software Copyright

Customer has no right to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create any Software, except to the extent that Customer is expressly permitted to decompile the Software under applicable law and Customer notifies FiberDial of Customer’s intention to decompile the Software and Customer’s reason to do so.