Terms and Conditions
Internet Voice Service
SUBSCRIBER AGREEMENT and TERMS OF SERVICE
This is an Agreement between SMR Advisors, Inc. (SMR)
and you, by which you request and agree to subscribe for TalkParade Enhanced Internet
Voice Service, and SMR agrees to furnish the Service to you. When we use the terms
"we," "us," "our" or "SMR" we mean SMR Advisors, Inc. or any of its third party providers.
When we refer to "you," we mean not only you personally as the subscriber to the Service,
but also all other persons who have access to your premises, facilities or equipment
and who are users of the Service. When we use the term "Service" or "Services," we
mean the TalkParade Enhanced Internet Voice Service and any related products or services.
This document sets forth the terms and conditions under which the Services are being
offered, and describes the responsibilities of SMR to you and your responsibilities
to SMR. This Agreement governs both the Service and any Equipment that is used
to access the Service. By activating the Service, you acknowledge that you have
read and understood, and you agree to, the terms and conditions of this Agreement.
You also represent that you are of legal age to enter into this Agreement and to become
bound by its terms.
or "Activation" means the commencement of TalkParade Enhanced Internet Voice Service.
Activation is deemed to occur immediately at such time as SMR or its third party provider
turns up the Service, when the Service is available to be used and calls are able
to be made and received via the Equipment provided by us, regardless of whether any
calls subsequently are made or received.
Internet Service: Internet access which is delivered over high speed cable, DSL, T1
lines, or other means of high-speed access.
An electronic device that can store, receive and process data and which has the minimum
hardware and software requirements necessary to receive Broadband Internet Service.
All equipment owned by SMR or purchased by you from SMR which is delivered to and
installed in your home or other premises. When we use the term "Equipment," we mean
such instruments as an internet protocol ("IP") phone, Analog Telephone Adapter, Multimedia
Terminal Adapter, Cisco ATA-186, SPA 2000, Cable/DSL Router or any other IP connection
device used in conjunction with the Service, together with certain software necessary
to receive the Service. We may also mean all wire and the Modem, unless those items
are purchased separately.
A device that converts and transmits data over cable or DSL lines.
You and every other individual, whether or not an actual member of your household,
who uses the Service, regardless of whose name the account is in or who owns, rents
or uses the premises in which the Service is located.
will provide you with voice Service so long as you possess and maintain in good operating
order (i) any Equipment furnished to you by us; (ii) a cable Modem, DSL Modem or T1
line; and (iii) Broadband Internet Service. You acknowledge that SMR is not an internet
service provider ("ISP") and that the installation and cost of Broadband Internet
Service is your responsibility separate from the Service provided under this Agreement.
provided by us to be used with SMR Service in the United States carries a 30-day limited
warranty. Within the first 30 days, if the original SMR-provided Equipment malfunctions
and if you so request, new Equipment will be sent to you. You will be billed for the
replacement Equipment; however, upon return of the original Equipment and after the
device has been tested to determine that it malfunctioned and was not damaged by your
misuse, you will be refunded the cost of the new Equipment. After the initial 30 days,
you will not be eligible to receive a refund for any replacement Equipment. For Cable/DSL
Routers furnished by us, the same 30-day limited warranty shall apply. After the expiration
of the first 30 days, please contact your equipment manufacturer for further details
applicable to Cable/DSL Routers. For all Equipment furnished by us, if you receive
cartons and/or any item(s) of Equipment that are visibly damaged, please note the
damage on the carrier's freight bill or receipt and keep a copy. Keep the original
carton, all packing materials and parts intact and contact SMR's customer care department
list of available Services and the costs of each depend upon the specific TalkParade
Plan that you select. All TalkParade Plans include: local, regional and long distance
calling within the United States and to Canada, Caller ID, Call Waiting, Call Waiting
Disable, Call Waiting with Caller ID, Caller ID Block, Call Forwarding, Call Transfer,
3-Way Calling, and Return Call. Depending upon the TalkParade Plan that you select,
Voice Mail may be included or may be available for an additional fee. Other Enhanced
Services, such as Second Line, Fax Line, Virtual Phone Number and Toll-Free Number,
are available for an additional fee. The rates for international calling depend upon
the location dialed. The Service does not support directory listed numbers, operator-assistance,
pay services or third-party billing (except calling cards or prepaid services).
of Service and Equipment:
Residential Use: If you sign up for a Residential usage plan, then the
Service and Equipment are being provided to you for your personal, residential, non-business
and non-professional use. This means that you are not using the Service or the
Equipment for any commercial or governmental activities, profit-making or non-profit,
including but not limited to telemarketing, call center services, autodialing or predictive
dialing services, home office, business, sales, telecommuting, continuous or extensive
call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent
with normal residential usage patterns. This also means that you are strictly prohibited
from reselling or transferring the Service or the Equipment to any other person for
any purpose, or make any charge for the use of the Service or Equipment, without our
express written permission obtained in advance. We shall have the right to determine,
in our sole discretion, what constitutes improper Personal Residential Use of our
Service. If you violate any of these restrictions, we may charge you a higher
rate or impose per-minute charges for all Services used during the period in which
you were in violation. We also reserve the right to disconnect without notice
any prohibited transmissions or uses, or to immediately terminate or modify the Service
if we determine, in our sole discretion, that your Service is being used for non-residential
or commercial use.
Use: If you sign up for a Business usage plan, then by entering into that form
of Agreement, you are subscribing for the Service and Equipment as a small business
user. Your rights to use the Service are subject to certain limitations. You are not
permitted to use the Service or Equipment for telemarketing, autodialing or predictive
dialing services, continuous or extensive call forwarding, fax broadcast, fax blasting
or any other activity that would be inconsistent with normal business usage patterns.
This also means that you are strictly prohibited from reselling or transferring the
Service or the Equipment to any other person for any purpose, or make any charge for
the use of the Service or Equipment, without our express written permission obtained
in advance. We shall have the right to determine, in our sole discretion, what constitutes
improper use of our Service. We reserve the right to disconnect without notice any
prohibited transmissions or uses, or to immediately terminate or modify the Service
if we determine, in our sole discretion, that your Service is being used in violation
of the terms of this Agreement.
Prohibited Uses: In addition to the specific uses prohibited in the immediately
preceding subparagraph, you agree not to use the Equipment except with the Services
provided by SMR or its providers hereunder. Any use of the Services or any other action
that causes a disruption in the network integrity of SMR or its vendors, whether directly
or indirectly, is strictly prohibited and could result in termination of the Services.
You understand that neither we nor any of our vendors are responsible for the content
of the transmissions that may pass through the Internet and/or the Services. You agree
not to use the Services or Equipment or permit the Services or Equipment to be used
for transmission, receipt or possession of any communication or material of any kind
which, in our sole judgment would encourage or constitute a criminal offense, give
rise to a civil liability, or otherwise violate any applicable local, state, national
or international law. We reserve the right to terminate your service immediately and
without advance notice if we believe, in our sole discretion, that you have violated
the above restrictions. In such event, you will be responsible for the charges to
the end of the month in which your Service ends, including without limitation unbilled
charges, plus a disconnect fee ($119), all of which immediately become due and payable.
You are liable for any and all use of the Service and/or Equipment by any person,
and you agree to indemnify and hold us harmless against any and all liability for
any such use that fails to comply with this Subsection. The complete SMR Acceptable
Use Policy is printed as Annex A at the end of this Subscriber Agreement.
Outside the United States: One of the prime benefits of your Service is that
you can use it to call from within the United States to other countries. However,
we do not presently support the Service to users located in other countries. If you
remove the Equipment to a country other than the United States and use the Service
from there, you do so at your own risk, including the risk that such activity violates
local laws in the country where you do so. You are liable for any and all use of the
Service and/or Equipment by any person making use of the Service or Equipment provided
and Other Intellectual Property: The Service and Equipment, together with any
firmware or software embedded in the Equipment or used to provide the Service, or
furnished to Subscriber in conjunction with the Service or Equipment, and all information,
documents and materials on any SMR website(s) are protected by trademark, copyright
or other intellectual property laws and international treaty provisions. All
websites, corporate names, service marks, trademarks, trade names, logos and domain
names (collectively "Marks") of SMR are, and shall remain, the exclusive property
of SMR. Nothing in this Agreement shall grant you any ownership right or license to
use such Marks. You acknowledge that you are not given any license to use the firmware
or software embedded in the Equipment or used to provide the Service, or furnished
to Subscriber in conjunction with the Service or Equipment, other than a nontransferable,
revocable license to use such firmware or software (without making any modification
thereto) strictly in accordance with the terms and conditions of this Agreement. You
also agree that the Equipment is exclusively for use in connection with the Service.
If you decide to use the Service through some other kind of device not provided by
SMR, which SMR reserves the right to prohibit in particular cases or generally, you
warrant and represent that you possess all required rights, including software and/or
firmware licenses, to use that alternate device with the Service, and you will indemnify
and hold harmless SMR against any and all liability arising out of your use of such
alternate device with the Service.
Tampering With Equipment: You agree not to change the electronic serial number,
MAC address or equipment identifier of the Equipment, or to perform a factory reset
of the Equipment, or to otherwise modify the Equipment in any way without express
permission from SMR in each instance. SMR reserves the right to terminate your Service
should you tamper with the Equipment. If this happens, you will be responsible for
the full month's charges to the end of the current month, including without limitation,
unbilled charges, plus a disconnect fee of $119 per Cisco ATA-186, SPA 2000 or like
device, all of which immediately become due and payable.
of Service: You agree to notify SMR immediately, in writing or by calling the
SMR TalkParade customer support line or by submitting an email to Customer Care on
the SMR website, if the Equipment is stolen or if you become aware at any time that
your Service is being stolen or fraudulently used. You must provide your account number
and a detailed description of the circumstances. Failure to do so in a timely manner
may result in the termination of your Service and additional charges to you. You will
be liable for all use of the Service even through Equipment stolen from you, including
any and all stolen Service or fraudulent use of the Service or Equipment, as well
as the value of the Equipment itself.
of Equipment Upon Termination of Service: You acknowledge and agree that if
the Equipment is furnished to you without separate or additional charge, it is being
done so in consideration for your subscribing for the Service and continuing to pay
for the Service that you use. Upon termination or other discontinuance of the Service
for any reason, except for Equipment which you have purchased from us, you agree to
return to SMR, within fourteen (14) days, all Equipment which has been furnished to
you by us. You must obtain a Return Merchandise Authorization (RMA) from SMR (see
Subsection 5(d) below for instructions) prior to returning any Equipment. The Equipment
must be returned undamaged, in its original packaging and with all original documentation.
Upon termination or other discontinuance of the Service for any reason, pending SMR's
receipt and inspection of the Equipment, SMR initially will impose a charge against
your account in the amount of $119 per Cisco ATA-186, SPA 2000 or like device. Upon
your return of the Equipment in compliance with this section, and upon SMR's receipt
and verification of the condition of the returned Equipment, you will receive a credit
for up to the full amount of the $119 per device charge. The final determination of
the condition of each item of returned Equipment shall be within the sole judgment
of SMR. In the event that you purchased your Equipment from SMR or you otherwise
utilized your own equipment to access the Service, the foregoing terms and conditions
of this subparagraph 2(d)(vii) shall not apply.
911 Service: You acknowledge and understand that that the Service does not include
"911" emergency dialing. EQUIPMENT AND SERVICES DO NOT SUPPORT 911 OR OTHER EMERGENCY
FUNCTIONS. In the event of an emergency, you will not be able to use the Equipment
or the Service to summon assistance through the 911 system. In case of emergency,
you will have to use a different instrument that reaches the 911 emergency system
in another way. You agree that you are responsible for informing any household residents,
guests and other third persons who may be present at the physical location where you
utilize the Service, that no traditional 911 or E911 dialing is available from your
TalkParade Enhanced Internet Voice Service and the Equipment.
of Service Due to Power Failure or Internet Service Outage: You acknowledge and understand
that the Service does not have its own power supply, and in the event of a power failure,
the Service will not work without an independent power supply. Accordingly, just as
cordless phones will not work without electrical power, the Service will not work
during an electrical power outage at the premises where Service is provided. The Service
also will not function if an electrical power outage affects SMRs or its third party
providers network or the function of your Broadband Internet Service. The Service
will resume only when the power is restored. EQUIPMENT AND SERVICES WILL NOT FUNCTION
IN THE ABSENCE OF ELECTRICAL POWER OR PROPER NETWORK CONNECTION AND FUNCTION. A power
failure or disruption may require you to reset or reconfigure the Equipment prior
to utilizing the Service. In addition, since the Service utilizes and is dependent
upon your Broadband Internet Service, you acknowledge and understand that the TalkParade
Service will not function at all if your Broadband Internet Service is interrupted
for any reason, and TalkParade Service will not be restored until your Broadband Internet
Service is restored.
of Your Number Upon Termination of TalkParade Service: You acknowledge and agree
that any telephone number provided by SMR to you shall be leased and not sold. This
means that you do not obtain or retain any right, title or interest in or to the number
upon the conclusion or other termination of your Service. Upon termination of your
Service for whatever reason, you may request that we release the telephone number
that corresponded to your Service. In our sole discretion, we will decide whether
to release that number.
Between TalkParade Service and Telephone Service: You acknowledge and understand
that the TalkParade Service is a data transfer service that works in conjunction with
your existing Broadband Internet Service. You acknowledge and understand that the
TalkParade Service is not a telephone service. Important distinctions exist between
telephone service and the TalkParade Enhanced Internet Voice Service provided by SMR.
The Service is subject to different regulatory treatment than phone service. This
treatment may limit or otherwise affect your right to bring any complaints before
Federal and State telecommunications regulatory agencies.
Services, Equipment deliveries and the performance of any other responsibilities required
of us under this Agreement shall at all times be subject to credit approval or review
by SMR. You agree to provide such credit information or assurance as is requested
by us at any time.
agree to pay SMR for all charges invoiced to your account, including, but not limited
to, set-up or Activation fees (if any), monthly Service fees, international usage
charges, advanced feature charges, Equipment charges, and any other applicable fees.
Monthly service fees are paid in advance of each month's service, and toll charges
and any other applicable charges are billed at the end of each month's service. You
must give us a valid credit card number when the Service is Activated. If the credit
card expires, or if you close your account or your billing address changes, or if
the credit card is cancelled and replaced owing to loss or theft, you must advise
us without delay. We will bill all charges monthly to your credit card. We also reserve
the right to bill at more frequent intervals if the amount due at any time exceeds
all Service Plans which include per-minute charges, there is a minimum call duration
of Sixty (60) seconds. After the initial minimum, the duration of each call is calculated
and billed in one-minute increments, with each call rounded up to the next full minute.
Rates for the Service, Equipment, installation and all related services under this
Agreement are subject to change in accordance with applicable law.
the event of any error in your invoice or other billing dispute, you must notify us
in writing within fourteen (14) days after receiving your credit card statement containing
the charges that you are attempting to dispute. Your failure to submit a timely notice
of dispute will be deemed a waiver of such dispute. Billing disputes should be directed
to 800-914-9703 or email us at customercare@TalkParade.com.
payments for TalkParade Service shall be made by credit card. Each month we
will bill your card account for all charges arising during that billing cycle. Your
initial use of the Service authorizes SMR to charge the credit card account that you
provided to us when you subscribed for the Service. This will include any changed
credit card account information given to us if the card expires or is replaced. This
authorization will remain valid until 30 days after we receive your written notice
terminating our authority to charge your credit card. We may terminate your Service
at any time in our sole discretion if any charge to the credit card account that we
have on file for you is declined or reversed, or in case of any other non-payment
of account charges. In the event of any declined or reversed credit card payments,
or in case of any other non-payment of account charges, you will remain fully liable
to SMR for all charges accrued before termination and for all charges incurred by
us owing to your non-payment. These include, but are not limited to, late fees equal
to the lesser of 1.5% per month or the maximum allowed by law, collection costs, declined
or reversed credit card expenses, and reasonable attorney's fees and disbursements.
This is in addition to any other remedies that may be available to us by law.
are responsible for, and shall pay any applicable federal, state, municipal, local
or other governmental sales, use, excise, value-added, personal property, public utility
or other taxes, fees or charges now in force or enacted in the future, that arise
from or as a result of your subscription or use or payment for the Service or any
Equipment. Such amounts are in addition to payment for the Service or Equipment and
will be billed to your account. If you are exempt from payment of such taxes, you
must provide us with an original government-issued certificate attesting to tax-exempt
status. In such a case, your tax exemption will apply only from and after the date
we receive the qualifying tax exempt certificate. If we honor your tax exempt certificate,
you agree to defend, indemnify and hold us harmless from and against any claims or
penalties imposed against us by any taxing authorities in connection with your subscription
for the Service or your use thereof.
The initial term of this Agreement ("Term") begins on the date that we Activate your
Service and ends on the day which is exactly one calendar month following the date
of Activation. Thereafter, this Agreement automatically renews on a monthly
basis without further action by you unless you give us written notice of non-renewal
at least ten  days before the end of the monthly term in which the notice is given.
You acknowledge that upon each such automatic renewal, all pricing is subject to change.
You understand and agree that you are purchasing the Service for full monthly terms.
This means, if you attempt to terminate Service prior to the end of any monthly term,
you will be responsible for the full month's charges for that month, including without
limitation unbilled charges and a disconnect fee of $119 per Cisco ATA-186, SPA 2000
or like device, all of which immediately become due and payable. Even if you give
timely notice of cancellation of the Service, or if the Term of this Agreement has
expired or the Service is otherwise terminated, you still are responsible for paying
the disconnect fee and all unpaid, accrued charges due in relation to the Agreement.
We reserve the right to suspend or discontinue providing the Service generally, or
to terminate your Service, at any time in our sole discretion. If we do discontinue
providing the Service generally, or if we terminate your Service in our discretion
without a stated reason, you will be responsible only for charges accrued through
the date of termination, including a pro-rated portion of the final month's charges.
If your Service is terminated for any stated reason, including without limitation,
dishonor of the credit card number that you provided for payment of your account,
violation of this Agreement, or because of any improper use of the Service or Equipment
(such as, but not limited to, your attempts to hack, disrupt, or misuse the Service),
you will be responsible for the full month's charges to the end of the current monthly
term, including without limitation unbilled charges and a disconnect fee of $119 per
Cisco ATA-186, SPA 2000 or like device, all of which immediately become due and payable.
for Bankruptcy or Insolvency: We reserve the right to terminate this Agreement
immediately in the event that you make a general assignment of your assets for the
benefit of creditors, or in the event that a voluntary or involuntary petition is
filed by or against you under any laws relating to bankruptcy or reorganization.
For Breach: This Agreement may be terminated at our option, and our Equipment
may be removed, in the event of any breach of this Agreement by you, including without
limitation (i) your failure to pay for the Services, (ii) any breach of our Acceptable
Use Policy (printed as Annex A at the end of this Subscriber Agreement) committed
by you or any user of the Services at your premises or through your Equipment, (iii)
fraud or suspected fraud in connection with the use of the Service or your Equipment,
(iv) your failure to abide by the rates, rules and regulations of SMR and its third-party
providers, or (iv) your use of the Service which, in our sole judgment, threatens
the Services, the SMR network or the network of any of our third-party providers.
If we delay or otherwise fail to remove our Equipment, this shall not be deemed abandonment
of the Equipment by us. You shall be required to pay our reasonable collection and/or
attorney's fees in the event that we find it necessary to enforce collection or to
preserve and protect our rights under this Agreement. If we reinstate your Service
following a rumination for breach, you may be required to pay a reactivation fee.
Upon Termination: Upon termination of this Agreement for any reason, you will
be responsible for (i) payment in full for your use of the Equipment and Services
either to the effective date of termination or the date on which the Service has been
disconnected, whichever is later; (ii) prompt return of all Equipment to SMR or its
designee, as specified above (except for Equipment which you have purchased from us);
and (iii) payment of a refundable disconnect fee of $119 per Cisco ATA-186, SPA 2000
or like device.
after Cancellation or Termination: You acknowledge and agree that, in the event of
renewal after cancellation or termination of Service, you will be subject to the pricing,
warranties and terms of Service as are effective at the time of such renewal.
provides you with a 14-day money-back guarantee, applicable to one primary line per
account, but not to additional or secondary lines. Under terms of this Money-Back
Guarantee, we will refund the Activation fee (if any), first month of service and
shipping charges. We reserve the right to terminate or revoke the Money-Back Guarantee
at any time, without prior notice.
order to be eligible for the Money-Back Guarantee, you must cancel your Service within
fourteen (14) days of the day your account is Activated. Equipment must be returned
within 14 days. Usage must not exceed 300 minutes within the first 14 days of Service.
You are responsible for any charges for overage, international traffic or directory
assistance. Accounts exceeding 300 minutes of usage are not eligible for refund.
returned Equipment must be in the original packaging with the UPC or bar code intact.
All components, manuals and registration card(s) must be included. Equipment must
be returned with a valid return authorization number obtained from SMR Customer Care.
You are responsible for return shipping of Equipment. The Money-Back Guarantee will
not be honored if you fail to meet any of the requirements detailed in this Section
obtain a return authorization number, you must contact SMR at:
Customer Care: 800-914-9703 or email us at customercare@TalkParade.com.
You must insert RMA Request in the subject line of the email.
SMR, we are committed to respecting your privacy. Once you choose to provide personally
identifiable information, it will only be used in the context of your customer relationship
with us. We will not sell, rent, or lease your personally identifiable information
to others. Unless required by law or your prior permission is obtained, we will share
the personal data you provide only with other SMR entities and/or business partners
who are acting on our behalf to complete the activities described herein. Such entities
and/or national or international business partners are governed by our privacy policies
with respect to the use of this data. We also reserve the right to use personally
identifiable information to investigate and help prevent potentially unlawful activity
that threatens either SMR or any company affiliated with us. Moreover, upon the appropriate
request of a government agency, law enforcement agency, court or as otherwise required
by law, we may disclose personally identifiable information.
everything we have said above about respecting your privacy, you understand and agree
that our Service utilizes, in whole or in part, the public Internet and third-party
networks to transmit voice and other communications. We are not responsible or otherwise
liable for any lack of privacy which may be experienced with regard to your Broadband
Internet Service or your use of our Service through your Broadband Internet Service.
We will provide you and the other users of your Service
with technical support in accordance with our policies and procedures then in effect.
Our technical support is limited to the Services and the Equipment provided under
this Agreement. Our technical support may be rendered as available via email or telephone
by us or one of our partners. Support for other applications and uses is not provided
Limitation of Liability; Indemnification:
of Liability: Neither SMR nor any of its partners or affiliated entities shall
be liable for any delay or failure to provide the Service at any time or from time
to time, or any interruption or degradation of voice quality, or any damage to other
equipment on your premises or your network, that is caused by any of the following:
or omission of an underlying carrier, service provider, vendor or other third party;
network or facility failure;
network or facility upgrade or modification;
network or facility shortage;
or facility relocation; or
equipment, network or facility failure caused by events of force majeure including,
but not limited to, acts of god; strikes; fire; war or acts of terrorism; riot; government
actions; also, power outages; cable cuts; other failure of an incoming or outgoing
communications; the inability of communications to be connected or completed; degradation
of voice quality; and all other causes beyond the control of SMR.
agree that SMR shall not be liable for loss or damage, unless such loss or damage
is a result of its negligence or willful misconduct in connection with the provision
of Services. SMR will make every effort to receive excellent service from any
third party it engages in connection with its provision of Services, however, SMR
will not be liable for the negligence of such third party providers. In the
event of any breach of obligations or duties by such third party providers, SMR will
make all reasonable efforts to enforce it rights on behalf of itself and you.
of Damages: SMR's liability for any failure or mistake shall in no event exceed
the Service charges actually paid by you with respect to the affected time period.
In no event shall SMR, its officers, directors, employees, affiliates or agents or
any other service provider who furnishes services to you in connection with this Agreement
or the Service be liable for any incidental, indirect, special, punitive, exemplary
or consequential damages, or for any damages, including but not limited to loss of
data, loss of revenue or profits, or arising out of or in connection with the use
or inability to use the Service, including the inability to dial 911 or to access
emergency service personnel through the Service. The limitations stated here apply
to claims founded in breach of contract, breach of express warranty, breach of implied
warranty, products liability, tort, negligence of SMR or our vendors, and any and
all other theories of liability. Such limitations apply whether or not SMR was informed
of the likelihood of any particular type of damages.
You agree to defend, indemnify, and hold harmless SMR, its officers, directors, employees,
affiliates and agents and any other service provider who furnishes services to you
in connection with this Agreement or the Service, from any and all claims, losses
(including personal injury or death), damages, fines, penalties, costs and expenses
(including, without limitation, reasonable attorneys fees) arising out of (i) your
subscription for the Service; (ii) your personal use of the Service or Equipment,
or the use of your Service or Equipment by any other person; or (iii) your inability
or the inability of any other user of your Service to dial 911 or to access any emergency
response system or personnel. In the event of your breach of the terms of this Agreement,
including without limitation, failure to pay any sum due hereunder, or in the event
of any breach by any other person using the Services or Equipment furnished to you,
you shall reimburse SMR for all attorney, court, collection and other costs incurred
by SMR in the enforcement of our rights hereunder and we may keep any deposits or
other payments which previously have been made by you.
of Warranty: Except for our undertaking to maintain the quality of the SMRs
or its third party providers network in accordance with industry standards and reasonable
commercial practice, SMR makes no warranties, express or implied, including but not
limited to, any implied warranties of merchantability or fitness of the Service or
the Equipment for a particular purpose. SMR does not warrant that the Service or Equipment
will be without Service failure, delay, interruption, error, degradation of voice
quality or loss of content, data or information. Neither SMR nor its officers, directors,
employees, affiliates or agents or any other service provider or vendor who furnishes
services or products to you in connection with this Agreement or the Service or Equipment
will be liable for unauthorized access to our or to your transmission facilities or
premises equipment or for unauthorized access to, or alteration, theft or destruction
of, your 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 our or any of our service providers' or vendors' negligence. Statements
and descriptions concerning the Service or Equipment, if any, by us or by any agents
or installers purporting to act on our behalf are informational only, and are not
given as a warranty of any kind. Our liability is limited to repair, replacement,
credit or refund. We may elect to provide a refund in lieu of credit, replacement
or repair. To the extent that any warranties may be found to exist on the Equipment,
such warranties cover only the defects arising under normal use and do not include
malfunctions or failures resulting from misuse, abuse, neglect, alteration, modification,
improper installation, or repairs by anyone other than SMR or its designee.
of Time for Claims: Any claim against SMR in connection with any failure of
the Service must be made within 90 days of the event of the claim or 90 days from
the termination of Service, whichever is earlier. SMR shall have no liability for
any claims related to the provision or failure of the Service that are not timely
submitted with the specified 90-day period.
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.
You understand that you are responsible for any and all liability that may arise out
of the content transmitted by or to you or any other persons using your Equipment
or Services. You shall make certain that your use of the Services, Equipment and content,
and the use of the same by any other person using your equipment, will at all times
comply with all applicable laws, regulations and written and electronic instructions
for use. We reserve the right to terminate or suspend affected Services, and/or remove
your or any other user's content from the Services, if we determine that such use
or content doer not conform with the requirements set forth in this Agreement or interferes
with our ability to provide Services to you or others, or if we receive notice from
anyone that your or any other user's use or content may violate any laws or regulations.
Our actions or inaction under this subparagraph shall not constitute review or approval
of your content or the content of any other user of your Equipment or Service. You
agree to indemnify and hold SMR harmless against any and all liability arising from
the content transmitted by you or to you, or by or to any other user of your Equipment
or Service. When we use the term "user," we mean any person, whether authorized or
unauthorized, using the Service and/or Equipment provided to you. We have no obligation
to monitor Service content. However, you acknowledge and agree that we have the right
to disclose any information as necessary to satisfy any law, regulation or other governmental
request, to operate our Service properly, or to protect ourselves and our other Subscribers.
Property: We assume no liability for the condition or repair of any of your owned
hardware or software, including your Computer and Modem. You are solely responsible
for the repair and maintenance of all such hardware and software that you may use
in connection with the Service.
Law; Resolution Of Disputes:
Law: The Agreement and the relationship between you and SMR shall be governed
by the laws of the State of New York without regard to its conflict of law provisions.
Subject to the provision in the next subparagraph pertaining to mandatory arbitration,
you and SMR agree to submit to the personal and exclusive jurisdiction of the courts
located within the Borough of Manhattan in the City and State of New York.
Arbitration: Any dispute or claim between you and SMR arising out of or relating
to the Service or Equipment provided in connection with this Agreement shall be resolved
by arbitration before a single arbitrator administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules. The arbitration shall
be conducted within the Borough of Manhattan in the City and State of New York. The
arbitrator's decision shall follow the plain meaning of the relevant documents, and
shall be final and binding. Without limiting the foregoing, the parties agree that
no arbitrator has the authority to: (i) award relief in excess of what this Agreement
provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof. All claims
shall be arbitrated individually, and you agree not to bring or join a punitive or
certified class action to arbitration or seek to consolidate or bring previously consolidated
claims in arbitration. You acknowledge that this arbitration provision constitutes
a waiver of any right to a jury trial.
failure of SMR to exercise or enforce any right or provision of this Agreement shall
not constitute a waiver of such right or provision at that time or on any other occasion
in the future.
any provision of the Agreement is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should endeavor to give effect
to the parties' intentions as reflected in the provision, and the other provisions
of the Agreement remain in full force and effect.
agree that regardless of any statute or law to the contrary, and subject to any other
time period specified in Subsection 8(e) or elsewhere in this Agreement, any claim
or cause of action arising out of or related to use of the Service or the Agreement
must be filed within one (1) year after such claim or cause of action arose, or be
Agreement and the Equipment supplied by SMR are not assignable or otherwise transferable
by you or any other person falling within the definition of "Subscriber." SMR may
assign this Agreement or any or all of its rights or responsibilities under this Agreement
at any time to any affiliated company or to any merger partner.
agree, on behalf of yourself and all users having access to your Service and/or Equipment,
to comply with all U.S. Export laws concerning the transmission of technical data
and other regulated materials via the Services. You agree to comply with applicable
local, state and federal regulations governing the locality in which the Equipment
and Services are used.
SMR may, in its sole discretion, change, modify,
add or remove portions of the TalkParade Enhanced Internet Voice Service and the terms
and conditions applicable to the Service at any time. SMR may notify you of any such
changes by posting notice of such changes on the SMR or the TalkParade Enhanced Internet
Voice Service Web site, or by sending notice via email or postal mail. You are responsible
for providing SMR with any change of email or postal mail address. Notice will be
considered received by you, and such changes will become binding on you, on the date
posted to the SMR or the TalkParade Enhanced Internet Voice Service Web site and no
further notice by us is required. Any posted changes will supersede all previously
agreed to electronic and written Terms of Service. Your continued use of the TalkParade
Enhanced Internet Voice Service following notice of such change, modification or amendment
shall be deemed to be your acceptance of any such modification. If you do not agree
to any modification of the TalkParade Enhanced Internet Voice Service and/or its terms
and conditions, you must immediately cease using the Service and notify SMR that you
are terminating the Service. In addition, TalkParade Enhanced Internet Voice Service
and/or its terms and conditions are subject to change in compliance with applicable
You acknowledge that by "clicking" the Acceptance
icon below and/or by using the TalkParade Enhanced Internet Voice, you are agreeing
to the terms and conditions of this Agreement on behalf of all persons who use the
TalkParade Enhanced Internet Voice Service or the Services through the Equipment or
your account. You will be responsible for ensuring that all person who use the Service
understand and comply with the terms and conditions of this Agreement. You acknowledge
and agrees that you are responsible and liable for any and all breaches of the terms
and conditions of this Agreement, whether such breach is the result of use of the
TalkParade Enhanced Internet Voice Service.
This Agreement and the rates for Services found on
the SMR or TalkParade Enhanced Internet Voice Service Web site constitute the entire
agreement between you and SMR and govern your use of the Service, superseding any
prior agreements between you and SMR and any and all prior or contemporaneous statements,
understandings, writings, commitments, or representations concerning its subject matter.
No undertaking, representation or warranty made by any agent or representative of
SMR or any other entity in connection with the sale, installation, maintenance or
removal of TalkParade Enhanced Internet Voice Service shall modify or amend any of
the terms or conditions or Service in this Agreement or posted on the SMR or TalkParade
Enhanced Internet Voice Service Web site. No waiver or amendment to this Agreement
or these terms and conditions shall be binding on SMR unless made in writing expressly
stating that it is such a waiver or amendment and signed by an officer of SMR. Your
application and subscription for Service shall be deemed submitted when we receive,
via our website, your electronic acceptance of all the terms and conditions contained
in this Agreement, and when you receive a confirmation email that we have received
ANNEX A: DETAILED SMR ACCEPTABLE USE POLICY
In general, customers may not use the SMR network,
Equipment or Services in any manner which:
any applicable law, regulation, treaty or tariff;
the acceptable use policies of any networks, machines, or services which are accessed
through SMR's network;
on the intellectual property rights of SMR or others;
the privacy of others;
deceptive or other improper telemarketing or other online marketing practices, including,
without limitation, practices that violate the United States Federal Trade Commission's
guidelines for proper telemarketing or other online marketing schemes; or
violates this AUP.
Prohibited activities also include, but are not limited
to, the following:
to interfere with or denying service to any user or host (e.g., denial of service
header information, user identification or user information;
of malicious programs into the network (e.g., viruses, worms, Trojan horses, etc.);
or scanning the networks of others without permission (e.g., port scan);
or successful security breaches or disruption of Internet communication, including
without limitation accessing data, machines or networks of which you are not an intended
recipient or user, or logging into a server or account that you are not expressly
authorized to access (e.g., hacking or cracking);
any form of network monitoring (e.g., packet sniffer) which will intercept data not
intended for your use;
any program/script/command, or sending messages of any kind, designed to interfere
with a third party customer terminal session, via any means, locally or via the Internet;
any telemarketing calls through the use of SMR Equipment or through the SMR network
to any person or business in violation of any federal or state "Do Not Call" regulations,
or any other federal or state consumer protection regulations;
of SMR Equipment or the SMR network with any automated dialing mechanisms or other
predictive dialing systems that violate any federal or state statutes or regulations;
unsolicited commercial email or unsolicited bulk email (e.g., UCE, UBE, or spamming)
through the use of SMR Equipment or through the SMR network; or sending unsolicited
commercial or bulk email through another provider advertising or implicating, directly
or indirectly, the use of any Service provided by SMR, including without limitation
email, web, FTP and DNS Services;
(with or without an associated fee) automated tools, software and/or support services
that allow others to engage in improper telemarketing or spamming;
an open relay mail server;
email addresses from the Internet for the purpose of sending unsolicited email or
to provide collected addresses to others for that purpose (e.g., database scraping
and/or database harvesting);
or receiving copyright infringing material, including but not limited to copyrighted
music, video, software, books, programs or other published material;
or receiving obscene, indecent, offensive, racist, defamatory, unreasonably violent,
threatening, intimidating or harassing material;
Control Violations - The law limits the ability of persons to export encryption software,
over the Internet or otherwise, to points outside the United States; or
Activities, whether lawful or unlawful, that SMR or any of its third party providers
or peering partners determines to be harmful to its customers, subscribers, operations
or reputation, including any activities that restrict or inhibit any other user from
using and enjoying the Service or the Internet.
Without in any way limiting SMR's rights under this
AUP and/or the Subscriber Agreement, Subscribers or users of your Service who make
unsolicited or other improper telemarketing calls or who send unsolicited commercial
or bulk email agree to pay SMR the cost of SMRs labor to respond to complaints, with
a minimum charge of $200.00.
As we have pointed out, the responsibility for avoiding
the harmful activities just described rests primarily with the Subscriber. SMR will
not, as an ordinary practice, monitor the communications of Subscribers or other users
of your Service to ensure that you or they comply with SMR policy or applicable law.
When SMR becomes aware of harmful communications, or when it is notified or becomes
aware of actual or potential violations of this AUP, SMR may take any action to stop
the harmful activity, including but not limited to suspending or terminating the Service;
and/or taking any other actions as deemed appropriate by SMR. SMR shall have the sole
discretion to determine which action is appropriate under the circumstances. SMR may
take action immediately without regard to any cure periods that may be set forth in
the Subscriber's applicable Service Agreement. SMR shall have the sole right to interpret
the meaning of any provision of this AUP or whether a Subscriber's or any user's or
account holder's activity violates this AUP.