Terms and Conditions

TalkParade Enhanced 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.

1.      Definitions:

(a)   "Activate" 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.

(b)   Broadband Internet Service: Internet access which is delivered over high speed cable, DSL, T1 lines, or other means of high-speed access.

(c)   Computer: 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.

(d)   Equipment: 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.

(e)   Modem:  A device that converts and transmits data over cable or DSL lines.

(f)     Subscriber:  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.

2.      Services Provided:

(a)   We 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.

(b)   Equipment 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 immediately.

(c)   The 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).

(d)   Use of Service and Equipment:

(i)           Personal 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.

(ii)         Business 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.

(iii)       Additional 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.

(iv)        Use 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 to you.

(v)          Trademarks 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.

(vi)        No 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.

(vii)      Theft 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.

(viii)    Return 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.

(e)   No 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.

(f)     Loss 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.

(g)   Transfer 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.

(h)   Distinctions 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.

3.      Charges and Payments:

(a)   All 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.

(b)   You 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 $50.

(c)   For 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.

(d)   In 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.

(e)   All 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.

(f)     You 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.

4.      Term and Termination:

(a)   Term:  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 [10] 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.

(b)   Termination: 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.

(c)   Termination 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.

(d)   Termination 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.

(e)   Obligations 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.

(f)     Renewal 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.

5.      Money-Back Guarantee:

(a)   SMR 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.

(b)   In 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.

(c)   All returned Equipment must be in the original packaging with the UPC or bar code intact. All components, manuals and registration card(s) must be included. Equipment must be returned with a valid return authorization number obtained from 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 5.

(d)   To 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.

6.      Privacy:

(a)   At 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.

(b)   Notwithstanding 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.

(c)   For additional information about our Privacy Policy, please refer to http://www.TalkParade.com/privacypolicy.aspx.

7.      Technical Support: 

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 or implied.

8.      Warranty; Limitation of Liability; Indemnification:

a)     Limitation 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:

(i)           act or omission of an underlying carrier, service provider, vendor or other third party;

(ii)         Equipment, network or facility failure;

(iii)       Equipment, network or facility upgrade or modification;

(iv)        Equipment, network or facility shortage;

(v)          Equipment or facility relocation; or

(vi)        Service, 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.

(b)   You 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.

(c)   Limitation 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.

(d)   Indemnification:  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.

(e)   Limitation 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.

(f)     Limitation 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.

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

(h)   Content:  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.

(i)     Subscriber 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.

9.      Governing Law; Resolution Of Disputes:

(a)   Governing 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.

(b)   Mandatory 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.

10. Miscellaneous:

(a)   The 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.

(b)   If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.

(c)   You 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 forever barred.

(d)   The 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.

(e)   You 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.

11. Amendment: 

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 law.

12.  Multiple Users: 

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.

13. Entire Agreement: 

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 your submission.

ANNEX A:  DETAILED SMR ACCEPTABLE USE POLICY ("AUP")

In general, customers may not use the SMR network, Equipment or Services in any manner which:

(a)   violates any applicable law, regulation, treaty or tariff;

(b)   violates the acceptable use policies of any networks, machines, or services which are accessed through SMR's network;

(c)   infringes on the intellectual property rights of SMR or others;

(d)   violates the privacy of others;

(e)   involves 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

(f)     otherwise violates this AUP.

Prohibited activities also include, but are not limited to, the following:

(a)   attempting to interfere with or denying service to any user or host (e.g., denial of service attacks);

(b)   falsifying header information, user identification or user information;

(c)   introduction of malicious programs into the network (e.g., viruses, worms, Trojan horses, etc.);

(d)   monitoring or scanning the networks of others without permission (e.g., port scan);

(e)   attempted 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);

(f)     executing any form of network monitoring (e.g., packet sniffer) which will intercept data not intended for your use;

(g)   using 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;

(h)   making 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;

(i)     use 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;

(j)      sending 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;

(k)   providing (with or without an associated fee) automated tools, software and/or support services that allow others to engage in improper telemarketing or spamming;

(l)      maintaining an open relay mail server;

(m) collecting 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);

(n)   transmitting or receiving copyright infringing material, including but not limited to copyrighted music, video, software, books, programs or other published material;

(o)   transmitting or receiving obscene, indecent, offensive, racist, defamatory, unreasonably violent, threatening, intimidating or harassing material;

(p)   Export 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

(q)   Other 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.