THESE TERMS AND CONDITIONS STATE IMPORTANT REQUIREMENTS REGARDING USE OF VOICEPULSE SERVICE AND YOUR RELATIONSHIP WITH VOICEPULSE. YOU SHOULD READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OURS.
1. This agreement ("Agreement") (including the General and Specific Terms set forth below) contains all of the terms and conditions between VoicePulse Inc. ("we," "us," "our" or "VoicePulse") and you and governs the use of the services offered at the VoicePulse web site (the "Services"). You are deemed to have accepted this Agreement upon the earlier of: (a) your submission of an online order; (b) your accepting the Terms of Service electronically during registration or in the course of installing the Device (see Paragraph 3.1); (c) your use of the Service (see Paragraph 3.1); (d) your retention of the Device we provide beyond 30 days following delivery; (e) your clicking on "I AGREE WITH TERMS ABOVE" at the bottom of this page. If you do not agree to any of the terms set forth herein, you may not use the Service.
2.1. The "America Unlimited Special Offer" service is offered only with a minimum term of twelve months.
2.2. The "America Unlimited", "Small Business Plan", "Local Unlimited +200" and "Local Unlimited +600" services are offered with a minimum term of one month.
2.3. Except as explicitly permitted by this Agreement, you must maintain service with VoicePulse for your minimum term plus any additional time required by any promotions you accept. Your minimum term begins on the date that your Service is activated by us. Full monthly terms will renew automatically after the minimum term unless we are otherwise notified by you of your intent to cancel Service. Notice of cancellation must be given by logging into your account at www.voicepulse.com and clicking on "Cancel Account" FOR EACH LINE IN YOUR ACCOUNT. AS LONG AS THERE EXISTS AT LEAST ONE ACTIVE LINE IN YOUR ACCOUNT, YOUR ACCOUNT IS NOT CONSIDERED TO BE CANCELLED. Notice of cancellation must be given at least 1 day before the end of the then current term. Upon cancellation, you will be responsible for charges for the then current term, and any unbilled charges. All charges will become immediately due and payable. The Device must be returned in accordance with Paragraph 10.6. Returning the Device to us without first canceling your service according to the procedure described in this Paragraph does not effect cancellation of your service, and you may continue to be liable for recurring service fees.
3. GENERAL TERMS.
3.1. VoicePulse owns and operates a Voice over IP based phone service ("Service") and related web Site. The Service and Site are provided to Customers according to this Agreement. The Agreement applies to the Service, Site and any devices utilized, such as an IP Phone, Analog Telephone Adapter or any other device ("Device") used to access the Service.
3.2. By activating the Service you will affirm:
3.2.1. You understand and intend that the Agreement is a legally binding agreement equivalent to a signed, written contract;
3.2.2. You will use the Service in a manner consistent with all applicable laws and regulations and in accordance with the terms of this Agreement and any other applicable rules or conditions that govern the use of the Service as they may be amended from time to time.
4. USE OF SERVICE AND DEVICE. The following requirements apply to the use of our Services:
4.1. You will not use the Service for any purpose that is unlawful, abusive, intrusive on another's privacy, harassing, libelous, defamatory, threatening or hateful, or in any other way that would violate any applicable governmental law.
4.2. You may not offer the Service, Device or any part thereof for sale or transfer to another person or entity.
4.3. VoicePulse offers the Service only to consumers located in the United States. While the Service may be used to make and receive international calls, we do not represent that the use of the Service is appropriate in locations outside the United States. If you choose to use the Service from outside the United States, you are responsible for compliance with any and all governing foreign and local laws.
4.4. You may not reverse engineer, distribute, publish, display, modify or in any way exploit the configuration parameters which we provide as a means to access the Service.
4.5. You may not use the Service for telemarketing, broadcast fax, to deliver unauthorized or unsolicited advertising, promotional materials or solicitations, or as the callback or removal callback number for any such service regardless of whether or not the solicitation was made using the Service.
4.6. You acknowledge that the Device and any embedded software or firmware is exclusively for use with the Service.
4.7. You agree not to perform a factory reset of the Device.
4.8. You may not use the Service with or connect the Device to a PBX or automated dialer.
4.9. Inappropriate and prohibited use restrictions include, but are not limited to: continuous or extensive call forwarding; fax broadcast/blasting; telemarketing; predictive dialing; or any other use or activity that is inconsistent with normal small to medium sized business use. VoicePulse reserves the right to measure for appropriate use and at its sole discretion may determine that the Service has been subject to inappropriate use. In the event inappropriate use is determined, VoicePulse may request the customer change or modify the Service use and/or Service plan.
5. FEES FOR UNAUTHORIZED USE.
5.1. Unauthorized use as described in Section 4 typically results in call detail patterns which are easily recognized by automated reporting systems. VoicePulse uses such systems to identify prohibited use of the Service. VoicePulse reserves the right to take any and all actions it may deem appropriate with respect to such unauthorized use, including without limitation taking action to recover the costs and expenses of identifying offenders and removing them from using the Service, and levying cancellation and toll charges for the unauthorized use. VoicePulse reserves at all times all rights and remedies available to it with respect to such activities at law or equity. All incoming or outgoing domestic phone calls which are identified as unauthorized use are subject to a charge of up to 4.9 cents per minute (USD). The charge is due immediately, and will be deducted from the credit card or form of payment you provided at the time of account activation. If you feel that such charge was made in error, and that the use did comply with section 4, you may dispute the charges. All such disputes must be made in accordance with sections 10.19 and 10.20. Initiating a chargeback via your credit card company prior to pursuing the remedy described in those sections 10.19 and 10.20 constitutes a waiver of your rights regarding the dispute.
6.1. Users may seek the services of third parties and/or other users not related to VoicePulse through the use of the Site or Service. If there are any issues concerning advice and/or service received by a user from any third parties or any other user of the Site or Service unrelated to VoicePulse or any claims, controversies, suits or any damages whatsoever that may arise, users must deal directly with said third parties to resolve any disputes. VoicePulse will not be held responsible and expressly disclaims any liability whatsoever for any claims and/or controversies that may arise from any disputes between any users of the Site or Service. By using this Site, you do hereby represent, understand and expressly agree to hold VoicePulse harmless for any claim or controversy that may arise from any disputes between users of the Site or Service.
7.1. Our services are void where prohibited by applicable laws. Our Service is offered only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our Service is not available to minors under the age of eighteen (18) in the jurisdiction or control of the United States or to anyone who may not be able to form a legal binding contract within such person's jurisdiction. Any misstatements and/or misrepresentations regarding the age, background, experience and/or eligibility of any users of the Service are not the responsibility of VoicePulse. VoicePulse does hereby expressly disclaim any liability whatsoever for any misstatements and/or misrepresentations made by any users of this Site or the Service. Users do hereby represent, understand and agree to hold VoicePulse harmless and to indemnify VoicePulse for any misstatements and/or misrepresentations, whether made intentionally or not, made by any users of this Site or the Service.
8. LINKS AND ACCOUNT INFORMATION.
9. COPPA COMPLIANCE.
9.1. Users of this Site or the Service should monitor children's use of the Internet. VoicePulse's Site and Service is intended for people 18 or over. We have also made an effort to specifically limit VoicePulse's appeal to people of age 18 and older. VoicePulse will not knowingly collect any information from children under 13. VoicePulse takes the Children's Online Privacy Protection Act of 1998 (COPPA) as well as all FTC regulations very seriously. We are also strong supporters and maintain strict compliance with the Rules and Regulations set forth thereunder. That being said, we do not assume any responsibility for any misrepresentations regarding your age or parental consent when using this Site. Should we determine that you provide any false information to us when using this Site, your Service will be terminated immediately. VoicePulse expressly disclaims any liability whatsoever that may result from any unauthorized use of any user's account or information obtained as a result of using this Site or the Service. You do hereby understand and agree to hold VoicePulse harmless for any unauthorized use of any user's account or personal information.
10. SPECIFIC TERMS AND CONDITIONS:
10.1. Paid Service. Payment for Service and applicable taxes is billed on a pre-pay monthly basis. Monthly periods are defined as 30 day periods beginning on the same date as the then current term. You must provide a valid credit card at the time you sign up for the Service. You agree to maintain a valid and current credit card on file with VoicePulse at all times. Additional charges including, but not limited to additional features and per minute charges for calls beyond those included in your Service will be billed at the end of the monthly period in which such charges are incurred. Unpaid balances for additional charges exceeding US$50.00 will be billed and become payable immediately. If charges to your credit card are declined for any reason, VoicePulse reserves the right to suspend or terminate your Service until you provide a valid method of payment. Suspension or termination of your Service leaves you liable for all accrued charges and fees associated with the collection of such payment as well as all unbilled charges. You must notify VoicePulse in writing, at the address in Paragraph 10.20, within 7 days after receiving your credit card statement if you dispute any VoicePulse charges on that statement. We will respond to your dispute in writing, within 90 days. You are responsible for paying all charges in accordance with your Rate Plan for use of the Service associated with the Identifier(s) and Device(s) assigned to you, even if you did not use, or authorize the use of, the Device.
10.1.1. A Regulatory Compliance Fee may be charged monthly to offset costs incurred by VoicePulse in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. The Regulatory Compliance Fee may apply to every phone number assigned, including toll free and virtual numbers.
10.2. Enhanced 911 (E911) means that when you dial 9-1-1, your call is routed to the Public Safety Answering Point (PSAP) supporting the address you registered when activating your account. The operator answering the call will automatically receive your call back number and the location information you registered when activating your account.
Basic 911 means that when you dial 9-1-1, your call is routed to the Public Safety Answering Point (PSAP) supporting the address you registered when activating your account. The operator answering the call will not have your call back number or your exact location, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back if the call is not completed or is disconnected. Until you give the operator your exact location, he/she may not be able to dispatch help. As additional PSAPs become capable of automatically receiving address information, VoicePulse will automatically upgrade customers to Enhanced 911 at no charge to you.
LIMITATIONS OF VOICEPULSE 911 SERVICE:
VoicePulse depends on you to provide accurate 911 service address information when activating your account. The 911 service address you provide during account information is used to determine which PSAP 9-1-1 calls made from your phone should be routed to, and also determines what location information PSAP operators receive (where E911 is available).
VoicePulse 911 service will not function if your VoicePulse service is not functioning for any reason. If you are experiencing an electrical power outage, broadband Internet outage, or if your VoicePulse service is terminated, you may receive a busy signal or other error message when dialing 9-1-1.
If you move the physical location where you are using VoicePulse service you must register the new location. If you do not update your 911 service address (by calling Customer Service or online through the Account Management Center), your 911 call may reach the incorrect PSAP and you will not receive assistance.
VoicePulse 911 service will not function for up to 30 days after you are able to make outbound calls with your service or after you update the 911 service address to a new location. It takes time to validate the 911 service address provided during account activation, and to determine the level of 911 service available. During this period, you should plan on using alternative means such as cellular telephone to reach 911 emergency services.
Some customers may be located in areas where neither Basic 911 nor Enhanced 911 services are activated. VoicePulse is continuously working to expand the number of areas where Enhanced 911 is available, but there are areas where neither Basic 911 nor Enhanced 911 services are activated. If you are located in one of these areas, the Emergency Call Response Center operator who answers your call will attempt to route your call to the appropriate local authorities, but may reach them via a non-emergency phone number.
Because it takes time to validate the 911 Service Address you entered, and to determine the level of service available (if any) in that area, there may be cases where we determine, after you receive your VoicePulse equipment, that no 911 service is available to you. In such cases, we will notify you by email within 60 days that no 911 service is available to you. After notification is sent, you may cancel your service without any penalty or further obligation via the online Account Management center.
10.2.1. You must register your location with VoicePulse by calling Customer Service or online through the Account Management Center. If you fail to register your 911 address, your account will be charged $100 per call to 911 that is routed to the emergency call center.
10.2.2. If you are required to subscribe to E911 service, you may be subject to a monthly E911 fee that is assessed on a per phone number basis. This fee reimburses costs and expenses incurred by VoicePulse for providing and maintaining E911 service and state, county and/or municipal E911 surcharges and taxes. VoicePulse reserves the right to adjust fees to reflect increases or decreases of the cost of E911.
10.3. "900 Numbers." You acknowledge that we have informed you that the Service does not permit calls to 900 numbers or other pay-per-call services.
10.4. Directory Assistance. You acknowledge that we have informed you that calls to Directory Assistance (411, 1-XXX-555-1212) excluding toll-free Directory Assistance (1-800-555-1212) will incur a $0.75 per call charge.
10.5. Theft. You are responsible for canceling your Service if you believe the Device is lost or stolen, or if you become aware that the Service provided to you is being stolen. Failure to do so may result in additional charges to you. You will be liable for the Replacement Fee (see Paragraph 10.6).
10.6. Return of Device. In the event that you are required to return the Device, for example if you cancel or terminate your Service and are using a Device loaned to you by VoicePulse, you must return the device according to the requirements listed in the subsections of this Paragraph 10.6. If VoicePulse does not receive the device according to the requirements in the subsections of this Paragraph 10.6, the Termination Fee (see Section 10.7 & 10.7.1) will not be refunded. Returning the Device without a Return Merchandise Authorization number ("RMA number" or "RMA") does not effect cancellation of your service, or authorize a refund.
10.6.1. VoicePulse must receive the Device within 14 days of your cancellation or service termination.
10.6.2. You must return the Device in its original undamaged condition, with all original packaging, documentation and accessory materials.
10.6.3. If the Device being returned is defective, VoicePulse will, at its sole discretion, make a determination as to the cause of the defect. If we find that the Device was damaged because you used the Device outside of its normal operating parameters, the Replacement Fee will become immediately due and payable.
10.6.4. The Device must be free of any writing, stickers, or marks other than those which were on the Device when you received it.
10.6.5. You must write the RMA number assigned by VoicePulse on the outside of the box in which you ship the Device to us.
10.6.6. The box which encloses the Device must be packed inside another cardboard shipping box.
10.6.7. You must return the Device to the address listed in Paragraph 10.20.
10.7. Service Termination and Termination Fee. VoicePulse reserves the right to terminate the Service at any time with or without notice and for any reason. You agree that VoicePulse shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
10.7.1. You will be charged a termination fee of $39.99 per device borrowed upon termination of Service for any reason including, but not limited to, convenience by Customer. The termination fee becomes due and payable immediately upon termination and will be billed directly to your credit card. No Termination Fee will be charged if you cancel service on a device which was purchased from VoicePulse or another source. The termination fee applies only to devices borrowed from VoicePulse. The Termination Fee will be refunded when you return the Device(s) according to the terms set forth in Section 10.6. VoicePulse will not credit Customer if the Device(s) are not returned according to the terms in Section 10.6. Termination Fee does not apply to devices which were purchased by Customer. If a Termination Fee applies and VoicePulse is unable to charge your credit card for the applicable amount due, Service will not be cancelled.
10.8. Equipment. You acknowledge that unless otherwise stated the Device remains the property of VoicePulse. You must return the Device to us according to the requirements in Paragraph 10.6.
10.18.1. Initial pre-paid payment is non-refundable.
10.18.2. Pre-paid balance (excluding initial payment) is refundable within 60 days of payment.
10.9. Equipment Replacement. In certain cases, VoicePulse may determine that a replacement Device must be issued to you to avoid service interruptions or to improve your Service. In such case, we may require a deposit ("Replacement Deposit") equivalent to the value of the Device. You credit card will be charged for the amount of the Replacement Deposit before the replacement Device is shipped to you. When we receive the device being replaced in accordance to Paragraph 10.6 VoicePulse will refund the Replacement Deposit to your credit card. Replacement devices may not be issued to you until a Replacement Deposit has been charged to a valid credit card.
10.10. Use of Own Device. VoicePulse offers certain plans which permit you to use your own device. In these cases, VoicePulse expressly disclaims any warranty that all or any service features work properly. You are responsible for determining the fitness of the device you choose to use with the Service.
10.11. Refunds for interrupted or incomplete calls. In certain cases, VoicePulse may determine, at its sole discretion, that a full or partial refund should be issued to you for certain phone calls which were interrupted, not completed, or experienced audio quality issues ("Call Quality Refund"). Call Quality Refunds may take up to 120 days to appear on your account, and may, at VoicePulse's sole discretion, be issued in the form of (1) credit toward next month's service; (2) credit issued to your credit card on file; (3) check issued to you via postal mail.
10.12. Use of Device/Identifier. Except as provided otherwise by law, you have no property rights to any information, credentials, phone number or other identifier ("Identifier") that we, our agents, or manufacturers of the Device have provisioned for use with the Service or Device, and you agree we may change any such Identifier at any time with or without prior notice to you. In the event we are required by law to transfer any Identifier to you on termination of this Agreement, we may charge you a fee. We reserve the right to refuse porting or transfer of any Identifier provisioned by us.
10.14. Release. Because we are not involved in the actual contact between users, in the event that you have a dispute with one or more users and/or any parties unrelated to VoicePulse (including, but not limited to, any clients of VoicePulse), you release VoicePulse (and our officers, directors, principals, agents, investors, subsidiaries and employees) from all claims, demands and damages (actual and consequential) of every kind and nature whatsoever, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
10.15. Information Provided by Users. Users are responsible for providing accurate, timely and complete information to us in connection with their registration for and use of the Site. VoicePulse is not responsible for any claims relating to any inaccurate, untimely or incomplete information provided to us. Users represent and warrant that they are the owner or a licensee or otherwise have the right to provide any information or materials (including pre-existing materials) that they post or transmit via our Service or Site.
10.16. Your Information. "Your Information" is defined as any information you provide to us in the registration process, through any e-mail feature, electronic submission or transaction or through traditional mail. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. With respect to Your Information:
10.17. Your Information (or any items or contents listed therein): (a) shall not be false, inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) shall not be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, shall be posted only in the Adults Only section and shall be distributed only to people legally permitted to receive such content; (g) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other partners, affiliates, users or suppliers.
10.18. Billing and Payment Policy. Certain users of the Site are obligated to pay for the services offered therein, unless specifically notified otherwise. VoicePulse will charge a user's credit card according to the agreed upon fee between user and VoicePulse for use of the services of the Site. Users will pay fees according to the applicable "Price Menu" set forth on the VoicePulse Site. No additional notice or consent will be required for billings to user's credit card for all amounts (including late charges, Termination Fees, Replacement Fees and cancellation fees). You must promptly notify us of any change in your invoicing address or changes related to the credit card used for payment. Your payment obligations survive any termination of this Agreement. While VoicePulse will use its best efforts to ensure the privacy of all credit card and other personal information, we expressly disclaim any liability for any damage that may result should any such information be released to any third parties. User does hereby agree to hold VoicePulse harmless for any damages that may result therefrom. VoicePulse will use a third party service to process your credit card information. VoicePulse is not responsible for any of the services offered by third party. You do hereby agree to indemnify and hold harmless VoicePulse from any liability whatsoever that may result from the use of said party's services.
10.19. Late Payments/Disputes. For any payment returned for nonpayment or for any credit card chargebacks, we will assess an additional fee of $25 and we may, without notice to you, suspend Service and/or terminate this Agreement, in addition to all other remedies. All amounts due, including disputed amounts, must be paid by the due date regardless of the status of any objection. All communications concerning disputed amounts owed, including any instrument tendered as full satisfaction of the amounts owed, or stipulating any other conditional action, agreement or proposed resolution of any dispute must be (i) in writing, (ii) marked "Billing Dispute" on the outside of the envelope, (iii) sent to the address provided in the Notices section below, and (iv) received by us within 60 days after posting of the invoice.
10.20. Notices. We may send you notices by mail or electronic means, in our sole discretion. Notices to you shall be effective 1) 3 days following the date deposited in the U.S. Mail or delivered to a nationally recognized courier or delivery service to your address as kept in our files and/or 2) immediately upon our transmission using an electronic means such as email or text messaging service. You are responsible for notifying us of any changes in your mailing or email address. Written notice to us shall be effective when directed to VoicePulse, 1095 Cranbury South River Road, Suite 11, Jamesburg, NJ 08831 and received by us. Your notice must contain specific information adequate to identify you and your Service. Oral and electronic notices shall be deemed effective on the date reflected in our records.
10.21. No Liability. User agrees not to hold VoicePulse, VoicePulse's principals, agents and employees, officers, directors, or participants liable for any advice, representations and/or services delivered which originated through the Site or were otherwise provided by any user. All users of this Site or the Service release VoicePulse, VoicePulse's principal's, agents, officers, directors, and employees from claims, demands and damages (actual or consequential) of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or in any way connected with any such disputes that may arise through the use of this Site or the Service.
10.23. Community Areas. If the Site contains bulletin board services, chat areas, news groups, forums, prices, quotes and other information regarding products and/or services offered by any parties other than VoicePulse, communities and/or other message or communication facilities, Users agree to use the community areas only to send and receive messages and material that are proper and related to the particular forum. By way of example, and not as limitation, Users agree not to:
10.24. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information. Use the Site for any purpose which is in violation of local, state, national or international law. Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party. Upload files that contain viruses, corrupted files, or any other similar software or Services that may damage the operation of another's computer. Advertise or offer to sell any goods or services for any commercial purpose on the Site which are not relevant to the services offered on the Site or are in any manner incorrect, inaccurate, false misleading or otherwise illegal. Conduct or forward surveys, contests, pyramid schemes or chain letters. Impersonate another person or allow any other person or entity to use a user's profile, information and/or identification to post or view comments. Post the same note repeatedly (referred to as 'spamming'). Spamming is strictly prohibited. Download any file posted by another user that user either knows, or reasonably should know, cannot be legally distributed through the Site. Restrict or inhibit any other user from using and enjoying the Community areas. Learner Information. All users agree that all information supplied by any user or any member of user's household is true and accurate. VoicePulse is not responsible for the accuracy or legality of any information so provided.
10.25. Modification of the Terms of this Agreement. VoicePulse reserves the right to make changes to this Agreement from time to time. VoicePulse shall provide notice to User of any substantive and/or material changes to this Agreement or any policies posted on the Site. It is, however, the responsibility of the user to review the terms of this Agreement each time any users view the Site. VoicePulse is not responsible for any damage that may result should user fail to review this User Agreement following any modifications that may be implemented herein.
10.26. Term of Agreement. This Agreement will become effective immediately upon any use by all users of the Site or Service and shall remain effective unless terminated by either party as provided hereunder. Either party may terminate this Agreement by providing the other with written or email notice of such termination which shall be effective immediately upon delivery of such notice to the other party and subject to the conditions set forth in the section TERM. Furthermore, VoicePulse may terminate this Agreement between any user immediately for any breach of this Agreement or any applicable policy of VoicePulse as posted on the Site from time to time. No reimbursements for any fees charged in connection with services offered on the Site shall be issued where reason for termination is due to the violation of any of the terms and conditions set forth herein or in any other policy posted on this Site. In the event of termination or expiration, the following sections shall survive: TERM; Term of Agreement; Ownership; Disclaimer; Limitation of Liability; Notice; and Miscellaneous.
10.27. Intellectual Property Rights. All text, graphics, editorial content, data, formatting, graphs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively, "Proprietary Material") that Users see or read on the Site is owned by VoicePulse or is used with permission of the rightful owner. This Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. VoicePulse owns all Proprietary Material as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. Users may not copy, download, use redesign, reconfigure or re-transmit anything from the VoicePulse Site without VoicePulse's prior express written permission. Furthermore, Users are not allowed to post or distribute any material they do not own, or which they do not have permission to use. Violation of this policy may result in copyright, trademark or other intellectual property rights violations, and subject Users to termination from the use of this Site or civil or criminal penalties.
10.28. In addition, the Site contains material protected by the domestic and international laws of copyright, patents or other proprietary rights and laws. Any use of such Proprietary Material, other than as permitted herein, is expressly prohibited without the prior permission of VoicePulse and/or the relevant right holder.
10.29a. PC Magazine Best of 2004 Award Logo is a trademark of Ziff Davis Publishing Holdings Inc. Used under license.
10.30. Copyright Complaints and Copyright Agent. VoicePulse respects the intellectual property of others, and asks Users to do the same. VoicePulse is in compliance with the Digital Millennium Copyright Act. In order to protect intellectual property from misuse, we ask Users to help us. If Users believe, in good faith, that any materials on the Site infringe upon Users' copyrights, please provide VoicePulse's Copyright Agent with the following information: 1. An electronic or physical signature of the owner of the copyright or of the person authorized to act on behalf of the owner of the copyright interest; 2. A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Site where the material that you claim is infringing is located. Include enough information to allow VoicePulse to locate the material and explain why you believe an infringement has taken place; 3. A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published; 4. Your address, telephone number and email address; 5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and 6. A statement by you, made under penalty of perjury, that the information in your Notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf.
10.31. VoicePulse's Copyright Agent for Notice of claims of copyright infringement can be reached as follows:
10.31.1. By postal mail at:General Counsel and Copyright Agent c/o VoicePulse
10.31.2. By email: firstname.lastname@example.org
10.32. VoicePulse will terminate access to the Site and Service of those who engage in repeated acts of infringement.
10.33. Limited License. VoicePulse grants its users a nonexclusive, revocable right to use the Site provided that users do not (i) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, (ii) modify or attempt to modify the Site in any manner or form.
10.34. Modifications to the Site. VoicePulse reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Site or Service or any content or information on the Site with or without notice to user. Users agree that VoicePulse shall not be liable to any user or any third party for any modification or discontinuance of the Site or Service.
10.35. Privacy. VoicePulse's Privacy Statement located on its Site as modified by VoicePulse from time to time shall govern any disclosure or use of user's personal information. By using this Site or the Service, you do hereby represent, understand and agree that you have reviewed and agree to those terms.
10.36. Learner account, password and security. Users are responsible for maintaining the confidentiality of any password and account number provided by themselves or VoicePulse for accessing the Site or Service, and are fully responsible for all activities that occur under user's password or account. User agrees to immediately notify VoicePulse of any unauthorized use of a user's password or account or any other breach of security.
10.37. No Agency. You and VoicePulse are not legally affiliated in any way by virtue of your membership or usage of VoicePulse's Site or Service or intellectual property other then the terms and conditions stated in this User Agreement and no independent contractor, agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. VoicePulse is not an employment service and does not serve as an employer of any parties that may use this Site. As such, VoicePulse expressly disclaims any liability that may arise between users of its Site.
10.38. Disclaimer of Warranties. USER EXPRESSLY AGREES THAT THE USE OF THE SITE AND SERVICE IS AT USER'S SOLE RISK. NEITHER VOICEPULSE NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SITE. THE SITE AND SERVICE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER VOICEPULSE NOR ITS LICENSORS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE INFORMATION APPEARING ON THE SITE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF YOUR USE OF THE INFORMATION. VOICEPULSE AND AFFILIATES DO NOT WARRANT THAT THE SITE IS FREE OF VIRUSES, WORMS , TROJAN HORSES OR OTHER HARMFUL COMPONENTS. VOICEPULSE AND AFFILIATES TAKE REASONABLE MEASURES TO ENSURE THAT INFORMATION PROVIDED BY USERS IS DISCLOSED ONLY TO THOSE SPECIFIED BY USERS. VOICEPULSE CANNOT AND DOES NOT, HOWEVER, GUARANTEE THAT THE PERSONAL INFORMATION ENTERED BY USERS WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS. USERS AGREE NOT TO HOLD VOICEPULSE, PRINCIPALS, AGENTS, CONTRACTORS EMPLOYEES AND AFFILIATES LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH MISAPPROPRIATION, INTERCEPTION, DELETION, DESTRUCTION OR USE OF INFORMATION PROVIDED THROUGH THE SITE. VOICEPULSE AND AFFILIATES ARE NOT AND SHALL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING FROM THE USE OR INABILITY TO USE THE SITE OR SERVICE. SHOULD ANY INTERRUPTION OCCUR WITH THE SITE OR SERVICE, WHETHER WITHIN THE CONTROL OF VOICEPULSE OR NOT, VOICEPULSE EXPRESSLY DICLAIMS ANY LIABILITY WHATSOEVER FOR ANY DAMAGES, INCIDENTAL OR CONSEQUENTIAL THAT MAY RESULT TO ANY PARTY INCLUDING ANY USER (WHETHER A PAYING MEMBER/USER OR NOT) OF THE SITE OR SERVICE. WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICE OR THE DEVICE OR ANY SERVICES PROVIDED BY ANY THIRD PARTIES, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. WE ARE NOT THE MANUFACTURER OF THE DEVICE AND ANY STATEMENT REGARDING IT SHOULD NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
10.39. Limitation of Liability. Under no circumstances will VoicePulse or its Affiliates be liable to any party for any indirect, incidental, consequential, special or exemplary damages arising from any provision of this Agreement. Furthermore, the aggregate liability of VoicePulse or its Affiliates arising with respect to this Agreement and the Site will not exceed the total amounts paid by user in the previous twelve (12) months under this Agreement. Any notice or other communication to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail.
10.40. Arbitration. Any controversy or claim arising out of or relating to this Agreement or our services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of New Jersey and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or VoicePulse may seek any interim or preliminary relief from a court of competent jurisdiction in the State of New Jersey , necessary to protect the rights or property of you or VoicePulse pending the completion of arbitration.
10.42. Miscellaneous. Nothing in this Agreement shall be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. This Agreement shall be interpreted in accordance with the laws of the State of New Jersey (excluding any rules governing choice of laws) and any legal proceeding arising out this Agreement will occur in the State of New Jersey . This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. This Agreement (and the policies referenced herein and incorporated by reference) constitutes the entire agreement between VoicePulse and any user with respect to the subject matter hereof, and users have not relied upon any promises or representations by VoicePulse with respect to the subject matter except as set forth herein.