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Digis
Unlimited Phone Terms Of Service
(customer service agreement)
1/08/2007
These Terms of Service ("TOS") constitute the agreement ("Agreement")
between DIGIS ("We", "Us" or "Digis")
and the User ("You," "User" or "Customer")
of Digis' residential and small business communications Services
and any related products or Services ("Service"). This
Agreement governs both the Service and any Devices, such as an
IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter
or any other IP connection Device ("Device" or "Equipment"),
used in conjunction with the Service.
BY USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE
TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND
FULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. EMERGENCY SERVICES - 911 DIALING
Digis 911 Dialing is similar in operation to traditional 911 Services
except for the fact that a power outage or broadband Service outage
will result in the inability to complete any call, including 911
calls. In some cases Service outages outside of your local area
will result in the inability to complete calls. We recommend that
our Customers maintain an active portable cellular telephone to
be used in the event of an emergency during a Service outage. Following
a power failure or disruption, You may need to reset or reconfigure
the Device prior to utilizing the Service, including 911 Dialing.
New Service orders and Service moves require 14 business days
processing time to update the databases that the Public Safety
Answering Point serving your area uses to retrieve address location
information based on Your telephone number when You dial 911. You
must notify Digis in advance and in writing when the Service is
moved.
It is always a good idea to educate all Users of any 911 Service
that it is important to make sure any emergency Services dispatcher
has the correct address information. Young children that know how
to dial a phone should also be able to tell someone their complete
address and phone number. This is basic safety education that is
the responsibility of the parent or guardian. We urge You to make
sure that every member of Your household can recite this information
if the need to do so arises. We hope that You and Your family never
have the need to dial 911, but it is better to be prepared if the
need arises. It is the Customer's responsibility to educate all
members of the household and visitors about the limitations of
the Digis 911 dialing Service.
Service outages or suspensions or terminations of Service by Digis
will prevent all Services, including 911 Dialing, from functioning.
If there is a Service outage for any reason, such outage will prevent
all Service, including 911 Dialing, from functioning. Such outages
may occur for a variety of reasons, including, but not limited
to, those reasons described elsewhere in this Agreement. There
may be a greater possibility of network congestion and/or reduced
speed in the routing of a 911 Dialing call made utilizing the Service
as compared to traditional 911 dialing over traditional public
telephone networks.
We do not have any control over whether, or the manner in which,
calls using our 911 Dialing Service are answered or addressed by
any local emergency response center. We disclaim all responsibility
for the conduct of local emergency response centers and the national
emergency calling center. We rely on third parties to assist us
in routing 911 Dialing calls to local emergency response centers
and to a national emergency calling center. We disclaim any and
all liability or responsibility in the event such third party data
used to route calls is incorrect or yields an erroneous result.
Neither Digis nor its officers or employees may be held liable
for any claim, damage, or loss, and You hereby waive any and all
such claims or causes of action, arising from or relating to our
911 Dialing Service unless such claims or causes of action arose
from our gross negligence, recklessness or willful misconduct.
You shall defend, indemnify, and hold harmless Digis, its officers,
directors, employees, affiliates and agents and any other Service
provider who furnishes Services to You in connection the Service,
from any and all claims, losses, damages, fines, penalties, costs
and expenses (including, without limitation, attorneys fees) by,
or on behalf of, You or any third party relating to the absence,
failure or outage of the Service, including 911 Dialing, incorrectly
routed 911 Dialing calls, and/or the inability of any User of the
Service to be able to use 911 Dialing or access emergency Service
personnel.
2. SERVICE
Service is offered on a monthly basis for a term that begins on
the date that Digis activates Your Service and ends on the day
before the same date in the following month. Subsequent terms of
this Agreement automatically renew on a monthly basis 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 are
purchasing the Service for full monthly terms, meaning that if
You attempt to terminate Service prior to the end of a monthly
term, You will be responsible for the full month's charges to the
end of the then-current term, including, without limitation, unbilled
charges, plus a termination fee, if applicable, all of which will
immediately become due and payable. You will also be responsible
for the next full month's charges in the event that You do not
provide the requisite ten-day notice of termination prior to the
expiration of the then-current term. Expiration of the term or
termination of Service will not excuse You from paying all accrued
and unpaid charges due under this Agreement
If You subscribe to Digis' residential Services, the Service and
the Device are provided to You solely for residential use. You
shall not resell or transfer the Service or the Device to another
party. You are prohibited from using the Service or the Device
for auto-dialing, continuous or extensive call forwarding, telemarketing
(including, without limitation, charitable or political solicitation
or polling), fax or voicemail broadcasting or fax or voicemail
blasting. We reserve the right to immediately terminate or modify
Your Service if We determine, in our sole and absolute discretion,
that Your use of the Service or the Device is, or at any time was,
inconsistent with normal residential usage patterns. In addition,
You will be required to pay our higher rates for commercial Service
for all periods in which Your use of the Service or the Device
was inconsistent with normal residential use.
If You subscribe to Digis' Business Services, the Service and
Device are provided to You as a small business User. You shall
not resell or transfer the Service or the Device to another party.
You are prohibited from using the Service or the Device for auto-dialing,
continuous or extensive call forwarding, telemarketing (including,
without limitation, charitable or political solicitation or polling),
fax or voicemail broadcasting or fax or voicemail blasting. We
reserve the right to immediately terminate or modify Your Service
if We determine, in our sole and absolute discretion, that You
have at any time used the Service or the Device for any of the
aforementioned or similar activities.
The Service is not a telecommunications Service and We provide
it on a best efforts basis. Important distinctions exist between
telecommunications Service and the Service offering that We provide.
The Service is subject to different regulatory treatment than telecommunications
Service. This treatment may limit or otherwise affect Your rights
of redress before regulatory agencies.
The Service does not support 0+ or operator assisted calling (including,
without limitation, collect calls, third party billing calls or
calling card calls). The Service may not support 311, 511 and/or
other x11 (other than certain specified dialing such as 911 and
411, which are provided for elsewhere in this Agreement) Services
in one or more (or all) Service areas.
The phone numbers You obtain from us will not be listed in any
telephone directories. Phone numbers transferred from Your local
phone company may, however, be listed. As a result, someone with
Your phone number may not be able to utilize a reverse directory
to lookup Your address.
The Service may not be compatible with some home security systems.
You may be required to maintain a telephone connection through
Your local exchange carrier in order to use any alarm monitoring
functions for any security system installed in Your home or business.
You are responsible for contacting the alarm monitoring company
to test the compatibility of any alarm monitoring or security system
with the Service.
The amount of e mail storage space per member is currently limited
to 10 megabytes and some e mail messages may not be processed due
to space constraints or outbound or inbound message limitations. You
agree that Digis is not responsible or liable for the deletion
or failure to store messages or other information.
You authorize Digis to act on your behalf, as your agent, in moving
your telephone number and related local and long distance services
from your current provider to Digis or any of its wholesale service
providers. You acknowledge that Digis may change wholesale providers
from time to time and may move your phone number from one wholesale
carrier to another at any time. You acknowledge that Digis will
become the customer of record for all phone numbers that we move
or "port" to the Service.
3. PROHIBITED USES
You shall use the Service and the Device only for lawful purposes.
We reserve the right to immediately terminate Your Service if,
in our sole and absolute discretion, We determine that You have
used the Service or the Device for an unlawful purpose. In the
event of such termination, You will be responsible for the full
month's charges to the end of the current term, including, without
limitation, unbilled charges, plus a termination fee, if applicable,
all of which will become immediately due and payable upon termination
of Your Service. If We believe that You have used the Service or
the Device for an unlawful purpose, We may forward the relevant
communication and other information, including Your identity, to
the appropriate authorities for investigation and prosecution.
You hereby consent to our forwarding of any such communications
and information to these authorities. In addition, Digis will provide
information in response to law enforcement requests, subpoenas,
court orders, to protect it's rights and property and in the case
where failure to disclose the information may lead to imminent
harm to the Customer or others.
You shall not use the Service or the Device in any way that is
threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another's privacy, or any similar behavior.
We reserve the right to immediately terminate Your Service if,
in our sole and absolute discretion, We determine that You have
used the Service or the Device in any of the aforementioned ways.
In the event of such termination, You will be responsible for the
full month's charges to the end of the current term, including,
without limitation, unbilled charges, plus a termination fee, if
applicable, all of which will become immediately due and payable
upon termination of Your Service. If We believe that You have used
the Service or the Device in any of the aforementioned ways, We
may forward the relevant communication and other information, including
Your identity, to the appropriate authorities for investigation
and prosecution. You hereby consent to our forwarding of any such
communications and information to these authorities. In addition,
Digis will provide information in response to law enforcement requests,
subpoenas, court orders, to protect it's rights and property and
in the case where failure to disclose the information may lead
to imminent harm to the Customer or others
Although We encourage You to use the Service to place calls to
foreign countries from within the United States, We do not presently
offer or support the Service in any countries other than the United
States. If You use the Service or the Device outside of the United
States, You will be solely responsible for any violations of local
laws and regulations resulting from such use. We reserve the right
to terminate Your Service immediately if We determine, in our sole
and absolute discretion, that You have used the Service or the
Device outside of the United States.
You agree not to; use the Service in connection with surveys,
contests, pyramid schemes, chain letters, junk e mail, spamming
or any duplicative or unsolicited messages (commercial or otherwise); Defame,
abuse, harass, stalk, threaten or otherwise violate the legal rights
(such as rights of privacy and publicity) of others; Publish,
distribute or disseminate any inappropriate, profane, defamatory,
infringing, obscene, indecent or unlawful material or information;
Advertise or offer to sell or buy any goods or Services for any
non personal purpose; Harvest or otherwise collect information
about others, including e mail addresses, without their consent; Create
a false identity for the purpose of misleading others as to the
identity of the sender or the origin of a message; Use,
download or otherwise copy, or provide (whether or not for a fee)
to a person or entity that is not a Service member any directory
of the Service members or other User or usage information or any
portion thereof other than in the context of Your use of the Service
as permitted under the TOS. Transmit or upload any material
that contains viruses, trojan horses, worms, time bombs, cancel
bots, or any other harmful or deleterious programs; Transmit
or upload any material that contains software or other material
protected by intellectual property laws, rights of privacy or publicity
or any other applicable law unless You own or control the rights
thereto or have received all necessary consents; Interfere
with or disrupt networks connected to the Service or violate the
regulations, policies or procedures of such networks; Attempt
to gain unauthorized access to the Service, other accounts, computer
systems or networks connected to the Service, through password
mining or any other means; Host any type of publicly accessible
file sharing, gaming, or email server including, but not limited
to HTTP, FTP, SMTP, POP3, and Peer-to-Peer; Interfere with another
member's use and enjoyment of the Service or another individual
or entity's use and enjoyment of similar Services.
Digis will immediately terminate any account which it believes,
in its sole discretion, is transmitting or is otherwise connected
with any spam or other unsolicited bulk e mail. In addition, because
damages are often difficult to quantify, if actual damages cannot
be reasonably calculated then You agree to pay Digis liquidated
damages of $5 (US) for each piece of spam or unsolicited bulk e
mail transmitted from or otherwise connected with Your account,
otherwise You agree to pay Digis' actual damages, to the extent
such actual damages can be reasonably calculated.
Digis has no obligation to monitor the Service or any User's use
thereof or retain the content of any User session. However, Digis
reserves the right at all times to monitor, review, retain and/or
disclose any information as necessary to satisfy any applicable
law, regulation, legal process or governmental request. Digis reserves
the right to block access to any TCP/IP protocol ports required
to enforce compliance with the TOS at any time with no notice.
You agree not to share (or re-sell) Your Digis Service with anyone
not residing at the Service address listed on Your subscriber agreement.
You also agree to use wired equivalent privacy or another equally
secure method of preventing others from being able to connect to
any wireless or wired networking Device used in conjunction with
Your Digis Service.
4. COPYRIGHT, TRADEMARK, UNAUTHORIZED USAGE OF DEVICE, FIRMWARE
OR SOFTWARE
The Service and Device and any firmware or software used to provide
the Service or provided to You in conjunction with providing the
Service, or embedded in the Device, and all Services, information,
documents and materials on our Websites are protected by trademark,
copyright or other intellectual property laws and international
treaty provisions. All of our Websites, corporate names, Service
marks, trademarks, trade names, logos and domain names (collectively "marks")
are and will at all times remain our exclusive property. Nothing
in this Agreement grants You the right or license to use any of
our marks.
You have not been granted any license to use the firmware or software
used to provide the Service or provided to You in conjunction with
providing the Service, or embedded in the Device, other than a
nontransferable, revocable license to use such firmware or software
in object code form (without making any modification thereto) strictly
in accordance with the terms and conditions of this Agreement.
You expressly agree that the Device is exclusively for use in connection
with the Service and that We will not provide any passwords, codes
or other information or assistance that would enable You to use
the Device for any other purpose. We reserve the right to prohibit
the use of any interface Device that We have not provided to You.
You hereby represent and warrant that You possess all required
rights, including software and/or firmware licenses, to use any
interface Device that We have not provided to You. In addition,
You shall indemnify and hold us harmless against any and all liability
arising out of Your use of such interface Device with the Service.
You shall not reverse compile, disassemble or reverse engineer
or otherwise attempt to derive the source code from the binary
code of the firmware or software.
You shall not change the electronic serial number or Equipment
identifier of the Device or to perform a factory reset of the Device
without our prior written consent. We reserve the right to terminate
Your Service if We believe, in our sole and absolute discretion,
that You have tampered with the Device. In the event of such termination,
You will remain responsible for the full month's charges to the
end of the current term, including, without limitation, unbilled
charges, plus a termination fee, if applicable, all of which will
immediately become due and payable. You shall not attempt to hack
or otherwise disrupt the Service or make any use of the Service
that is inconsistent with its intended purpose.
You shall notify us immediately, in writing or by calling our
Customer support line, if the Device is stolen or if You become
aware at any time that Your Service is being stolen, fraudulently
used or otherwise being used in an unauthorized manner. When You
call or write, You must provide Your account number and a detailed
description of the circumstances of the Device theft, fraudulent
use or unauthorized use of Service. Failure to do so in a timely
manner may result in the termination of Your Service and additional
charges to You. Until such time as We receive notice of the theft,
fraudulent use or unauthorized use, You will be liable for all
use of the Service using a Device stolen from You and any and all
stolen, fraudulent or unauthorized use of the Service.
5. CANCELLATION AND TERMINATION OF SERVICE
If all Equipment provided by Digis is not returned within 14 days
of cancellation of Service You agree to pay Digis the greater of
$70 or the current replacement cost of the Equipment provided. You
authorize Digis and its agents to charge the Equipment replacement
charge to the credit card on file with Digis. If Digis is unable
to obtain a charge authorization for the full amount due, You agree
to provide alternative payment in the form of a money order, cashiers
check, or other certified bank check within 10 days of notification
of the amount due. You bear all risk of loss of, theft of, casualty
to or damage to the Equipment; from the time it is shipped to You
until the time (if any) when it is returned to us in accordance
with this Agreement.
Upon the termination of Your Service, We may, in our sole and
absolute discretion, release to Your new Service provider the telephone
number that You ported (transferred or moved over) to us from Your
previous Service provider and used in connection with Your Service
if; such new Service provider is able to accept such number, Your
account has been properly terminated, Your account is completely
current, including payment for all charges and applicable termination
fees, and You request the transfer upon terminating Your account.
We reserve the right to suspend or discontinue the Service generally,
or to terminate Your Service, at any time in our sole and absolute
discretion. If We discontinue the Service generally, or terminate
Your Service without a stated reason, You will only be responsible
for charges accrued through the date of termination, including
a pro-rated portion of the final month's charges. If Your Service
is terminated on account of Your breach of any provision of this
Agreement, You will be responsible for the full month's charges
to the end of the current term, including, without limitation,
unbilled charges, plus the termination fee, if applicable, all
of which will immediately become due and payable.
6. CHARGES, PAYMENTS, TAXES
When the Service is activated, You must provide us with a credit
or debit card number from a card issuer that We accept. We reserve
the right to stop accepting credit or debit cards from one or more
issuers. If Your credit or debit card expires, You close Your account,
Your billing address changes, or Your credit or debit card is cancelled
and replaced on account of loss or theft, You must advise us at
once. We will bill all charges, applicable taxes and surcharges
monthly in advance (except for usage-based charges, which will
be billed monthly in arrears, and any other charges which We decide
to bill in arrears) to Your credit or debit card, including but
not limited to; activation fees, monthly Service fees, international
usage charges, advanced feature charges, Equipment purchases, termination
fees, and shipping and handling charges.
The amount of such fees and charges shall be published on our
Website and may change from time to time. Monthly invoices will
be available on our Website from the date of the invoice to the
date of the next invoice. We reserve the right to bill at more
frequent intervals if the amount You owe to us for pay per use
Services at any time exceeds $50. Any usage charges will be billed
in increments that are rounded up to the nearest minute except
as otherwise set forth in the rate schedules found on our Website.
You must notify us in writing within seven days after receiving
Your credit or debit card statement if You dispute any Digis charges
on that statement or You will be deemed to have waived any right
to contest such charges. All notices of disputed charges should
be sent to:
Digis
220 N 1300 W
Pleasant Grove, UT 84062
We only accept payment by credit or debit card. Your subscription
to the Service authorizes us to charge Your credit or debit card.
This authorization will remain valid until 30 days after We receive
written notice from You terminating our authority to charge Your
credit or debit card, whereupon We will charge Your credit or debit
card for the termination fee, if applicable, and any other outstanding
charges and terminate Your Service. We may terminate Your Service
at any time in our sole and absolute discretion if any charge to
Your credit or debit card is declined or reversed, Your credit
or debit card expires and You have not provided us with a valid
replacement credit or debit card or in case of any other non-payment
of account charges.
If Your Service is terminated, You will remain fully liable to
us for all charges pursuant to this Agreement and any and all costs
We incur to collect such amounts, including, without limitation,
collection costs and attorney's fees.
You are responsible for all applicable federal, state, provincial,
municipal, local or other governmental sales, use, excise, value-added,
personal property, public utility or other taxes, fees or charges
now in force or enacted in the future, that arise from or as a
result of Your subscription or use or payment for the Service or
a Device. Such amounts are in addition to payment for the Service
or Devices and will be billed to Your credit card as set forth
in this Agreement. If You are exempt from payment of such taxes,
You must provide us with an original certificate that satisfies
applicable legal requirements attesting to tax-exempt status. Tax
exemption will only apply from and after the date We receive such
certificate.
We offer a 30-day money back guarantee from the date of activation
of Your Service. The money back guarantee applies only to the first-ordered
line per account, not to additional or secondary lines. We will
refund the monthly charge for the first month of Service provided
that; You have not exceeded 250 minutes of usage, You cancel Your
Service within the applicable period; You return the Equipment
to us in original condition, normal Wear and tear excluded, within
14 days after the cancellation of Your Service. Federal excise
taxes and any other applicable taxes cannot be refunded. You will
be responsible for any pay per use charges. We reserve the right
to terminate or revoke this money back guarantee at any time, without
prior notice.
Charges for Directory Assistance Calls (411). We will charge You
$1.25 for each call made to Digis directory assistance.
7. LIMITATION OF LIABILITY, INDEMNIFICATION, WARRANTIES
We will not be liable for any delay or failure to provide the
Service, including 911 Dialing, at any time or from time to time,
or any interruption or degradation of voice quality that is caused
by any of the following: an act or omission of an underlying carrier,
Service provider, vendor or other third party; Equipment, network
or facility failure; Equipment, network or facility upgrade or
modification; force major events such as (but not limited to) acts
of God, acts of nature, strikes, fire, war, riot, acts of terrorism
and government actions; Equipment, network or facility shortage;
Equipment or facility relocation; Service, Equipment, network or
facility failure caused by the loss of power to You; outage of,
or blocking of ports by, Your ISP or broadband Service provider
or other impediment to usage of the Service caused by any third
party; any act or omission by You or any person using the Service
or Device provided to You; or any other cause that is beyond our
control, including, without limitation, a failure of or defect
in any Device, the failure of an incoming or outgoing communication,
the inability of communications (including, without limitation,
911 Dialing) to be connected or completed, or forwarded. Our aggregate
liability under this agreement will in no event exceed the Service
charges with respect to the affected time period.
IN NO EVENT WILL DIGIS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES
OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES
TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL
INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF
REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY
TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE
OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY
TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT
LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND
APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY
PARTICULAR TYPE OF DAMAGES.
You shall defend, indemnify, and hold harmless Digis, its officers,
directors, employees, affiliates and agents and any other Service
provider who furnishes Services to You in connection with the Service,
from any and all claims, losses, damages, fines, penalties, costs
and expenses (including, without limitation, attorneys fees) by,
or on behalf of, You or any third party or User of the Service,
relating to the Services, including, without limitation, 911 Dialing,
or the Device.
The provisions of this Agreement that by their sense and context
are intended to survive the termination or expiration of this Agreement
shall survive.
WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE
OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR
ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE
OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S
REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT
THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION,
ERROR, AND DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA
OR INFORMATION. NEITHER DIGIS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO
FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION
WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR
OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED
ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA
FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT
MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH
DAMAGE OCCURS AS A RESULT OF DIGIS' OR ITS SERVICE PROVIDER'S OR
VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE
SERVICE OR DEVICE, IF ANY, BY DIGIS OR DIGIS' AGENTS OR INSTALLERS
ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
Except as set forth herein, if You received the Device new from
us and the Device included a limited warranty at the time of receipt,
You must refer to the separate limited warranty document provided
with the Device for information on the limitation and disclaimer
of certain warranties. Remedies for breach of any such warranties
will be limited to those expressly set forth in such documentation.
If Your Device did not include a limited warranty from us at the
time of receipt, You are accepting the Device "as is".
You are not entitled to replacement, repair or refund in the event
of any defect.
OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN
THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER
LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY
WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR
PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE
OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY
THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR
WILL MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED
TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN
THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO
NOT APPLY TO BUSINESS PLUS CUSTOMERS.
No provision of this Agreement provides any person or entity not
a party to this Agreement with any remedy, claim, liability, reimbursement,
or cause of action or creates any other third party beneficiary
rights.
You will be liable for any and all liability that may arise out
of the content transmitted by You or to any person, whether authorized
or unauthorized, using Your Service or Device (each such person,
a "User"). You shall assure that Your and Your User's
use of the Service and content comply at all times with all applicable
laws, regulations and written and electronic instructions for use.
We reserve the right to terminate or suspend Your Services and
remove Your or Your Users' content from the Service, if We determine,
in our sole and absolute discretion, that such use or content does
not conform to the requirements set forth in this Agreement or
interferes with our ability to provide Services to You or others.
Our action or inaction under this Section will not constitute any
review or approval of Your or Users' use or content.
8. MISCELLANEOUS
The Agreement and the relationship between You
and us is governed by the laws of the State of Utah without
regard to its conflict of law provisions. To the extent court action
is initiated to enforce an arbitration award or for any other reason,
You shall submit to the personal and exclusive jurisdiction of
the courts located within the state of Utah and waive any objection
as to venue or inconvenient forum.
Any dispute or claim between You, any member of
Your household or any guest or employee of You and us arising out
of or relating to the Service or Device will be resolved by arbitration
before a single arbitrator administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules.
The arbitration will take place in Salt Lake City, Utah. The arbitrator's
decision will follow the plain meaning of the relevant documents,
and will 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 arbitrators may be entered in any court having jurisdiction
thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY
CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE
MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF
ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated
individually. You shall not bring, or join any class action of
any kind in court or in arbitration or seek to consolidate or bring
previously consolidated claims in arbitration. THIS ARBITRATION
PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND
AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL
PROCEEDINGS IN, UTAH.
Our failure to exercise or enforce any right or provision of this
Agreement will not constitute a waiver of such right or provision.
This Agreement, including any future modifications as may occur
within the terms of the Agreement, and the rates for Services found
on our Website constitute the entire agreement between You and
Digis and govern the use of the Service by You, members of Your
household, guests and employees. This Agreement supersedes any
prior agreements between You and Digis and any and all prior or
contemporaneous statements, understandings, writings, commitments,
or representations concerning its subject matter.
If any part of this Agreement is legally declared invalid or unenforceable,
all other parts of this Agreement will remain valid and enforceable.
Such invalidity or non-enforceability will not invalidate or render
unenforceable any other portion of this Agreement.
9. FUTURE CHANGES TO THIS AGREEMENT
We may change the terms and conditions of this Agreement from
time to time. Notices will be considered given and effective on
the date posted on www.digis.net. Such changes will become binding
on You on the date they are posted to our Website and no further
notice by us is required upon Your continued use of the Service.
The Agreement as and when posted supersedes all previously agreed
to electronic and written terms of Service, including, without
limitation, any terms included with the packaging of the Device
and also supersedes any written terms provided to Retail Customers
in connection with retail distribution, including, without limitation,
any written terms enclosed within the packaging of the Device.
10. PRIVACY
Digis utilizes, in whole or in part, the public Internet and third
party networks to transmit voice and other communications. DIGIS
is not liable for any lack of privacy which may be experienced
with regard to the Service.
11. LANGUAGE
It is the express will of the parties that this agreement and
all related documents have been drawn up in English.
COPYRIGHT AND TRADEMARK NOTICES: All contents of the products
and Services referenced herein are either trademarks or registered
trademarks of Digis.
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