Terms of Service
TERMS OF SERVICE AND PRIVACY STATEMENT
These Terms of Service constitute the agreement between QT Talk, LLC. and the user of QT Talk's communications services and any related products or services. This agreement governs both our service and any QT Talk-approved or QT Talk-provided devices used with our service. It applies to all lines on each QT Talk account. QT Talk, LLC. is sometimes referred to as "we," "us," "our," or "QT Talk" and the user is sometimes referred to as "you," "your," or "user," or "customer".
By subscribing to or using our service, you agree to these Terms of Service. All
2. EMERGENCY SERVICES - 911 DIALING.
2.1. 911 Dialing.
QT Talk 911 dialing is different than traditional 911 service.
2.2. QT Talk 911 Disclosure Agreement.
911 DISCLOSURE DURING SUBSCRIBE
QT Talk customer's 911 services differ from traditional 911, but is a reliable means of emergency dialing.
Most of our customers have access to basic 911 services. With basic 911 service, when you dial 911, local emergency operators answering the call may not see your QT Talk telephone number or your registered address because the emergency center may not be equipped to receive, capture or retain your QT Talk telephone number and registered address, 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 or dispatch help if the call is dropped or disconnected, or if you are unable to speak.
For each phone line you must provide a registered address where you will be using our service at the time you subscribe. Additionally, if you move your device to another location, you must update your address. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. For purposes of 911 dialing, you may register only one location at a time for each phone line.
Please remember that our 911 Dialing service will not function in the event of a broadband or power outage or if your broadband, Internet Service Provider (ISP), or QT Talk phone service is terminated.
Emergency 911 calls are not supported from Wi-Fi, QT Talk V-Phone, softphone or calls made on the QT Talk network from access numbers.
3. MONEY BACK GUARANTEE.
We offer a money back guarantee if you terminate your service within 30 days from your subscription date. The subscription date is the date you order service or the date we successfully process your payment, whichever is later. It is not the day you receive the equipment you ordered or the first day you use the service.
3.1. We offer a money back guarantee if you terminate your service within 30 days from your subscription date. We will refund one credit for the activation fee you paid, the service charge for the first service term, initial shipping charges, the price you were charged by us for your device and the $39.99 disconnection fee if you meet the following conditions:
Our money back guarantee does not apply to any charges for international usage, payphone calls to QT Talk toll free numbers, and directory assistance. In addition, we may not be able to refund all of the taxes that you paid.
Due to the nature of how QT Talk bills a customer's account, you may be billed for additional charges for the time between disconnection and return of the equipment. QT Talk will use commercially reasonable efforts to refund promptly any charges (less any amounts that you owe to us) to your account following the return of your device. If you have a billing dispute following the termination of your account, please contact us at http://www.qttalk.com/contact.aspx.
3.2. We have the right to discontinue or revoke our 30 day money back guarantee for all customers at any time, without prior notice.
4.1. Service Distinctions.
Our service is not a telecommunications service, and we provide it on a best efforts basis. There are important distinctions between a telecommunications service and our service. Our service is subject to different regulatory treatment than a telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service.
4.2. Residential Use of Service and Device.
If you subscribe to our residential services, we provide you with service and the device solely for residential use.
4.3. Inconsistent Use.
If you use the service or the device in a way that is inconsistent with the normal use for your service or plan, you will be required to pay the rates for the service or plan that would apply to the way you used the service or device.
4.4. No 0+ or Operator Assisted Calling
Our service may Not Support x11 Calling. Our service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls. Our service may not support 311, 511, and other x11 services in one or more service areas. Our service does support specified dialing such as 911 and 411, which are provided for elsewhere in these Terms of Service.
4.5. No Directory Listing.
The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
4.6. Incompatibility with Other Services.
(a) Non-Voice Equipment Limitations.
You acknowledge that our service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, medical monitoring equipment, satellite television systems, and computer modems. You waive any claim against QT Talk for interference with or disruption of these services and equipment.
(b) Certain Broadband, Cable Modem, and Other Services.
You acknowledge that our service presently is not compatible with AOL cable broadband service and certain versions of TiVO. There may also be other services with which our service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using our service. We do not warrant that our services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our service with any particular broadband service.
5. LENGTH OF SERVICE.
5.1. Service Term.
Our standard service term is for one year unless otherwise agreed upon in writing. Your term begins on the subscription date, which is the date you first ordered service or the date we successfully process your payment, whichever is later. It is not the day you receive the equipment you ordered or the first time you use the service. You are purchasing our service for the full service term.
5.2. Automatic Renewal.
The terms of this agreement automatically renew for the same term unless you call us to cancel your service before the end of your current service term at 1-866-558-4169. Automatic renewal begins on the day after the last day of your term.
5.3. Other Commitments.
If you made a commitment as part of a promotional or plan benefit (such as an equipment upgrade, a free month of service, free installation, a rebate, or other incentive), unless otherwise specified in the offer you received, your commitment begins on the earlier of the day that you use the new equipment or accept the promotion or benefit. We will disclose the length of the commitment as part of the promotion or plan.
5.4. Our right to disconnect.
We have the right to suspend or discontinue service generally, or to disconnect your service, at any time. In addition, we reserve the right to immediately disconnect your service at any time without notice:
Our action or inaction under this section does not constitute any review or approval of your action or use or content.
5.5. Fees upon disconnection.
(a) Disconnection by you. If you attempt to disconnect service before the end of your current service term, you will be responsible for all the charges for your current term, including unbilled charges, plus any disconnection fee. In addition, if you disconnect service that is based on a commitment before the end of the commitment, you agree to pay us the applicable recovery fee.
(b) Disconnection by us without a reason. If we discontinue service generally, or disconnect your service without a stated reason, you will only be responsible for the charges that have accrued through the date of the disconnection, including a pro-rated portion of the final service term charges, and any recovery fees.
(c) Disconnection by us due to your violation of terms of service agreement. If we disconnect your service due to your violation of our terms of service, you will be responsible for all charges through the end of your current service term, including unbilled charges, plus any disconnection and any recovery fees.
(d) All of charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
5.6. Number Transfer or "Port" on Service Disconnection.
(a) Single line Accounts.
You may be able to take, or "port," your current number to another service provider once your account is paid in full. If you ask your new service provider to port a number from us, you must tell us to terminate your service when the port is completed or you may continue to incur charges on your QT Talk account. Once your port is completed and you tell us to terminate your service, you remain responsible for all charges and fees through the end of that billing cycle, including any cancellation fees. If a port is unsuccessful for any reason, your service and your agreement with us will not terminate, you will remain a QT Talk customer, and you will continue to be responsible for all charges and fees for your QT Talk service.
(b) Multiple-line Accounts.
If you request your new service provider to port a number from us and you have multiple numbers and/or additional devices such as the WiFi or Softphone on your account, the account must be first paid in full, then you must tell us to terminate all the services on your account, before the port is completed. If you do not tell us to terminate all numbers and devices, we will select the most appropriate billing plan for any remaining numbers and devices on your QT Talk account. You will continue to be responsible for all the charges and fees associated with the remaining services on your QT Talk account. Once the port is completed, you are also responsible for all charges and fees through the end of that billing cycle, including any cancellation fees for the ported number.
5.7. Termination of Service.
In order to terminate your service, you must contact our Customer Care Department, via telephone, at the following toll-free number: 1-866-558-4169. Our Account Management Department is available to assist you Monday-Friday 9:00 a.m. - 6:00 p.m. Eastern Standard Time.
6.1. Devices purchased from a retail provider.
(a) Return of Device. Except as provided in the limited warranty found in Section 7.1(b) below, if you purchased your device from a retail provider, you may return your device only to that retail provider. All device returns are subject to the return policy of the retail provider and are not eligible for our money back guarantee. We will not accept any device returned to us from a retail customer.
(b) Limited Warranty from QT Talk for retail customers only. We will provide a limited warranty on the device only for manufacturing defects for a period of 90 days from your subscription date. This retail customer limited warranty does not apply to any defect or failure other than a manufacturing defect. Without limiting the generality of the warranty, it does not apply to any defect caused by damage in transit, retailer handling, or your handling of your device. Some States do not allow limitations on how an implied warranty lasts, so the above limitation may not apply to you. For returns subject to this retail customer limited warranty, the following conditions must be satisfied:
We receive your device, in its original condition, reasonable wear and tear excluded, together with the original packaging, all parts, accessories, and documentation;
Before returning your device to us, and within 90 days from your subscription date, you need to obtain a valid return authorization number from our Customer Care department which you can reach at 1-866-558-4169; and http://www.qttalk.com/contact.aspx you pay all costs of shipping your device back to us.
6.2. Devices received from us.
(a) Limited Warranty. Except as set forth in these Terms of Service, if you received a device from us and the device included a limited warranty from another person (such as the manufacturer) at the time you received it, you should read the separate limited warranty document you got with the device for information on the limitation and disclaimer of certain warranties. We will provide a limited warranty on the device only for manufacturing defects for a period of 1 year from your subscription date. Some States do not allow limitations on how an implied warranty lasts, so the above limitation may not apply to you.
(b) Repair or replacement. Your only remedy for any breach of any limited warranty or other breach of any duty regarding a device is to get a repaired or replacement device by following our return procedures. This limited warranty applies in place of the limited warranty included with the device if the included limited warranty is less favorable to you than this warranty.
(c) Service Cancellation. If you cancel your service within the money back guarantee period, you may obtain a credit for the amount paid for the device, if you return your device to us according to the money back guarantee conditions.
(d) Receipt of damaged devices. If you receive cartons or devices that are visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our customer care department immediately at 1-866-558-4169.
(e) Ownership and Risk of Loss. You will own your device and bear all the risk of loss, theft, or damage. This risk is from the time we ship your device to you until the time you return it to us according to this agreement.
6.3. Tampering with the Device.
You may not change the electronic serial number or equipment identifier of your device or perform a factory reset of your device without first getting our written consent.
6.4. Prohibited Devices.
You are prohibited from using QT Talk services with any devices other than QT Talk-approved devices received from retailers or from us.
Other than express warranties for the device in the documentation that comes with your device and the retail customer limited warranty in this agreement, following the term of the limited warranty, we make no warranties of any kind, express or implied, and specifically disclaim, following the term of the limited warranty, 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 your requirements. This section does not limit any disclaimer or limitation of warranty in the documentation provided with your device. Device warranties do not apply to Business Plus customers.
This warranty gives you specific legal rights, and you may also have other rights which vary from State to State.
7. FEES, TAXES, AND OTHER CHARGES.
7.1. Fees and charges.
We will publish on our web site the fees and charges. These fees and charges may change from time to time. We may introduce new products and services at special introductory pricing. At our discretion, we may change introductory pricing. Where required by law, we will send notification of invoices to your email address on file with us. We reserve the right to bill you more frequently if you owe us more than $60.
QT Talk residential plans are intended for residential use only. Customers found exceeding normal usage per month of 1000 minutes for the North American Plan and the World Select Plan are subject to be billed on per minute basis after the 1000 minutes. Additional restrictions and fees may apply.
7.3. Billing increments.
We bill usage charges in full minute increments. We round partial minutes up to the next full minute, unless we state otherwise in the rate schedules on our web site. We bill fractional usage charges in full cents. We round up cents when the value is $.005 or more and down when the value is less than $.005, unless we state otherwise in the rate schedules on our website.
State and local governments may assess taxes, surcharges, or fees, or all of these, on your use of our service. These charges may be a flat fee or a percentage of your QT Talk charges and may change without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for all applicable taxes, fees, or charges for your subscription, use, or payment for our service or your device. These amounts are in addition to the payment for your service or devices. We will bill these charges to your payment method according to the terms in this agreement. If you are exempt from payment of any of these taxes, you must provide us with an original certificate that satisfies the legal requirements attesting to tax-exempt status. Tax exemption will only apply from the date we receive your certificate. QT Talk, LLC.., Attn: Tax Exemption, 5 Hanover, Suite 1412, New York, NY 10005
7.5. Payphone Charges.
If you use our "Toll Free Plus" feature, or any toll free feature that we offer in the future, we will recover from you any charges imposed on us either directly or indirectly for toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in any other way we decide is appropriate for the recovery of these costs.
7.6. Charges for Directory Calls (411).
We will charge you $0.99 for each call you make to QT Talk directory assistance.
7.7. Disconnection Fee.
You will be charged a disconnection fee of $39.99 per voice line if your service is disconnected, subject to state and local laws. The disconnection fee is waived if your service is disconnected ninety (90) days following your subscription date.
7.8. Recovery Fee.
If you disconnect service based on a commitment before the end of the commitment period, you agree to pay us the applicable recovery fee. A recovery fee is equal to the difference between the price you paid and the regular price of the good, service, or other benefit you received. Any recovery fees are cumulative and are in addition to any other amounts you may owe us, including any disconnection fees.
7.9. No Credit Allowances or Refunds for Prepaid Service Plan Customers.
Subject to our money back guarantee and law, we will neither credit nor refund any service fees or any other amounts you pay for any prepaid service plans.
8. BILLING AND PAYMENT.
We will bill you for each term of service. When you subscribe to our service, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be sent to the email address on record.
When you subscribe to our service, you authorize us to collect from your payment method. This authorization will remain valid until 30 days after you terminate our authority to charge your payment method. We will then charge you any disconnection fee and any other outstanding charges and disconnect your service.
If we disconnect your service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney's fees.
You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive 10 days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
8.5. Billing Disputes.
If you want to dispute any QT Talk charges on your statement, you must notify us within 7 days after you receive your statement from your bank or credit card issuer. If you do not dispute the charges within 7 days, you waive any right to contest the charges. 1-866-558-4169, http://www.qttalk.com/contact.aspx
9. PROHIBITED USES; UNLAWFUL USES AND INAPPROPRIATE CONDUCT.
9.1. Lawful purposes only.
You may use our service and your device only for lawful, proper and appropriate purposes. You may not use our service or your device in any way that is illegal, improper or inappropriate. A non-exhaustive list of examples of illegal, improper or inappropriate uses of our service and/or devices include:
threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. In addition, you shall not use our service or your device for auto-dialing continuous, or extensive call forwarding telemarketing (including charitable or political solicitation or polling) fax or voicemail broadcasting, or fax or voicemail blasting and, you shall not use our service or your device to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques, or other automated devices or programs to catalog, download, store, or otherwise reproduce or distribute information from our service or use any automated means to manipulate our service; use our service to violate any law, rule, or regulation; violate any third party's intellectual property or personal rights; or exceed your permitted access to our service.
We may monitor the use of our service for violations of this agreement. We may remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our service, or QT Talk, its parent, affiliates, directors, officers, agents, and employees from harm.
9.3. Providing information to authorities and third parties.
If we believe that you have used our service or your device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:
(a) in response to law enforcement or other governmental agency requests;
(b) as required by law, regulation, rule, subpoena, search warrant, or court order;
(c) as necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both;
(d) to protect QT Talk's rights and property; or in emergency situations where disclosure of such information is necessary to protect QT Talk customers or third parties from imminent harm.
9.4. Use of Service and Device by Customers Outside the United States.
Although we encourage you to use our service to call foreign countries from the United States and to use our service as you travel, the services are only offered and supported in the United States. Our service is designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is not within a QT Talk service area or your ISP or broadband provider places restrictions on using VoIP services, we do not claim that they will allow you to use our service. You will be solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service because of your use of our service.
9.5. No Transfer of Service.
You may not resell or transfer your service or your device or provide a telephone service to anyone else by using your QT Talk service or features of your QT Talk service without first getting our written consent.
9.6. No Alterations or Tampering.
If you copy or alter or have someone else copy or alter the firmware or software of the device in any way that facilitates a compromise of your service, you are responsible for any charges that result. You may not attempt to hack or otherwise disrupt our service or make any use of our service that is inconsistent with its intended purpose.
9.7. Theft of Service.
You may not use or obtain our service in any manner that avoids QT Talk policies and procedures, including an illegal or improper manner. You will notify us immediately at 1-866-558-4169 or http://www.qttalk.com/contact.aspx if your device is stolen or if you believe that your service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of service. If you fail to notify us in a timely manner, we may disconnect your service and levy additional charges on you. Until you notify us, you will be liable for all use of our service using a device stolen from you and
9.8. Unauthorized Usage of Device; Firmware or Software.
Except as stated for Business Plus customers, you have not been granted any license to use the firmware or software we use to provide our service or that we provide to you in providing our service, or that is embedded in your device, other than a nontransferable, revocable license to use the firmware or software in object code form (without making any modification to it) strictly according the terms and conditions of this agreement. You also agree that you will use your device exclusively for our service. We will not provide any passwords, codes, or other information or assistance that would enable you to use your device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You warrant that you possess all required rights, including software or firmware licenses, or both, to use any interface device that we have not provided to you. You may not reverse compile, disassemble, or reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software.
10. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY.
10.1. AS IS Services.
You agree that our services are provided "as is," except to the extent provided below.
10.2. No Warranties on Service.
We make no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service or device for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance. In addition, we do not warrant that the service or device will be without failure, delay, interruption, error, degradation of voice quality, or loss of content, data, or information. Neither QT Talk nor its officers, directors, employees, affiliates or agents, or any other service provider or vendor who furnishes services, devices, or products to the customer for our service will be liable for unauthorized access to our or your transmission facilities or premises equipment or for unauthorized access to, or alteration, theft, or destruction of, customer's data files, programs, procedures, or information through accident, fraudulent means, devices, or any other method, regardless of whether such damage occurs as a result of QT Talk's or its service provider's or vendors' negligence. Statements and descriptions concerning our service or device, if any, by QT Talk or QT Talk's agents or installers are informational and are not given as a warranty of any kind.
10.3. Device Warranties and Limitations (See Section 7)
10.4. No Credit Allowances for Interruption of QT Talk Service.
We will not give you credit for any interruption of QT Talk service, including international calling services.
10.5. Limitation of Liability.
We will not be liable for any delay or failure to provide service, including 911 Dialing, at any time or any interruption or degradation of voice quality that is caused by any of the following:
10.6. Disclaimer of Liability for Damages.
In no event will QT Talk, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services or devices to you in connection with our service be liable for any damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use a device or the service, including inability to access emergency service personnel through the 911 dialing service or to obtain emergency help. These limitations apply to claims founded in breach of contract, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not we were informed of the likelihood of any particular type of damages.
Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
10.7. Disclaimer of 911 Liability.
We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We do not have any control over any local emergency response center. Therefore, we are not responsible for whether they answer calls using our 911 dialing service, how they answer these calls, or how they handle them. We rely on third parties to assist us in routing 911 dialing calls to local emergency response centers and to a national emergency calling center. We are neither liable nor responsible if the data used by a third party to route calls is incorrect or produces an erroneous result. Neither QT Talk nor its officers or employees may be held liable for any claim, damage, or loss, fine, penalty, cost, and expense (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, 911 Dialing, or your device.
10.8. Limit on total liability.
Our total liability under this agreement will not exceed the service charges for the affected time period.
11. CUSTOMER SERVICE.
We offer varying types and levels of customer service depending on a number of factors, including the service you are using and the problems you are experiencing. For more information on our customer service, please review the "Support" section of our web site www.qttalk.com. We assume no obligation to provide support services for any third party products or services, or for problems with our service caused by third party products or services. Unless you have entered into a separate services agreement with us, we may change the customer service options at any time.
12. INDEMNIFICATION AND WAIVER OF
You shall defend, indemnify, and hold harmless QT Talk, its officers, directors, employees, affiliates and agents, and any other service provider who furnishes services to you for our service, from any and all claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, 911 Dialing, or your device.
12.2. Waiver of Claim or Causes of Action.
You waive all claims or causes of action arising from or relating to our 911 dialing service unless the claims or causes of action arise from our gross negligence, recklessness, or willful misconduct.
You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using your service or device. You promise that you and anyone who uses your service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using our service and the device.
13. MISCELLANEOUS LEGAL CONSIDERATIONS.
13.1. Governing Law.
The law of the state of your residence will govern this agreement as well as the relationship between you and us, except to the extent such law is preempted by or inconsistent with applicable federal law. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act will govern the interpretation and enforcement of the arbitration provision in Section 14.
13.2. No Waiver of Rights.
Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. QT Talk reserves all of its rights at law and equity to proceed against anyone who uses its services or device illegally or improperly. All determinations by QT Talk under these Terms of Sale and exercise of its rights are made and done in our sole and absolute discretion.
The provisions of this agreement that by their sense and context are intended to survive the termination or expiration of this agreement shall survive.
13.4. No Third Party Beneficiaries.
If you are not a party to this agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This agreement does not create any other third party beneficiary rights.
13.5. Legal Age.
You promise that you are of legal age to enter into this agreement and that you have read and understand fully its terms and conditions.
13.6. Entire Agreement.
This agreement, including any future modifications to its terms, and the rates for services found on our web site constitute the entire agreement between you and QT Talk. This agreement governs your use of our service, and the use of our services by the members of your household and your guests and employees. This agreement supersedes any prior agreements between you and QT Talk. It also supersedes 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. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
14. DISPUTE RESOLUTION AND BINDING ARBITRATION.
It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
QT Talk and you agree to arbitrate any and all disputes and claims between you and QT Talk. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and QT Talk, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to "QT Talk," "us" and "you" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the service under this agreement or any prior agreements between you and QT Talk.
14.2. Informal Resolution of Disputes.
Our customer care department can resolve most customer concerns quickly and to the customer's satisfaction. If you have a dispute or claim against us, you should first contact the QT Talk customer care department by telephone at 1-866-558-4169 or by email at http://www.qttalk.com/contact.aspx. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
14.3. Formal Notice of Disputes.
A party who intends to seek arbitration must first send to the other party a written Notice of Dispute.
(a) A Notice of Dispute to QT Talk must be sent to QT Talk:
(1) by certified mail addressed to: QT Talk, 5 Hanover, Suite 1412, New York, NY 10005
(2) by email addressed to email@example.com.
(b) A Notice of Dispute to you must be sent to you
(1) by certified mail at the last mailing address that you registered with QT Talk; or
(2) by email addressed to you at the last email address you registered with QT Talk.
(c) The Notice of Dispute must
(1) describe the nature and basis of the dispute or claim; and
(2) set forth the specific relief sought.
(d) If you and QT Talk do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or QT Talk may commence an arbitration proceeding. You may download or copy a form to initiate an arbitration proceeding from the AAA website: www.adr.org/fc_filing_forms. The amount of any settlement offer made by you or QT Talk shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or QT Talk is entitled.
14.4. Arbitrator and Arbitral Rules.
The arbitration shall be administered by the American Arbitration Association ("AAA"). You may contact the AAA by telephone at 1-800-778-7879, by email at Websitemail@adr.org, or by mail at 335 Madison Avenue, Floor 10, New York, New York 10017. The arbitration shall be governed by the AAA's Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules"), as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
14.5. Location and Procedure of Arbitration.
Unless you and QT Talk mutually agree otherwise, all hearings conducted as part of the arbitration shall take place at a location, convenient to you, in the county or parish of your billing address. If your claim is for $10,000 or less, you or QT Talk may request that the arbitration be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim is in excess of $10,000, the right to a hearing will be determined by the AAA Rules.
14.6. Fees and Costs.
For claims under $10,000, QT Talk will reimburse you for your payment of the filing fee, following the completion of the arbitration. The filing fee currently is $125 for claims under $10,000, but is subject to change without notice by the AAA. If you are unable to pay the filing fee, QT Talk will pay it directly upon receiving a written request from you or the AAA. Except as otherwise provided for herein, QT Talk will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator determines that either the substance of your claim or the relief sought in the Demand is frivolous, then the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse QT Talk for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules.
14.7. Waiver of Jury Trial.
You and QT Talk agree that, by entering into this agreement, you and QT Talk are waiving the right to a trial by jury.
14.8. Waiver of Class Actions.
You and QT Talk agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. You and QT Talk agree that you and QT Talk may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You and QT Talk agree that, unless you and QT Talk agree otherwise, the arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding. Despite Â§13.7 or any other provision in this agreement to the contrary, if this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
14.9. Statute of Limitations:
You must contact us within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 9.5 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
14.10. Exceptions to Arbitration Agreement:
You and we agree:
(a) you may take your dispute to small claims court, if your dispute qualifies for hearing by such court;
(b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement;
(c) you or we may take any disputes over the validity of any party's intellectual property rights to a court of competent jurisdiction;
(d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and
(e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or QT Talk, pending the completion of arbitration.
14.11. Modification of Arbitration Provision.
Despite Â§15 or any other provision in this agreement to the contrary, if QT Talk makes any substantive change to this arbitration provision, you may reject any such change and require QT Talk to adhere to the language in this provision.
15. CHANGES TO THIS AGREEMENT.
We may change the terms and conditions of this agreement from time to time. By subscribing to our service, you agree that we may provide to you by use of electronic communications required notices, agreements, and other information concerning QT Talk, including changes to this agreement. We may give you notice of a change by posting the change on the home page of Qttalk.com or on the relevant web page of the applicable service. Such notices will be considered given and effective on the date posted. These changes will become binding on you on the date they are posted and we are not required to give you further notice in order for you to continue using our service. When posted, this agreement supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of your device. It also supersedes any written terms provided to retail customers with retail distribution, including, without limitation, any written terms in the packaging of your device. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of QT Talk services.
You authorize us
(a) to investigate your credit history, including requesting a consumer report, when you sign up for our service and at any time after you sign up and
(b) to share credit information about you with credit reporting agencies. Upon your request we will inform you whether or not we have requested a consumer report, and if a report was requested, the name and address of the consumer reporting agency that furnished the report
17. EXPORT CONTROLS
You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of our service or any direct product to any destination, company, or person restricted or prohibited by U.S. export controls.
18. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE.
18.1. Our website content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions.
Infringement by you may result in civil or criminal prosecution.
18.2. Third parties may make materials available using our service.
These third parties are not within our control. We do not review the content posted on our service to see if it includes illegal or impermissible content, nor are we under any obligation to conduct any review. However, we respect the copyright interests of others. It is our policy not to permit materials we know infringes another party's copyright to remain on our service. If you believe any materials on our service infringe a copyright, you should give us written notice. Click here to see what information must be included in your notice and where your notice should be sent.
Your notice should at a minimum contain the following information:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(d) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. All DMCA notices should be sent to our designated agent as follows: QT Talk Legal Department, 5 Hanover Square, Suite 1401, New York, NY 10004.
Last Updated: December 04, 2008. Copyright 2007 QT Talk, LLC used under license. QT Talk is a registered service mark owned by and used under license from QT Talk, LLC a wholly owned subsidiary of QT Talk, Inc.