These Terms of Service (“Terms of Service” or “TOS”) constitute the agreement between Direct8 Commcloud America Inc. (“Direct8 Commcloud”) and the user of Direct8 Commcloud’s communications services and any related products or services. This agreement governs both our service and any Direct8 Commcloud-approved or Direct8 Commcloud-branded devices used with our service. It applies to all lines on each Direct8 Commcloud account. Direct8 Commcloud is sometimes referred to as “we,” “us,” “our,” or “Direct8 Commcloud” and the user is sometimes referred to as “you,” “your,” “user,” or “customer”.
By subscribing to or using our service, including those services, features or functionality provided by means of mobile applications, you agree to these Terms of Service. All information linked to these Terms of Service is part of it. However, from time to time, Direct8 Commcloud offers special or different terms and conditions for Direct8 Commcloud services sponsored or co-branded by Direct8 Commcloud business partners. By subscribing to Direct8 Commcloud service under these special offers, the terms of service for such special offers shall apply and supersede these Terms of Service. Notwithstanding anything to the contrary set forth herein, if your Direct8 Commcloud account is governed by a different terms of service in connection with a Direct8 Commcloud co-branded service offer, then any additional lines or features you add to your Direct8 Commcloud account will be governed by that co-branded TOS. To the extent the co-branded TOS does not address the additional features to which you subscribe under that plan, the then-current Direct8 Commcloud World® TOS will apply solely with respect to that additional feature(s). If you terminate your service under the co-branded offer and move to a different rate plan for your Direct8 Commcloud service, the co-branded TOS will no longer govern the provision of your Direct8 Commcloud service. The terms of service for the new rate plan will apply to all your Direct8 Commcloud service.
Revisions to these Terms of Service
- EMERGENCY SERVICES – 911 DIALING
- 911 Disclosure During Subscribe
Direct8 Commcloud 911 service is different from traditional wire line 911 and cellular/wireless 911, but it is a safe and reliable means of emergency dialing that may differ depending on where you are located, and the device used, when using your Direct8 Commcloud service.
Direct8 Commcloud customers have access to Enhances 911 (E911), basic 911 or our national emergency call center. When you dial 911 your Direct8 Commcloud phone number and registered address is sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary. With basic 911, when you dial 911, local emergency operators answering the call may not see your Direct8 Commcloud telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your Direct8 Commcloud 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. Once local emergency centers are capable of receiving our customers’ information, we automatically upgrade customers with basic 911 to E911 service.
If you do not have access to either basic 911 or E911 for any reason, your 911 call will be sent to the Direct8 Commcloud national emergency call center, where a trained agent will ask for your name, telephone number, and location, and then transfer you to the local emergency center nearest to your location.
We require you to provide the physical address where you will be using our service for 911 purposes. For E911 and basic 911, this address is used to route 911 calls to your local emergency center. When you initially provide your physical address, it can take up to 120 minutes to verify your address and activate 911 services at this address. You will receive an email letting you know when 911 services are activated.
If you move this device to another location, you must update your address. You may register only one location at time. If you do not update your location, your 911 calls may be sent to an emergency center near your old address. When you update your location, it can take several hours to activate 911 services at the updated address. You will receive an email letting you know when 911 services are activated at the updated address.
If you are a Direct8 Commcloud ProSM customer, you have selected a service that enables you to utilize the same telephone number for two different devices. Please note that the 911 service provided for each device is different. For purposes of 911, you will have a primary line (i.e. a service accessed using a terminal adapter plugged into a standard, home phone), and a secondary line (i.e. a service accessed with a Direct8 Commcloud Companion™). The 911 service provided for the primary line will be as explained above (i.e. ENHANCED 911, BASIC, ETC). 911 calls placed over the secondary line will be sent to the national emergency call center for handling as described above.
Please note 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 Direct8 Commcloud phone service is terminated.
- 911 Dialing from Mobile Applications
Direct8 Commcloud mobile applications are not a replacement for your cellular service and you cannot make emergency (e.g., 911) calls using the software. If you attempt to make a 911 call from the mobile application the mobile application will close and the call will be placed over your cellular carrier’s network. However, this does not prevent you from using your mobile phone for making emergency calls via your cellular provider as normal. If you dial internationally recognized emergency service numbers while using a mobile application, the mobile application will close, the native dialer will be launched, and the call will be placed over your carrier’s cellular network. Neither your phone number nor your location will be reported to an emergency operator when dialing an internationally recognized emergency service number.
- 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.Direct8 Commcloud.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.
- MONEY BACK GUARANTEE
- Services Covered by the MBG and the MBG Time Period
For Order Dates on or after January 16, 2019, a money back guarantee (“MBG”) applies to your first voice line only (not to additional or secondary lines) if you terminate your service within thirty (30) calendar days from your Order Date. The Order 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. If multiple lines are ordered at the same time as part of the initial order or at any time within the MBG period, only the initial voice line will be eligible for the MBG.
- Terms of 30 day MBG
We will refund or credit (i) the activation fee you paid on the first line; (ii) the service charge you paid for the first service term; (iii) any shipping fees and taxes you paid for your initial device.
We do not provide refunds for any devices (or associated taxes) purchased from retail stores. Please refer to the return policy of the retailer where you purchased your device to determine whether, and under what conditions, you may obtain a refund of any paid activation fee, 1stmonth service charge, fees and certain taxes.
Our money back guarantee does not apply to any charges for international usage, payphone calls to Direct8 Commcloud toll free numbers, directory assistance and any features or services not expressly included in your monthly plan fee. In addition, we may not be able to refund all of the taxes that you paid.
Charges for usage, services, and features outside of your plan are separately billed and charged to your payment method shortly after cancellation. If you have a billing dispute following the termination of your account, please contact us at http://www.Direct8 Commcloud.com/contactus.php.
- Right to Revoke
We have the right to discontinue or revoke our thirty (30) day MBG at any time, without prior notice.
- Restrictions Applicable to Certain Promotions, including MBG Promotions
Certain plans may have restrictions or limitations that apply to the refund of calls made during the MBG period from certain US territories or foreign jurisdictions, to the United States, or in the event the Reasonable Use Policy is violated. For these plans, the customer may be responsible for a per-call/per-use charge that will not be refunded in the event of cancellation during the applicable promotional or MBG period.
- Service Distinctions
Our service may be subject to different regulatory treatment than traditional voice telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies. Our service requires high speed broadband or, for certain mobile applications, a WIFI or other data connection (e.g. 3G/4G) which we do not provide. Certain of our other services may be used with devices such as wireless telephones, mobile telephones, smart phones, PDA’s, tablets or pads which we may or may not provide. Events beyond our control may affect our service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service, system maintenance or acts of God. We will act in good faith using commercially reasonable efforts to minimize disruptions to your use of and access to our service.
- Residential and Mobile Use of Service and Device
Direct8 Commcloud’s service is a single (and not extended or multi-) family residential voice service. It is engineered to process and deliver traffic profiles and utilization levels of our typical residential customers’ calling patterns (also referred to as “normal use” by residential plan customers). “Typical” refers to the calling patterns of at least 95% of our customers on a particular calling plan. Normal residential traffic profiles and utilization may arise from business, multiple or extended family, community or fraudulent use. “Unlimited” does not refer to those types and levels of usage. Telephone utilization that is indicative of, or arising from, impermissible business, multiple family, community or fraudulent use, as outlined herein, on a residential class of service line may create network congestion that will manifest itself in increased busy signals for themselves and others.
Direct8 Commcloud’s residential unlimited service plans and features are for single (and not extended or multi-) family residential (or personal, non-commercial) or co-branded use only. Co-branded use is defined as Direct8 Commcloud service that is provided by a third party partner under that third party partner’s marketing brand, with or without reference to Direct8 Commcloud. This means that only the account holder, residential family members (as defined below), and those Extensions ® phone number(s) registered with Direct8 Commcloud by the account holder may use Direct8 Commcloud’s residential unlimited service plans. “Residential family members” refer to those members of your immediate family who reside in your personal residence – e.g., spouse, domestic partner, parents and/or children. If your residential service plan allows you to extend the service or feature(s) to another residential or mobile number, all use under that service plan is aggregated and must conform to single (and not extended or multi-) family residential (or personal, non-commercial) or co-branded use.
Some Direct8 Commcloud plans allow for the use of additional devices (such as personal computers, mobile phones, Extensions® phone number(s) registered with Direct8 Commcloud or other Direct8 Commcloud equipment) outside the residence as part of that service plan. If you subscribe to a service plan which permits use of more than one device with the same voice line, your usage will be aggregated and assessed in accordance with our Reasonable Use Policy.
Direct8 Commcloud’s mobile unlimited service plans and features are for normal, personal non-commercial use and are device specific. Use of Direct8 Commcloud’s unlimited mobile plans must be in accordance with the Reasonable Use Policy and these Terms of Service, and consistent with other typical customers on the same mobile calling plan. Unauthorized or excessive use beyond that normally experienced by typical mobile customers on the same plan may cause busy signals and may result in service termination.
- If you subscribe to any of Direct8 Commcloud’s small business plans, including one of our Small Office Home Office (“SoHo”) plans, we provide service, features and certain equipment to you solely for use as a small business user or domestic business traveler. Some Direct8 Commcloud plans allow for the use of additional devices (such as personal computers, mobile phones or other Direct8 Commcloud equipment) as part of these service plans. If you subscribe to a service plan which permits use of more than one device with the same voice line, your usage will be aggregated and assessed in accordance with our Reasonable Use Policy.
- The following uses are not considered small business uses and are not permitted under small business plans: autodialing; continuous or excessive call-forwarding or conferencing; inbound/outbound centralized or distributed call center activity; telemarketing of any kind (including, but not limited to, charitable or political solicitation or polling); fax or voicemail broadcasting; and fax or voicemail blasting. See Section 10 for more details. Certain business plans may require you to be responsible for supplying, operating, and supporting the standard SIP-based Customer Premise Equipment for use with the service. As the subscriber and operator or administrator of this equipment, you are responsible for maintaining the security of the equipment, including but not limited to the physical and network security elements of your equipment, and any and all charges related thereto.
- Some business plans may not be eligible for certain promotional offers.
- Use of Direct8 Commcloud’s small and home business unlimited service plans and features must be in accordance with the Reasonable Use Policy and these Terms of Service, and consistent with typical customers on the same small or home business calling plan (also called “normal use” by small and home business plan customers). Unauthorized or excessive use beyond that normally experienced by typical small or home business customers may create network congestion that will manifest itself in increased busy signals for themselves and others, and may result in service termination.
- Inconsistent with Normal Use
If you use the service, any feature and/or any device (including, but not limited to, your personal computer(s), mobile phone(s) or Direct8 Commcloud equipment) in a way that is inconsistent with the normal use for your service, feature or plan, you will be required, at Direct8 Commcloud’s sole discretion, to (a) pay the rates for the service, feature or plan that would apply to the way you used the service, feature or device, (b) change to a more appropriate plan or (c) terminate the plan. For example, if you subscribe to one of our residential service plans, and your aggregate usage is inconsistent with normal residential or personal use, you may thereafter be required to pay our applicable, higher rates for service for all periods in which your use of our service or the device was inconsistent with normal residential use. Unlimited voice services are provided primarily for continuous live dialogue between two individuals. Lack of continuous dialogue activity, unusual calling patterns, excessive conferencing or call forwarding, excessive numbers dialed and/or consistent excessive usage (which may also apply to features such as Directory Assistance) will be considered indicators that your use may be inconsistent with normal use by other Direct8 Commcloud customers aggregating their usage under a similar service plan, or that impermissible use as set forth in Section 10 and/or in the Reasonable Use Policy may be occurring and may trigger an account review or further action by us.
A non-exhaustive list of examples of uses of our service that are generally considered to be impermissible and inconsistent with normal residential or co-branded use, include, but are not limited to, use:
- By or for
others who do not live with you;
- By others who are not registered Direct8 Commcloud Extensions® users; or
- Operating a business, even if operating from the residence.
A non-exhaustive list of examples of uses of our service that are generally considered to be impermissible and inconsistent with either single (and not extended or multi-) family residential or small or home business use, or co-branded use, include, but are not limited to, use:
any other enterprise, including not-for-profit or governmental;
- Operating a call center;
- Resale to others;
- Auto-dialing or fax/voice blasts;
- Telemarketing; or
- Without live dialogue, including as a monitor, intercom or for transcription.
Direct8 Commcloud evaluates customer usage in comparison to similarly situated customers, e.g., residential use under residential service plans or small business use under small business service plans or affiliate use under co-branded service offers or plans. For example, over ninety five per cent (95%) of Direct8 Commcloud’s residential unlimited calling plan customers use less than three thousand (3000) minutes per month and do not have any unusual calling patterns. We may conclude that a customer’s aggregate usage is outside of normal use if it exceeds 3000 minutes per month IN COMBINATION with one or more of the following, including, but not limited to, excessive:
- Number of
unique numbers called;
- Call lengths;
- Frequency of call forwarding/transferring;
- Conference calling;
- Excessive calls to conference bridges;
- Short duration calls or chats;
- Calls made during business hours;
- Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or
- Other abnormal calling patterns indicative of an attempt to evade enforcement of these Terms of Service and our Reasonable Use Policy.
Direct8 Commcloud may also determine that abnormal, unreasonable or impermissible usage is occurring, and may take appropriate steps described below even if the number of minutes used is not excessive, when a customer’s calling patterns during more than one month reflect excessive:
- Call lengths;
- Frequency of call forwarding/transferring;
- Conference calling;
- Short duration calls;
- Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
- Other abnormal calling patterns indicative of an attempt to evade enforcement of these Terms of Service and our Reasonable Use Policy, or
- at a multi-residential address for more than one single residence.
Direct8 Commcloud may take appropriate steps to enforce these Terms of Service and our Reasonable Use Policy. We reserve the right to review your account and take further action, including, but not limited to, immediate suspension of your Direct8 Commcloud service if account usage is beyond normal standards, impermissible or detrimental to other customers’ ability to use the service or adversely affects our operations. We may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers. If we determine that you are engaging in abnormal or impermissible usage, we will use commercially reasonable efforts to inform you and provide you with the opportunity to correct the improper usage. If we give you the opportunity to correct your abnormal usage patterns and you fail to immediately conform to normal use, we may exercise our right to transfer your service to a more appropriate plan, charge applicable rates or suspend or terminate your service. You acknowledge that if your service is terminated under this provision, you are subject to all applicable fees and taxes at the time your service is terminated. Direct8 Commcloud’s right to terminate your account under Section 6(E) (with or for no reason) is not limited by this provision.
- No O+ or Operator Assisted Calling; 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 may support specified dialing such as 911 and 411, although certain mobile applications may not provide such dialing services. 411 charges may vary by plan.
- No Directory Listing
The phone numbers you get from us will not be listed by us in any telephone directories. However, any phone numbers you transfer from your local phone company may be or remain listed. We have no control over directory listings.
With Other Services
- 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, TTY, medical monitoring equipment, certain versions of TiVo, AOL, Netflix and other streaming services, cable television services, FiOS, satellite television systems, PBX, Centrex, other private telephone networks, or computer modems. You waive any claim against Direct8 Commcloud for interference with or disruption of these services and equipment, as well as any claim that Direct8 Commcloud is responsible for any disruption to your business, if applicable.
- Certain Broadband, Cable Modem, and Other Services
You acknowledge that our service may not be compatible with certain cable broadband service (such as AOL) 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.
You will be asked to create a password in order to gain access to your account information on-line or when contacting a Direct8 Commcloud agent by phone. Certain applications may permit you to extend use of such application to others using your password information. You agree to keep all passwords and account information confidential and are solely responsible for any liability or damages resulting from your failure to maintain that confidentiality and for all activities that occur under your password, including without limitation usage by others. You must immediately notify us if you suspect any breach of security such as loss, or unauthorized disclosure or use of your password and account.
- Changes to Service Plans
Your service plan includes terms and conditions such as monthly service allowances, limitations and features, and the associated charges, all as described at www.Direct8 Commcloud.com or in other communications and materials made available to you in connection with your order or changes to your service. You acknowledge that your service plan is also subject to these Terms of Service. Our service is subject to our business policies, practices and procedures, which we can change at any time without notice. Unless otherwise prohibited by applicable law, we can also change the terms and conditions of your service plan (such as features and prices) at any time, with or without notice. If we do give you notice, it may be provided on your account web page or monthly bill, in a newsletter, in a mailing, by e-mail, by telephone or other communication permitted under applicable law. If your calling plan has been changed this does not affect the terms of your existing service agreement.
- Virtual Numbers
International virtual numbers are not retained and may not be transferred.
- LENGTH OF SERVICE
- Service Term
We provide our service to you indefinitely. Your service term refers to the period of time for which we will bill you periodically in advance (for example, one month or one year). The service term is the term that you selected from the options available when you signed up for our service. Your first service term begins on the Order Date. It is not the day you receive the equipment you ordered or the first time you use the service. Your service will continue until canceled by you or by us as provided for herein. Please note that your obligations begin on your Order Date and are indefinite.
- Automatic Renewal
Your service term automatically renews for the same term you selected unless you call us at 732-944-0000 to cancel your service before the end of your then current service term. The renewal begins on the day after the last day of your service term.
- Our Right to Disconnect Software; Upgrade Software
We reserve 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 under these circumstances
- Unlawful or inappropriate use.
If we determine in our discretion that you have used our service or the device for an unlawful or inappropriate purpose or if we determine that the use or content does not conform to the requirements in this agreement or that it interferes with our ability to provide service to you or others, then we may immediately disconnect your service at any time without notice. In addition, you shall not use the Service or the Box to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalogue, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; use the Service to violate any law, rule or regulation; violate any third party’s intellectual property or personal rights; or exceed your permitted access to the Service. Subject to applicable law, we may, but are under no obligation to, monitor usage of the Service for violations of this Agreement. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the Service, or Direct8 Commcloud, its parent, affiliates, directors, officers, agents and employees from harm.
If any charge to your payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method, or in case of any other non-payment of account charges.
- Violation of laws.
If we determine that you have used our service or your device in violation of laws of jurisdictions outside of Direct8 Commcloud service areas.
- Inconsistent Usage.
If we determine that your use of the service, features, or the device is, or at any time was inconsistent with normal inbound or outbound usage patterns for the type of service or plan that you have purchased, or that you have at any time used the service, feature or the device for any of these or similar activities.
If we determine that you have tampered with your device.
Our action or inaction under this section does not constitute any review or approval of your action or use or content.
- Fees Upon
- Disconnection by You.
If you attempt to disconnect service for one or more of your lines before the end of your current service term, you will be responsible for all the charges for your current term that are applicable to the disconnected line(s), including unbilled charges, plus an Early Termination Fee per line, if applicable, as provided in Section 8(G) below. Cancellation is effective on the date you or we cancel or which you designate as the cancellation date (future disconnection date). Annual prepayment plan charges are not subject to refund. If your service is cancelled before the end of your billing cycle for any reason by you or us, there are no pro-rated refunds. Charges for any overages, payphone calls to Direct8 Commcloud toll free numbers, and out-of-plan international calls or any other features and services outside your rate plan are separately billed and charged to your selected payment method after cancellation. In addition, if you obtain a product or service from us (e.g., a phone Adapter) for which a rebate or benefit was given to you that was conditioned on maintaining your Direct8 Commcloud service for a specified length of time, and you disconnect service before the end of that period, you agree to pay us the applicable recovery fee and/or Early Termination Fee. See Section 8(H) below. On multiple line accounts, any Early Termination Fee arising from a cancellation of a line that is subject to an ETF must either be paid upon cancellation or the remaining ETF balance may be transferred to one of the other lines on that account. Such ETF balance continues on the account until either the ETF obligation has expired or been satisfied.
- Disconnection by Direct8 Commcloud with 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, if applicable, any recovery and Early Termination Fees.
- Disconnection by Direct8 Commcloud with a Reason.
If we disconnect your service for any of the reasons listed in Section 6(D) above, you will be responsible for all charges through the end of your current service term, including unbilled charges, plus any applicable disconnection, Early Termination Fees and any recovery fees.
- All Charges Owed at the Time of Disconnection will be Immediately Payable.
At the time of disconnection, we will immediately charge the credit or debit card you have provided to us for payment, or initiate an electronic funds transfer if that is your payment method, for all amounts due at that time. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
Disconnection on Number Transfer or “Port”
- Single Line Accounts.
You may be able to take, or “port,” your current number to another service provider. If you ask your new service provider to port a number from us, we will terminate our service for that number promptly after we receive notification from our competitive local exchange carrier that the porting of your number to your new service provider has been completed successfully. We will terminate our service in this fashion even if you have not independently called us to request disconnection. Once your service is terminated in this manner, you will remain responsible for all charges and fees through the end of the current billing cycle, including any unbilled charges, as well as for any applicable Early Termination Fees or recovery fees that may be applicable as provided in Sections 8(G) and 8(H) below. If a port is unsuccessful for any reason, then unless you independently call us to request disconnection or unless we determine to disconnect your line as stated in these Terms of Service, your service and your agreement with us will not terminate, you will remain a Direct8 Commcloud customer, and you will continue to be responsible for all charges and fees associated with your Direct8 Commcloud service.
- Multi Line Accounts.
If you request your new service provider to port a number from us and you have multiple numbers assigned to your account and/or additional devices you are required to inform us by calling as specified in Section 6(H), of your intent to terminate all the services on your account, prior to the successful completion of the requested port or we will select the most appropriate billing plan for any remaining numbers and/or devices on your Direct8 Commcloud account, and you will continue to be responsible for all the charges and fees associated with the remaining services on your Direct8 Commcloud account. Once the port of the requested number is completed, you will remain responsible for all charges and fees through the end of that billing cycle, including any applicable Early Termination Fees and recovery fees that may apply to the ported number.
- Termination of Service
In order to terminate your service, you must contact our Customer Care Department, via telephone, at the following number: 732-944-0000. Our Customer Care Department is available to assist you with account terminations on Monday-Friday 9:00 a.m. to 12:00 a.m. and Saturday-Sunday 9:00 a.m. to 8:00 p.m. Eastern Standard Time. If you decide to cancel your service with us, you must contact our Customer Care Department to do so – simply disconnecting or returning your device to us or one of our partners will not cancel your service and you will remain responsible for all costs and fees associated with your account, including, but not limited to, monthly recurring fees for your service plan and you may also be disqualified for an applicable money back guarantee. See Section 4.
Direct8 Commcloud reserves the right, at its sole discretion, not to honor the Money Back Guarantee or any other promotion for any customer who, directly or indirectly, demonstrates a pattern of activating and then cancelling service within thirty (30) days after the Order Date in connection with a Money Back Guarantee offer, or similar offer, unless such pattern is based on a Direct8 Commcloud acknowledged technical cause, a force majeure event or other basis Direct8 Commcloud considers reasonable.
Purchased from a Retail Provider
- Return of Device.
- Devices Purchased from a Retail Provider
Except as provided in the limited warranty found in Section 7(A)(2) 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 any applicable money back guarantee offered by us. We will not accept any device returned to us from a retail customer.
- Limited Warranty from Direct8 Commcloud for Retail Customers Only.
We will provide a limited warranty on the device only for manufacturing defects for a period of one (1) year from your Order 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 long 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:
receive your device, in its original condition, reasonable wear and tear
excluded, together with the original packaging, all parts, accessories, and
- Before returning your device to us, and within one (1) year from your Order Date, you need to obtain a valid return authorization number from our United States Customer Care department which you can reach at 732-944-0000, or if you are calling from outside the United States, see our website for the Customer Care phone number servicing your location. [http://www.Direct8 Commcloud.com/contactus.php]. You pay all costs of shipping your device back to us.
Received from Direct8 Commcloud
- 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 received 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 one (1) year from your Order Date. Some States do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
- 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 as directed by our United States Customer Care Department at 732-944-0000, or if you are calling outside the United States, see our website for the Customer Care phone number servicing your location. [ http://www.Direct8 Commcloud.com/contactus.php]. 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.
- Service Cancellation.
If you cancel your service within the Money Back Guarantee period, you may obtain a credit or a refund for the amount paid for the device, if any.
- Receipt of Damages 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 United States Customer Care Department at 732-944-0000, or if outside the United States, see our website for the Customer Care phone number servicing your location.
- 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.
- Device Upgrades
From time to time devices may need to be updated. Such upgrades occur automatically and last approximately 1-5 minutes. During this time you may not be able to obtain dial tone or make and receive calls, including the ability to make 911 calls.
- Tampering with the Device
You may not change the electronic serial number, equipment identifier, encryption keys, other authentication, technical data of your device, or perform a factory reset of your device without first getting our written consent.
- Prohibited Devices
You are prohibited from using Direct8 Commcloud services with any devices other than Direct8 Commcloud-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, 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, AVAILABILITY, 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”, AVAILABLE FOR THE SENDING OR RECEIPT OF CALLS OR WILL MEET YOUR REQUIREMENTS. THIS SECTION DOES NOT LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY IN THE DOCUMENTATION PROVIDED WITH YOUR DEVICE.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
- FEES, TAXES AND OTHER CHARGES
- 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 $75.
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 Direct8 Commcloud 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 Order, 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 selected 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 by sending the certificate to Direct8 Commcloud America, Inc., Attn: Tax Manager, 23 Main Street, Holmdel, N.J. 07733. Tax exemption will only apply from the date we receive your certificate.
- “Toll Free” Charges
If you use any toll free feature that we offer, 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.
- Charges for Directory Calls (e.g., 411)
We reserve the right to charge you for each call you make to Direct8 Commcloud directory assistance except, and only to the extent that, such calls are expressly included in another fee applicable to our service.
- Activation and Shipping Fees
Unless such fee is changed or waived by us as part of an offer, we will charge you a one-time activation fee of up to $29.99 per line for residential and business accounts as well as any other activation fee that may apply to the particular features or service that you select.
Unless such fee is changed or waived by us as part of an offer, we will charge you our then current shipping fees per device shipped.
- Early Termination Fee
For Order Dates on or after February 16, 2012, you may be charged an Early Termination Fee per voice line, as applicable per the plan you select, if your service is disconnected prior to the end of your commitment period. Some plans will not require a term commitment or an Early Termination Fee. Section 6(D) sets forth more detailed information and the proration schedule for Early Termination Fees.
- Rebate and Other Recovery Fees
If you purchase a product or service for which a rebate or benefit is provided that is dependent upon your maintaining Direct8 Commcloud service for a particular length of time, and if you disconnect service before the end of that period, you agree to pay us the applicable recovery fee. A recovery fee is equal to the difference between the price you paid to us and the advertised regular price of the product or service at the time you received it. Any recovery fees are cumulative and are in addition to any other amounts you may owe us, including any Early Termination Fees. For example, if an offer or promotion provides a rebate for a phone adapter and discloses that a rebate recovery fee is applied if the service is disconnected prior to a minimum required period, you would be charged the applicable rebate recovery fee.
- 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.
- No Credit for Non-Usage or Misdialing
Neither non-usage of the service nor misdialing while using the service entitle you to a credit for, or refund of, any portion of a payment made to us.
- BILLING, PAYMENT AND NOTICES
We will charge your method of payment in advance for each monthly service plan fee and associated taxes. Note: some financial institutions may not accept charges under one dollar ($1.00). If your financial institution does not accept charges under one dollar, we will round up and charge your account one dollar ($1.00). We may, in our discretion, refund or credit the difference between the dollar ($1.00) and the amount you actually owed. We will charge you in arrears for any usage and calls not covered by your plan, and immediately on disconnection for any accrued and unbilled amounts and recovery fees or Early Termination Fees (including taxes), if applicable, that are due.
If you subscribe to a prepaid annual plan, we will bill you in advance for the service plan fee due for the entire year, plus any associated taxes, fees and surcharges. We will charge you in arrears on a monthly basis for usage and calls not covered by your plan, and immediately on disconnection for any unbilled amounts and, if applicable, any recovery fees or Early Termination Fees that are due. We may initiate mid-cycle billing of additional amounts due that exceed $75.00.
When you provide a check as payment, you authorize us either to use information from your check to make a one-time electronic transfer from your account as soon as the same day you make your payment, or to process your check as a check transaction in which case you may not receive your check back from your financial institution. Late payments will be subject to late payment fees and returned electronic check payments will be subject to returned check fees, each of which are further detailed as part of our fees and charges set forth in more detail at www.Direct8 Commcloud.com. 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. This remains your responsibility despite Direct8 Commcloud’s participation in any account updater program provided by any third party account updater.
When you subscribe to our service, you authorize us to collect from your payment method, including, if applicable, Early Termination Fees, late fees, check return fees, recovery fees and any other outstanding charges. This authorization will remain valid until 30 calendar days after you terminate our authority to charge your payment method.
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 agency fees, reasonable attorneys’ fees, and arbitration or court costs.
You agree to promptly update your account information whenever your personal or billing information changes (including, for example, your name, address, e-mail address, telephone number, credit/debit card number and expiration date or other payment method information). You authorize Direct8 Commcloud to send you notices and information regarding your service, including via e-mail, over the Internet. If notices are sent by us to the last email address provided by you, you agree that we have provided sufficient email notice and you waive any rights to assert failure of notice.
- Billing Disputes
If you want to dispute any Direct8 Commcloud charges on your statement, you must notify Direct8 Commcloud within seven (7) calendar days after you receive your statement from your bank or credit card issuer. Financial regulations require you to notify your financial institution within sixty (60) days after you receive your statement and report any alleged errors to them within this timeframe. Please contact 732-944-0000.
if you want to dispute any Direct8 Commcloud charges on your statement.
- PROHIBITED USES; UNLAWFUL USES AND INAPPROPRIATE CONDUCT
- 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, fraudulent, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, fraudulent, improper or inappropriate uses of our service and/or devices.
- Fraudulent; and/or
- Invasive of another’s privacy, or any similar behavior.
In addition, you shall not use our service or your device for:
- Continuous or excessive call forwarding or conferencing;
- Inbound/outbound centralized or distributed call center activity;
- Telemarketing (including charitable or political solicitation or polling);
- Fax or voicemail blasting;
- For continuous or excessive chat line access, or
- Use of an open telephone line as a monitor, intercom or transcription service.
You shall not use our service or our device to:
- 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;
- 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 these Terms of Service. 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 Direct8 Commcloud, its parent, affiliates, directors, officers, agents, and employees from harm
- 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, you hereby agree that 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:
response to law enforcement or other governmental agency requests;
- As required by law, regulation, rule, subpoena, search warrant, or court order;
- As necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both;
- To protect Direct8 Commcloud’s rights and property; or
- In emergency situations where disclosure of such information is necessary to protect Direct8 Commcloud customers or third parties from imminent harm.
Use of Service and Device by Customers Outside the United States
We encourage you to use our service to call foreign countries from the United States and to use our service as you travel. Technical and customer care support is offered only 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 Direct8 Commcloud 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. If you ship a device outside the United States for use in another country, you are solely responsible for determining and adhering to compliance with all applicable customs, import/export, regulatory, tax (including VAT) and other laws and costs\expenses and penalties regarding the transport, distribution and use of such device and the service.
- No Transfer of Service
You are the sole account holder for the service for all purposes and are solely responsible for all charges incurred on the account, regardless of changes to the account, including billing information. You are also responsible for all usage and charges on all devices and features including Extensions ® phone(s) registered with Direct8 Commcloud, as well as charges for aggregated domestic and international usage made by you and others you have authorized to use your service. You may not resell or transfer your service or account or provide a telephone service to anyone else by using your Direct8 Commcloud service or features of your Direct8 Commcloud service without first getting our written consent. In no event may your account be assigned to a non-U.S. resident.
IF YOU ACQUIRE A DEVICE FROM SOMEONE OTHER THAN DIRECT8 COMMCLOUD OR A DIRECT8 COMMCLOUD AUTHORIZED RESELLER, OR THAT PREVIOUSLY WAS ASSIGNED TO ANOTHER’S ACCOUNT, DIRECT8 COMMCLOUD DISCLAIMS ALL WARRANTIES, DAMAGES AND LIABILITIES YOU MAY INCUR BY VIRTUE OF YOUR USE OF SUCH DEVICE, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Attempted assignments of service and accounts through changes in account and billing information does not relieve you of liability and responsibility for use of the service and features, or for charges on the account unless we have not consented to the assignment in writing or unless we actively facilitate the assignment as evidenced in our Customer Care records. You may elect to authorize others to access your account by calling us at 732-944-0000.
- No Alterations or Tampering
If you copy or alter or have someone else copy or alter the firmware or software of the device or any mobile application in any way that facilitates a compromise of our service, you are responsible for any charges that result and damages incurred by Direct8 Commcloud as a result. You may not attempt to hack or otherwise alter or disrupt our service or make any use of our service that is inconsistent with its intended purpose.
- Theft of Service
You may not use, obtain or facilitate use of our service, directly or indirectly through others, in any manner that avoids Direct8 Commcloud policies and procedures, including an illegal or improper manner You will notify us immediately at 732-944-0000 or http://www.Direct8 Commcloud.com/contactus.php 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 as permitted under these Terms of Service. Until you notify us, you will be liable for all use of our service using a device stolen from you and any stolen, fraudulent, or unauthorized use of our service whether or not it involves a stolen device.
- Unauthorized Usage of Device; Firmware or Software
Unless your plan specifically provides you with a license to use our firmware or software, 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, or accessible via mobile application 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 these Terms of Service. 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 undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software. You shall not use the mobile application software to develop any software or other technology having the same primary function, including but not limited to using the software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the software.
- Vanity Number Porting
You may not obtain vanity numbers from Direct8 Commcloud and then attempt to sell, resell, or actually sell or resell such vanity numbers.
- LIMITATION ON WARRANTIES, REMEDIES AND LIABILTY
- AS IS Services
You agree that our services are provided “as is,” except to the extent provided below.
- No Warranties on Service or Software
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, software or device will be without failure, delay, interruption, error, omission, degradation of voice quality, or loss of content, data, or information. Neither Direct8 Commcloud 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 or 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 Direct8 Commcloud’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning our service or device, if any, by Direct8 Commcloud or Direct8 Commcloud’s agents or installers are informational and are not given as a warranty of any kind.
With regard to mobile applications downloaded from and purchased through a third party provider (e.g., the iTunes® store or Android Market), in the event of any failure of the mobile application to conform to any applicable warranty, you should notify the third party provider, and the third party provider may refund the purchase price for the mobile application to you; and that, to the maximum extent permitted by applicable law, the third party provider will have no other warranty obligation whatsoever with respect to the mobile application, nor any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
- Disclaimer of Liability for Damages
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 Direct8 Commcloud, 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 get or receive dial tone, access emergency service personnel through the 911 dialing service, or delays in the delivery of emergency services accessed through the 911 dialing service, or to obtain emergency help. Direct8 Commcloud further disclaims any and all liability arising out of any resale, reuse, or refurbishment of the device without Direct8 Commcloud’s prior authorization. These limitations apply to claims founded in breach of agreement, 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 however, with respect to 911 dialing and other aspects of Direct8 Commcloud’s service, there may be federal or state laws that exclude such damages and provide other protections to Direct8 Commcloud which Direct8 Commcloud does not waive or limit in any manner whatsoever.
- 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 or results in the delay of the delivery of emergency services. Neither Direct8 Commcloud 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.
- Limit on Total Liability
Our total liability under this agreement will not exceed the service charges for the affected time period. Direct8 Commcloud will not be responsible for third party fees or charges, including but not limited to, banking fees, overdraft fees, wireless or cellular fees, or other wireline, broadband or internet service charges, technician charges, or other similar charges.
- INDEMNIFICATION AND WAIVER OF CLAIMS
You shall defend, indemnify, and hold harmless Direct8 Commcloud, 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(s), or use of our service by you or others using your account (whether or not such usage is expressly authorized by you).
- 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 transmitted to any person, whether or not you authorize it, using your service or device(s). 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.
- Account Information
You are liable for all damages and liability that may arise from your failure to provide true, accurate, current and complete information and to maintain and promptly update such information. If you provide any information that is, or we have reasonable grounds to suspect is, untrue, inaccurate, misleading, not current or incomplete, we may suspend or terminate or refuse any and all current or future use of the service, or any portion thereof.
- MISCELLANEOUS LEGAL CONSIDERATIONS
- Governing Law
These Terms of Service are applicable for VoIP-based service initiated in the United States of America and mobile services worldwide. For US based customers, 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. For users of Direct8 Commcloud applications outside the United States, the laws of the State of New Jersey will govern your use of our Service under this agreement as well as the relationship between you and us, except to the extent such law is preempted or inconsistent with applicable local law. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA”), and not state arbitration law, shall govern the interpretation and enforcement of the arbitration provision in Section 14.
- 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. Direct8 Commcloud 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 Direct8 Commcloud under these Terms of Service 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.
- 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 third party beneficiary rights provided, however, that with regard to provisions related to mobile applications made available for download through a third party marketplace such as the iTunes store or the Android Market, you acknowledge and agree that such third parties, and its’ or their subsidiaries, are third party beneficiaries of this agreement, and that, upon your acceptance of the terms and conditions of this agreement, such third parties will have the right (and will be deemed to have accepted the right) to enforce specific terms of this agreement against you as a third party beneficiary thereof.
- 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.
- 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 Direct8 Commcloud. This agreement governs your use of our service, and the use of our services by the members of your household, and, subject to your use of one of our business plans, your employees. This agreement supersedes any prior agreements between you and Direct8 Commcloud. 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.
- DISPUTE RESOLUTION AND BINDING ARBITRATION
PLEASE READ THIS CAREFULLY, IT AFFECTS YOUR RIGHTS.
It is important that you read this entire section carefully. This section provides for mandatory resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Any arbitration under this agreement will take place on an individual basis; class arbitrations and class action lawsuits are not permitted.
Direct8 Commcloud and you agree to arbitrate any and all disputes and claims between you and Direct8 Commcloud. 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:
and claims arising out of or relating to any aspect of the relationship between
you and Direct8 Commcloud, whether based in agreement, 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 “Direct8 Commcloud,” “us” and “you” include our respective agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the service under these Terms of Service or any prior agreements between you and Direct8 Commcloud.
- 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 Direct8 Commcloud Customer Care Department by telephone at 732-944-0000 or by email at http://www.Direct8 Commcloud.com/contactus.php. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved through mandatory arbitration as set forth below.
- Formal Notice of Disputes
A party who intends to seek arbitration must first send to the other party a written Notice of Dispute. A Notice of Dispute must be sent to Direct8 Commcloud by certified mail addressed to: Direct8 Commcloud, Attn: Chief Legal Officer, 23 Main Street, Holmdel, NJ 07733 with a copy by email to arbitration@Direct8 Commcloud.com. A Notice of Dispute must be sent to you by certified mail or overnight express delivery with verification at the last mailing address that you registered with Direct8 Commcloud and a copy by email to you at the last email address you registered with Direct8 Commcloud. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and Direct8 Commcloud do not reach an agreement to resolve the dispute or claim within thirty (30) calendar days after the Notice of Dispute is received, you or Direct8 Commcloud may commence an arbitration proceeding by downloading or copying a form from the AAA website: http://www.adr.org. The amount of any settlement offer made by you or Direct8 Commcloud shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Direct8 Commcloud is entitled.
- 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 1633 Broadway, 10th Floor, New York, New York 10019. 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.
- Location and Procedure of Arbitration
Unless you and Direct8 Commcloud 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 Direct8 Commcloud 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.
- Fees and Costs
Direct8 Commcloud will advance all arbitration filing fees and arbitrator’s costs and expenses upon receipt of your reasonable proof that you cannot afford to pay such fees and costs, provided such proof and your written request that Direct8 Commcloud pay such fees and costs is given prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration, including, but not limited to, attorneys or expert witness fees. If the arbitration proceeding is decided in Direct8 Commcloud’s favor, you shall reimburse Direct8 Commcloud for the fees and costs advanced to you. If the arbitration proceeding is decided in your favor, you will not be required to reimburse Direct8 Commcloud for any of the fees and costs advanced by Direct8 Commcloud. If a party elects to appeal an award, the prevailing party in the appeal shall be entitled to recover all reasonable attorneys’ fees incurred in that appeal. Notwithstanding anything to the contrary in this arbitration provision, Direct8 Commcloud shall pay all fees and costs which it is require by law to pay.
- Waiver of Jury Trial
You and Direct8 Commcloud agree that, by entering into this agreement, you and Direct8 Commcloud are waiving the right to a trial by jury.
- Waiver of Class Actions
You and Direct8 Commcloud 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 DIRECT8 COMMCLOUD AGREE THAT YOU AND DIRECT8 COMMCLOUD 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 Direct8 Commcloud agree that, unless you and Direct8 Commcloud 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.
- Statute of Limitations
State laws may limit the time period after which you may assert a claim; in some cases you may be required to assert a claim within one (1) year after the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to Section 9(E) of the agreement). Your failure to timely assert your claim may result in a waiver of your legal rights.
- Exceptions to Arbitration Agreement
You and we agree:
- you may
take your dispute to small claims court, if your dispute qualifies for hearing
by such court;
- 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;
- you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction;
- 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
- 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 Direct8 Commcloud, pending the completion of arbitration.
- Modification of Arbitration Provision
Despite §15 or any other provision in this agreement to the contrary, if Direct8 Commcloud makes any substantive change to this arbitration provision, you may reject any such change by sending us written notice within thirty (30) days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
- 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 Direct8 Commcloud, including changes to this agreement. We may give you notice of a change by posting the change on the home page of Direct8 Commcloud.com, on your account web page or monthly bill, in a newsletter, by e-mail, on the relevant web page of the applicable service, or by other permitted communication. 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. By continuing to use the service after revisions are in effect, you accept and agree to all revisions. If you do not agree to the changes, you must terminate your service immediately. When posted, this agreement supersedes all previously agreed to oral written or 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 Direct8 Commcloud services. If you continue to use our service, we will consider this your acceptance of any changes.
You authorize us:
- to investigate and/or review your credit history, including
requesting a consumer report, both when you sign up for our service and at any
time after you sign up, for any purpose, including, but not limited to, your
initial qualification for an account, your continued compliance with the terms
of your account and general customer base evaluation purposes not specifically
associated with your account; and
- 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.
In addition, you acknowledge Direct8 Commcloud may monitor calls for quality assurance, training and testing purposes.
- 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.
- COPYRIGHT AND TRADEMARK; DIGITAL MILLENIUM COPYRIGHT ACT (DMCA) NOTICE
Our website content, our materials, services, logos, software, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions.
You are not allowed to remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the website content, our materials, or the mobile application software. Infringement by you may result in civil or criminal prosecution.
- Third parties may make materials available using our service
Third parties may not be 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.
- Contents of Notice
Your notice should at a minimum contain the following information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- 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;
- 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;
- 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;
- 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
- 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: Direct8 Commcloud Legal Department, Attn: DMCA Notices, PO Box 9849 Brea,Ca,92822