Terms and conditions of use

Terms and Conditions VIBEVOIP.COM WHEN YOU PROCESS A TRANSACTION OR ORDER VIBE SERVICE YOU MUST AGREE TO VIBE’S TERMS OF SERVICE AND THE CUSTOMER AGREEMENT BELOW. CUSTOMER AGREEMENT: Thank you for choosing VibeVOIP. In these Terms of Service there are important information about your Service, including our ability to make changes to your Service or this agreement’s terms, our liability if things don’t work as planned and how any disputes between us must be resolved by arbitration. If you elect to use a Vibe application on a third party device, you agree that use of that application acts as an acceptance of the third party terms and conditions associated with that third party device. If you’re signing up for Service for a minimum agreement term, these Terms of Service contain information about that agreement term and what happens if you cancel some or all of your Service early or don’t pay on time, including the possibility of an Early Termination Fee you may owe Vibe. By executing a Service Agreement with Vibe, you agree to the current Vibe Terms of Service, which you acknowledge that you have had the opportunity to review. You understand that you may be subject to an Early Termination Fee based upon the plan you selected, and you are agreeing to the limitations of liability for service, settlement of disputes by arbitration instead of jury trials and other important terms in the Terms of Service. You also understand and acknowledge that if you do not agree with these Terms of Service, you should immediately discontinue your attempt to order Vibe service. Accepted: _____________________________ Customer.

Terms of Service ARTICLE I: 1.1 Introduction. These Terms of Service (“Terms of Service” or “TOS”) constitute the agreement between VibeVOIP.com (“Vibe”) and the Customer of Vibe’s communications services and any related products or services who is identified on the Customer Agreement. This agreement governs both Vibe’s service and any Vibe-approved or Vibe-branded devices used with Vibe’s service. It applies to all lines on each Vibe account. Throughout this Agreement, Vibe will sometimes be referred to as “we”, “us”, “our”, or “Vibe”, and the Customer may sometimes be referred to as “you”, “your”, “user”, or “customer.” By subscribing to or using Vibe’s services, including those services, features or functionality provided by means of mobile applications, if any, you agree to these Terms of Service. All policies and other information which references these Terms of Service shall be incorporated into and constitute a part of these Terms of Service. The term of this Agreement will be for the term specified in the plan you select when you initiate service with us (the “Term”). The Term begins on your Order Date. If you or we change your plan, your Term and monthly rate may change, depending on the new plan, and additional terms and conditions associated with the new plan may apply. Your acceptance of service from us constitutes your agreement with any other policies related to your service, and your acceptance also constitutes you acknowledgement of receipt of copies of such policies. 1.2 Revisions to Terms of Service. You understand and acknowledge that we may revise these Terms of Service and other policies governing your service from time to time. We will provide you with notice of any such revisions by posting such revisions to our website, or sending an email to the email address that you provided to us. By subscribing to Vibe, you agree to visit our website periodically and to check your email box to review any such revisions. You also agree to notify us immediately of any changes to your email address. By continuing to use Vibe services after revisions are effective, you hereby acknowledge that this constitutes acceptance to any such revisions. ARTICLE II 2.1 Emergency Services – 911 Dialing. Vibe’s 911 Policy is contained in the separate “VibeVOIP.com 911/E911 Terms and Conditions”, and incorporated into these Terms of Service by this reference. ARTICLE III 3.1 Customer Service Generally. Vibe offers various 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 our web site at www.vibevoip.com, or contact Vibe directly. Vibe assumes no obligation to provide support services for any third party products or services, or for problems caused by third party products or services. You hereby acknowledge that we may change the customer service options at any time, unless you have entered into a separate services agreement with us. 3.2 Early Cancellation Refund. You shall be eligible to receive a money back guarantee under conditions as explained in this Article III. A money back guarantee (“MBG”) applies to your first line only if you terminate your service within thirty (30) calendar days from your Order Date. It does not apply to any additional or secondary lines. 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. Upon cancellation of your service during the MBG period, you will receive a refund of any paid activation fee, 1st month service charge, shipping fees and certain taxes. 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 from the retailer. Our MBG does not apply to any charges for international usage, payphone calls to any toll free numbers, directory assistance and any features or services not expressly included in your periodic plan fee. In addition, we may not be able to refund all of the taxes that you paid. Any charges for usage, services, and features outside of your plan will be 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.vibevoip.com. 3.3 Right to Revoke. Vibe at all times retains the unilateral right to discontinue or revoke the MBG described in this Article III at any time, without prior notice. ARTICLE IV 4.1 Service Distinctions. Vibe’s service may be subject to different regulatory treatment than a traditional voice telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies. Vibe’s 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, smartphones, 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. 4.2 Residential Use of Service and Device. Vibe’s residential and mobile unlimited service plans and features are only for normal residential or personal, non-commercial use. This means that only the account holder, residential family members, and phone number(s) registered with Vibe by the account holder may use Vibe’s residential and mobile 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 normal residential or personal, non-commercial use, as defined by Vibe. 4.3 Small Business Plans. If you subscribe to any of Vibe’s small business plans, we provide service, features and certain equipment to you solely for use as a small business user or domestic business traveler. Some Vibe plans allow for the use of additional devices (such as personal computers, mobile phones or other Vibe 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 Vibe’s policies as they may be formulated from time to time. 4.4 Exclusions To Small Business Plans. The following uses are not considered small business uses and are excluded under small business plans: • autodialing • continuous or extensive 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 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. 4.5 Inconsistent with Normal Use. If you use any Vibe service, any feature, or any device, including, but not limited to, any personal computer, any mobile phone, or Vibe equipment, in a way that is inconsistent with the normal use for your service, feature or plan, you will be required, at Vibe’s sole discretion, to do the following: (a) pay the rates for the service, feature or plan that would apply to the way you used the service, feature or device; or (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 rates for service for all periods in which your use of our service or the device was inconsistent with normal residential use. It is understood and acknowledged that such rates may be higher than your initial service rate. 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, 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 the normal use by other Vibe customers under a similar service plan, or may indicate other impermissible use as determined by Vibe, in its sole and absolute discretion. Such determination by Vibe may also trigger an account review or further action by Vibe. 4.6 Examples of Inconsistent Use. A non-exhaustive list of examples of inconsistent uses of our service for normal residential use, include, but are not limited to: • use by or for others who do not live with you • use by others who are not registered Vibe users • operating a business, even if operating from the residence • use at a multi-residential address for more than one single residence A non-exhaustive list of examples of inconsistent uses of our service for normal residential or commercial use, include, but are not limited to: • operating any other enterprise, including not-for-profit or governmental • operating a call center • resale to others • auto-dialing or fax/voice blasts • telemarketing • without live dialogue, including as a monitor, intercom or for transcription Vibe 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. Vibe may take appropriate steps to enforce these Terms of Service and any other policies concerning usage. Vibe reserves the right to review your account and take further action if account usage is beyond normal standards, impermissible or detrimental to other customers’ ability to use the service or adversely affects our operations, as determined in Vibe’s sole and absolute discretion. 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 you fail to correct your activity to 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 altogether. 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. Vibe’s right to terminate your account under these Terms is not limited by the examples provided in this Section 4.6. 4.7 No 0+ 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. 4.8 No Directory Listing. The phone numbers you receive 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. 4.9 Incompatibility With Other Services. 1. 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 Vibe for interference with or disruption of these services and equipment, as well as any claim that Vibe is responsible for any disruption to your business, if applicable. 1. 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. 4.10 Passwords. You will be asked to create a password in order to gain access to your account information on-line or when contacting a Vibe 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. 4.11 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.vibevoip.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. 4.12 Virtual Numbers. International virtual numbers are not retained and may not be transferred. ARTICLE V 5.1 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 in this Agreement. Please note that your obligations begin on your Order Date and are indefinite. 5.2 Automatic Renewal. Your service term automatically renews for the same term you selected unless you contact Vibe 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. 5.3 Early Termination Fees. If any promotional or plan benefit is provided to you at no charge or at a specified discount based on your keeping Vibe service for a specific length of time, then, unless otherwise specified in the offer you received, the specified period begins on the Order Date. If you terminate your service before that period of time expires, then you will be subject to an Early Termination Fee. The applicable Early Termination Fee is assessed based upon the plan rate you select. The Early Termination Fee is pro-rated based upon the number of months remaining in the term of the agreement for your selected plan. Proration may not necessarily coincide with your billing cycle, and may include a balloon payment at the end of the proration schedule. You are responsible for all usage charges that are outside of the promotional or plan benefit. Vibe plans will not require you to sign an agreement or commitment for a specific term. Such plans will not carry an Early Termination Fee. Promotional rate plans may require an agreement or commitment for a specific term and such plans will carry an Early Termination Fee. 5.4 Right to Disconnect Service and Upgrade Software. Vibe at all times shall retain the right to suspend or discontinue service, or to disconnect your service, at any time without notice. 5.5 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 lines(s), including any unbilled charges, plus an Early Termination Fee per line, if applicable, as provided below. Cancellation is effective on the date you cancel or designate as the cancellation date. Annual prepayment plan charges are not subject to refund. If you cancel your service before the end of your billing cycle, there are no pro-rated refunds. Charges for any overages, payphone calls to Vibe 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 Vibe 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. On multiple line accounts, any Early Termination Fee arising from a cancellation of a line that is subject to an Early Termination Fee must either be paid upon cancellation or the remaining Early Termination Fee balance may be transferred to one of the other lines on that account. Such Early Termination Fee balance continues on the account until either the Early Termination Fee obligation has expired or been satisfied. 5.6 Fees Upon Disconnection by Us Without a Reason. If we discontinue service, 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. 5.7 Disconnection by Us With a Reason. If we disconnect your service for any reason whereby we choose to disconnect your service immediately without notice, as described in Section 5.4 above, or for your violation of any usage policies established by Vibe from time to time, you will be responsible for all charges through the end of your current service term, including any unbilled charges, plus any applicable disconnection fees, Early Termination Fees and any recovery fees. 5.8 All Charges 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. 5.9 Service Disconnection on Number Transfer – 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 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 Vibe customer, and you will continue to be responsible for all charges and fees associated with your Vibe service. 5.10 Service Disconnection on Number Transfer – Multiple-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 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 Vibe account, and you will continue to be responsible for all the charges and fees associated with the remaining services on your Vibe 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. 5.11 Termination of Service. In order to terminate your service, you must contact Vibe, via telephone, at the number provided on our webpage. If you decide to cancel your service with us, you must contact Vibe directly to do so. Simply disconnecting or returning your device to us 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. ARTICLE VI 6.1 Devices Purchased from Retail. 1. Return of Device. Except as provided in the limited warranty, as described 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. 1. Limited Warranty from Vibe 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: • we receive your device, in its original condition, reasonable wear and tear excluded, together with the original packaging, all parts, accessories, and documentation; • you pay all costs of shipping your device back to us. 6.2 Devices Received from Us. 1. 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. 1. 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 contacting us. 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. 1. 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. 1. 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 Vibe. 2. 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. 6.3 Tampering With the Device. You may not change the electronic serial number or equipment identifier or encryption keys or other authentication or technical data 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 Vibe services with any devices other than Vibe-approved devices received from retailers or from us. 6.5 Disclaimer. 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. ARTICLE VII 7.1 Fees and Charges. We will make available to you all fees and charges applicable to all services provided by Vibe. 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 such 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 $200. 7.2 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 our published rate schedules. 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 our published rate schedules. 7.3 Taxes. 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 Vibe charges and may change without notice. These charges are based on the rates applicable to the address you provide to us for your service. 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 original certificate to the corporate offices of Vibe. Tax exemption will only apply from the date we receive your certificate. 7.4 “Toll Free” Charges. If you use 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. 7.5 Charges for Directory Calls (e.g., 411). We reserve the right to charge you for each call you make to Vibe for directory assistance except, and only to the extent that, such calls are expressly included in another fee applicable to our service. 7.6 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 $__29.00 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 any 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. 7.7 Early Termination Fee. 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, subject to state and local laws. 7.8 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 Vibe 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. 7.9 No Credit Allowances or Refunds for Prepaid Service Plan Customers. Subject to our Money Back Guarantee and any applicable law, we will neither credit nor refund any service fees or any other amounts you pay for any prepaid service plans. 7.10 No Credit for Non-Usage or Misdialing. You understand and acknowledge that you will not be entitled to a credit for, or refund of, any portion of a payment made to us which is attributable to any non-usage of the service, or any misdialing while using the service. ARTICLE VIII 8.1 Billing. We will charge your method of payment in advance for each monthly service plan fee, associated taxes and surcharges. 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. 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. 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. 8.2 Payment. 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. 8.3 Collection. If we disconnect your service, you will continue to 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. 8.4 Notices. You agree to promptly update your account information whenever your personal or billing information changes, including your name, address, e-mail address, telephone number, credit/debit card number and expiration date or other payment method information. You authorize Vibe 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. 8.5 Billing Disputes. If you wish to dispute any Vibe charges on your account statement, you must notify Vibe 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 Vibe if you want to dispute any Vibe charges on your statement. ARTICLE IX 9.1 Lawful Purposes. You may use our service and your device only for lawful and proper purposes. You may not use our service or your device in any way that is illegal, fraudulent, improper or inappropriate. 9.2 Monitoring. 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 is necessary in order to protect Vibe, its affiliates, directors, officers, agents, and employees, as well as its other services from harm. 9.3 Providing Information to Others. If we believe that you have used our service or your device for an illegal 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: • in 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 Vibe’s rights and property; or • in emergency situations where disclosure of such information is necessary to protect Vibe customers or third parties from imminent harm. 9.4 No Transfer of Service. You hereby acknowledge that you are the sole account holder for the service provided 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, as well as charges for aggregated domestic and international usage made by you and others you have authorization 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 Vibe service or features of your Vibe service without first obtaining Vibe’s 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 VIBE OR A VIBE AUTHORIZED RESELLER, OR THAT PREVIOUSLY WAS ASSIGNED TO ANOTHER’S ACCOUNT, VIBE DISCLAIMS ALL WARRANTIES, DAMAGES AND LIABILITIES YOU MAY INCUR BY VIRTUE OF YOUR USE OF SUCH DEVICE, INCLUDING BUT NOT LIMITED TO, THE WARRANTY 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 consented to the assignment in writing. You may elect to authorize others to access your account by contacting Vibe directly. 9.5 No Alterations or Tampering. If you copy or modify, or have someone else copy or modify, the firmware or software of the device or any mobile application in any way that increases the risk of compromising our service, you are responsible for any charges that result and any damages that are incurred by Vibe 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. 9.6 Theft of Service. You may not use, obtain, or facilitate the use of our service, directly or indirectly alone or through others, in any manner that avoids or attempts to avoid Vibe’s policies and procedures, including any illegal or improper manner. You will notify us immediately 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. 9.7 Unauthorized Use of Device; Firmware or Software. Except as may be otherwise agreed to in writing by Vibe, you acknowledge that 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 any 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 at any time. You shall not use any 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 Vibe’s software. ARTICLE X 10.1 As Is Services. You agree that our services are being provided “as is,” except to the extent provided below. 10.2 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 Vibe 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 Vibe’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning our service or device, if any, by Vibe or Vibe’s agents or installers are informational and are not given as a warranty of any kind. With respect to any mobile applications downloaded from and purchased through a third party provider, in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the third party provider, and the third party provider will refund the purchase price for the mobile application to you. It is also understood and acknowledged 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. 10.3 No Credit Allowances for Interruption of Vibe Service. We will not give you any credit for any interruption of Vibe service, including international calling services. 10.4 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 incident described in this Article X. 10.5 Disclaimer of Liability for Damages. In no event will Vibe, 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 delays in the delivery of emergency services accessed through the 911 dialing service, or to obtain emergency help. Vibe further disclaims any and all liability arising out of any resale, reuse, or refurbishment of the device without Vibe’s prior written 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 Vibe was 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 Vibe’s service, there may be federal or state laws that exclude such damages and provide other protections to Vibe which Vibe does not waive or limit in any manner whatsoever. 10.6 Disclaimer of 911 Liability. Vibe disclaims 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 Vibe 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. Additional information is provided on the separate VibeVOIP.com 911/E911 Terms and Conditions, the terms of which are incorporated into this Agreement by this reference. 10.7 Limit on Total Liability. Our total liability under this agreement will not exceed the service charges for the affected time period. Vibe 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. ARTICLE XI 11.1 Indemnification. You agree to defend, indemnify, and hold harmless Vibe, 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). 11.2 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. 11.3 Content. 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. 11.4 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. ARTICLE XII 12.1 Governing Law. These Terms of Service are applicable for VoIP-based services initiated in the United States of America and mobile services worldwide. For U.S. based customers, the law of the state of your residence will govern this Agreement as well as the relationship between you and Vibe, except to the extent such law is preempted by or inconsistent with applicable federal law. For users of Vibe applications outside the United States, the laws of the Commonwealth of Virginia will govern your use of our Service under this agreement as well as the relationship between you and Vibe, 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 set forth in this Agreement. 12.2 No Waiver of Rights. Vibe’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Vibe reserves all of its rights at law and equity to proceed against anyone who uses its services or devices illegally or improperly. All determinations by Vibe under these Terms of Service and exercise of its rights are made and done in Vibe’s sole and absolute discretion. 12.3 Survival. All covenants, whether express or implied, contained in this Agreement shall survive the termination or expiration of this Agreement. 12.4 Third Party Beneficiaries. Individuals or entities who are not a party to this Agreement have no remedy, claim, liability, reimbursement, or cause of action with respect to any provision under this Agreement. This Agreement does not create any third party beneficiary rights. However, with regard to provisions related to any mobile applications made available for download through a third party marketplace, you acknowledge and agree that any such third party’s, and its or their subsidiaries, are third party beneficiaries under 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. 12.5 Legal Age. You hereby acknowledge that you are of legal age to enter into this Agreement and that you have read and fully understand its terms and conditions. 12.6 Entire Agreement. This Agreement, including any future modifications to its terms, and the rates for services, as published from time to time, constitutes the entire agreement between you and Vibe. This Agreement governs your use of Vibe’s service, and the use of Vibe’s services by the members of your household and your guests and employees. This Agreement supersedes any prior agreements between you and Vibe. It also supersedes all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter, whether made by you or Vibe. 12.7 Severability. 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. ARTICLE XIII 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 actions are not permitted. 13.1 Arbitration. Vibe and you agree to arbitrate any and all disputes and claims between you and Vibe. 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 Vibe, 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 “Vibe,” “us” and “you” include Vibe’s 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 these Terms of Service or any prior agreements between you and Vibe. You and Vibe agree that, by entering into this Agreement for mandatory arbitration, both you and Vibe are waiving the right to a trial by jury. 13.2 Informal Resolution of Disputes. Vibe may be able to resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact Vibe to resolve your dispute. 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 in this Article. 13.3 Formal Notice of Disputes. A party who intends to seek arbitration must first send a written Notice of Dispute to the other party at the last known address of record for that party. The Notice of Dispute must describe the nature and basis of the dispute or claim, and it must set forth the specific relief sought. If you and Vibe 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 Vibe may commence an arbitration proceeding. The amount of any settlement offer made by you or Vibe shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Vibe is entitled. 13.4 Arbitrator and Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). 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. Unless you and Vibe mutually agree otherwise, all hearings conducted as part of the arbitration shall take place in the City of Winchester, Virginia. If your claim is for $10,000 or less, you or Vibe 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. 13.5 Fees and Costs. You hereby acknowledge that you are responsible for all costs that you incur in the arbitration, including, but not limited to, arbitration filing fees, arbitrator’s costs and expenses, and attorneys or expert witness fees. You shall not be reimbursed for any such costs incurred regardless of the outcome of the arbitration. 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, Vibe shall pay all fees and costs which it is required by law to pay. 13.6 Waiver of Class Actions. You and Vibe 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 VIBE AGREE THAT YOU AND VIBE 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 Vibe agree that, unless you and Vibe 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. 13.7 Exceptions to Arbitration Agreement. As an alternative to the mandatory arbitration, the parties agree as follows: • either party may take their dispute to general district court in the City of Winchester, Virginia, or a court of competent jurisdiction that is generally considered to be a “small claims court”, if the dispute qualifies for hearing by such court; • if you fail to timely pay amounts due, Vibe 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; • either party 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 party may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of the party, pending the completion of arbitration. ARTICLE XIV 14.1 Modifications to the 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 Vibe, including changes to this Agreement. We may give you notice of a change by posting the change on the home page of VibeVOIP.com, or on your monthly bill, in a newsletter, by e-mail, 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 Vibe will not be 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 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 Vibe services. If you continue to use our service, we will consider this your acceptance of any changes. 14.2 Privacy. Vibe uses, in whole or in part, the public Internet, the public switched telephone network, and third party networks to transmit voice and other communications. Vibe is not liable for any lack of privacy which you may experience from using our service. Please refer to our Privacy Policy for additional information, such as how we use your information and how you can opt out of receiving marketing messaging. Your acceptance of service from us constitutes your agreement with, and acceptance of, our Privacy Policy. 14.3 Additional Authorizations. In addition to the authorizations provided elsewhere in this Agreement, you authorize Vibe as follows: • 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; • 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; • to monitor calls for quality assurance and testing purposes. 14.4 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. 14.5 Copyright and Trademark. 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 any mobile application software. Infringement by you may result in civil or criminal prosecution. 14.6 Third Parties. 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.


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