Geos Communications, Inc. Terms of Service Agreement And Software License Agreement For My Global Talk Mobile Service
This agreement ("Agreement") is between Geos Communications, Inc. ("Geos") and an end user ("End User") of the Geos MyGlobalTalk Service ("My Global Talk"). Any Geos services or products ("Services") provided by Geos to End User shall be governed by the terms and conditions herein. By downloading the My Global Talk software (“Software”) and purchasing the Services, END USER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between End User and Geos by, among other things, requiring (1) MANDATORY ARBITRATION OF DISPUTES; and (2) LIMITING GEOS’ LIABILITY UNDER THE AGREEMENT. End User acknowledges that they are of legal age to enter into this Agreement. Services may be provided by Geos, or an affiliate. Services are only provided where authorized.
1. TERMS AND CONDITIONS. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End User, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE HEREBY OBJECTED TO BY GEOS, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON GEOS. No waiver or amendment to this contract or these terms and conditions shall be binding on Geos unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of Geos.
2. TERM. The term of this Agreement ("Term") begins on the date that End User purchases Services and continues for the duration of the service period as defined by the service plan that is selected by End User ("Plan"). Subsequent terms of this Agreement automatically renew on a monthly basis without further action by End User unless End User gives Geos written notice of non-renewal at least thirty (30) days before the end of the monthly term in which the notice is given. In the event that the user does not use the service for 90 consecutive days, the service may be terminate without notice and any renewal of the service may result in a charge at the then-going rate for the service. End User is purchasing the Service for full monthly terms, meaning that if End User attempts to terminate Service prior to the end of a monthly term, End User will be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges plus any applicable disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of the Services does not excuse the End User from paying all unpaid, accrued charges due in relation to the Agreement hereunder.
3.911 & SERVICE LIMITATIONS. The Federal Communications Commission (FCC) requires that Geos provide E911 Service to all End Users who use Geosservices within theUnited States.Sections 3.1-3.7 apply to all End Users who use Geosservices within theUnited States.Section 3.8 applies to all End Users.
3.1.911 ACKNOWLEDGEMENT. END USER ACKNOWLEDGES THAT Geos'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 3 AND END USER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING END USER'S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. Geos WILL PROVIDE END USER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM END USER.END USER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT Geos HAS ADVISED END USER OF THE CIRCUMSTANCES UNDER WHICH Geos E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING.Geos ADVISES END USER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
3.2.ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
3.3.INTERNET ACCESS. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
3.4.NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. END USER HAS NO CLAIM AGAINST Geos FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
3.5.Geos E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND SERVICE PLANS.E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, TOLL-FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS.E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS.END USERS WHO SUBSCRIBE TO Geos E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT WITH Geos ON THE www.voicestick.com WEBSITE AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES.END USER ACKNOWLEDGES THAT Geos'S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT.END USER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY Geos WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO Geos BY END USER.IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, Geos MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE END USER'S ACCOUNT OR INITIAL ORDER.
3.6.END USER ALSO ACKNOWLEDGES THAT Geos E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, and CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE Geos E911 SERVICES UNSUITABLE FOR SOME END USERS. BECAUSE END USER CIRCUMSTANCES VARY WIDELY, END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON Geos E911 SERVICE. END USER ACKNOWLEDGES THAT IT IS END USER'S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER'S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH Geos E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** Geos E911 SERVICE WILL NOT FUNCTION IF END USER'S PHONE OR COMPUTER FAILS OR IS NOT CONFIGURED CORRECTLY OR IF END USER'S Geos SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE Geos SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO END USER'S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO OUR E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING Geos E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE Geos E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE Geos NETWORK, THERE IS A POSSIBILITY THAT A Geos 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE Geos EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, Geos E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
3.7. END USER ACKNOWLEDGES AND UNDERSTANDS THAT Geos WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING Geos OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Geos, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO END USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, END USER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
4. BILLING, CHARGES AND PAYMENT.
4.1. PAYMENT. Upon purchase of the Service, End User must provide Geos with a valid credit card number from an issuer that is accepted by Geos. End User authorizes Geos to charge the credit card number provided by End User ("Credit Card") for all charges arising from End User's use of the Services. End User agrees to notify Geos of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. Geos shall not be responsible for any charges made by the Credit Card issuer to End User's Credit Card account for exceeding credit limit, insufficient funds or other reasons.
4.2. CREDIT TERMS. All Services provided to End User and covered by the Agreement shall at all times be subject to credit approval or review by Geos. End User will provide such credit information or assurance as is requested by Geos at any time. Geos, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit. The services may be terminated without notice if fraud is suspected.
4.3. BILLING. Geos will provide End User with a monthly on-line billing statement for the Services and bill all charges invoiced to End User's account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, Software charges, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month's service; toll charges and any other applicable charges are billed subsequent to the end of each month's service. Geos reserves the right to charge the Credit Card for cumulative charges due, if at any time End User's out-of-plan toll minutes for the current month exceed ten dollars ($10.00). Billing for monthly service fees commences upon purchase of the Services on the web site, and the first month's monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.
4.4. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, Geos may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by Geos. If charges cannot be processed to the Credit Card and the End User’s account is suspended, End User will be charged a fee of ten dollars ($10.00) to activate the account. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder.
4.5. TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by End User and will be added to any amounts otherwise charged to End User unless End User provides Geos with an appropriate exemption certificate. If any amounts paid for the Services by End User are refunded by Geos, applicable taxes may not be refundable.
4.6. RATE CHANGES. Geos may change the prices for the Services and toll charges from time to time. Geos may change prices, plans, taxes or fees without any advance notice. In the event of a change in prices or toll charges, Geos will post such changed rates to the web site currently located at www.myglobaltalk.com. International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates.
4.7. CREDITS. End User acknowledges and agrees that the Services are provided "as is, where is." Credit allowances for interruption of the Services shall not be provided.
4.8. DISCOUNTS. From time to time in its sole discretion, Geos may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be entered by End User upon purchase of the Services. End User shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service.
4.9. BILLING DISPUTES. End User must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by Geos or End User waives any objection and further recourse. Written statements disputing charges must be sent to: Billing Department, Geos Communications, Inc., 430 n. Carroll Avenue, Suite 120, Southlake, Texas 76092
4.10. ANNUAL PLANS. The annual service fees for Annual Plans is payment for twelve consecutive months of service which commences on the Activation Date. End User will be responsible for any additional charges (such charges shall include shipping charges, equipment charges, toll charges, taxes and any other applicable charges) for services or usage not covered by the plan which will be billed on a monthly basis.Early termination of the annual plan, either requested by the customer or imposed by the company for Terms of Service abuse reasons will be refunded based on a pro rata charge of the normal month to month plan rate of $19.99 or $24.99 and a charge for the cost of devices provided in this plan.At the conclusion of the annual period, the Service will automatically renew to the Annual Plans for another year of service, unless End User chooses to switch to an alternate pricing plan or cancel service prior to the anniversary of the Activation Date.
5. TOLL CHARGES. Every call to or from equipment using the Services that originate or terminate in the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Plan. Calls to a phone number outside the United States will be charged at the current rates published on the My Global Talk.com web site at http://myglobaltalk.com/Rates/CountrySearch.aspx. The duration of each call is to be calculated in one minute increments and rounded up to the nearest one minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials an International PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to an International mobile, rather than landline, or information services or premium rate telephone number may result in higher toll charges. These toll charges are listed on the My Global Talk.com website.
6. ALTERATIONS TO SOFTWARE. End User shall not modify or alter the Software in any way without the express written permission of Geos. End User shall not use the Software except with the Services provided hereunder.
7. PROHIBITED USES. Any use of the Services or any other action that causes a disruption in the network integrity of Geos or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of Geos. End User understands that neither Geos nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited advertisements), infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is purchasing the Services and/or the Software for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of Geos.
8. CELLULAR AIR TIME / TOLL CHARGES / ROAMING FEES / INTERNATIONAL USE. End User acknowledges and understands that when My Global Talk calls are connected to the My Global Talk network via a regular cellular phone call you are using your existing mobile service provider’s network. All charges, air time, toll charges, roaming fees otherwise charged by your mobile phone service provider will be collected, in addition to the toll charges owed to Geos. Use of Geos’ My Global Talk outside of the United States will incur international roaming and toll charges from your mobile phone service provider according to your current plan in addition to the Geos’ My Global Talk toll charges.
9. CHANGES TO THE AGREEMENT, SERVICES OR PLAN. Geos reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (a "Change of Service"). In the event of a Change of Service, Geos will post to the Web Site currently located at www.myglobaltalk.com. Notice will be considered received by End Users and such changes will become binding to End Users, on the date the changes are posted to the Web Site ("Change Date"), and no additional notice will be required. If End User does not send Geos notification of their desire to terminate this agreement or uses the Service after the Change Date, End User is deemed to have accepted and consented to the change of terms and conditions of the Service. If End User does not consent to the change of service and terminates this agreement, End User will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. End User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. The Plan change will take effect in the first month after the Plan is changed. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
10. TERMINATION. Geos reserves the right, at its sole discretion, to suspend, terminate or change the Services without advance notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, Geos, Geos' network or other End Users' use of the Services. Geos reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that Geos' determination is final and binding on End User. Geos may require an activation fee to change or resume a terminated or suspended account.
11. PRIVACY. Geos’ My Global Talk may utilize the public Internet and third party networks to provide fax, voice and video communication services. Accordingly, Geos cannot guarantee the security of fax, voice and video communications of End User. Geos is committed to respecting an End User's privacy. Once End User chooses to provide personally identifiable information, it will only be used in the context of the End User's relationship with Geos. Geos will not sell, rent, or lease End Users' personally identifiable information to others. Unless required by law or subpoena or if End User's prior permission is obtained, Geos will only share the personal data End User provides with other Geos entities and/or business partners that are acting on Geos' behalf to complete the activities described herein. Such Geos entities and/or national or international business partners are governed by Geos' privacy policies with respect to the use of this data. Geos is required to file numerous reports with different administrative bodies. As such, Geos may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, Geos reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either Geos or any company affiliated with Geos. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Geos may disclose personally identifiable information.
12. TECHNICAL SUPPORT. Geos provides technical support to End Users via telephone and e-mail for the Services, Equipment and Software provided hereunder. Support for other applications and uses is not provided or implied.
13. BREACH. In the event of End User's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse Geos for all attorney, court, collection and other costs incurred by Geos in the enforcement of Goes’ rights hereunder and Geos may keep any deposits or other payments made by End User.
14. INDEMNIFICATION. End User agrees to defend, indemnify and hold Geos, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
15. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL GEOS OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF LIFE, INJURY, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF GEOS OR ITS VENDORS OR OTHERWISE.
16. WARRANTY AND LIABILITY LIMITATIONS. GEOS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER GEOS NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO GEOS’S OR END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF GEOS’S OR ITS VENDORS' NEGLIGENCE. ANY CLAIM AGAINST GEOS MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND GEOS HAS NO LIABILITY THEREAFTER. GEOS’S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. GEOS MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN GEOS. IN NO EVENT SHALL GEOS’S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY END USER TO GEOS IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
17. EXPORT COMPLIANCE. End User agrees to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
18. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by Geos or its vendors.
19. SOFTWARE COPYRIGHT. The Software and any additional software used by Geos to provide the Services are protected by copyright law and international treaty provisions. End User may not copy the Software or any portion of it. Except to the extent permitted by applicable law, you must not disassemble, de-compile, reverse engineer or otherwise attempt to replicate the Software.
20. SURVIVAL. The provisions of section 13, 14, 15, 16, 19, 20, 22, and 23 shall survive any termination of the Agreement.
21. NOTICES. Geos communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by End User at the time of registration for the Services or as subsequently specified by End User ("Email Address"). End User is responsible for notifying Geos of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
22. EXCLUSIVITY OF AGREEMENT. The Parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the subject matter of this Agreement exclusively in contract pursuant to the express terms and provisions of this Agreement; and the Parties hereto expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement. Furthermore, the Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm's length negotiations; all Parties to this Agreement specifically acknowledge that no Party has any special relationship with another Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm's length transaction. The sole and exclusive remedies for any breach of the terms and provisions of this Agreement (including any representations and warranties set forth herein) shall be those remedies available at law or in equity for breach of contract only (as such contractual remedies may be further limited or excluded pursuant to the express terms of this Agreement); and the Parties hereto hereby waive and release any and all tort claims and causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any tort claim or cause of action based-upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement).
23. NO THIRD PARTY LIABILITY. This Agreement may only be enforced against the named Parties hereto. All claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), may be made only against the entities that are expressly identified as Parties hereto; and no officer, director, shareholder, employee or affiliate of any Party hereto (including any person negotiating or executing this Agreement on behalf of a Party hereto) shall have any liability or obligation with respect to this Agreement or with respect to any claim or cause of action (whether in contract or tort) that may arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including a representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement).
24. EQUIPMENT. To provide the Services, Geos may provide Equipment to End User. All Equipment shipments are F.O.B. Geos's facility. Geos's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. End User shall be required to obtain authorization from Geos to return any Equipment. Geos will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty.Geoswill not cover replacement for lost, stolen, or modified equipment.Equipment returned by End User that is not covered under warranty may be refused by Geos, and End User will be responsible to pay return shipping charges.
25. LOST, STOLEN, ALTERED, OR BROKEN EQUIPMENT. End User shall not modify the Equipment in any way without the express written permission of Geos. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen, or broken Equipment and may be required to purchase a replacement to continue service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. End User shall immediately notify Geos of any lost or stolen Equipment and shall cooperate with Geos in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At Geos's sole option, failure to report lost or stolen equipment in a timely manner will cause End User to be responsible for all service fees accrued until the time that Geos is informed of the loss or theft and can effect a termination of the Services.
26. RETURNS AND ADJUSTMENTS. No Equipment may be returned by End User for any reason without prior approval of Geos. All returns shall be in original packaging or equivalent. End User shall be responsible for all costs related to shipping to Geos any Equipment that is being returned. Any Equipment returned to Geos without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation End User must immediately obtain a return material authorization number from Geos, return to Geos any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to Geos an amount equal to the fair retail price of the equipment minus any payments End User had previously paid specifically for said Equipment.
27. PERSONAL USE. Geos' Service Plans for residential End Users are for the reasonable personal residential use of End User only. Usage above 3500 minutes inconsistent with regular residential usage patterns as defined by Geosfor Residential plans. Usage above 4200 minutes inconsistent with regular business usage patterns as defined by Geosfor Business plans. Minutes used in excess will be billed at current Next 2 Nothing per minute plan rates for each overage minute.End User is not to resell or transfer the Service or Equipment to any other person for any purpose, without express written permission from Geosin advance. End Users shall not use the Services for commercial or governmental purposes, or for profit or non-profit activities, including, but not limited to, home office, business, sales, tele-commuting, autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with personal and residential usage.End User shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind or nature. End Users further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national or international law or regulation. End User agrees to notify Geos immediately if usage of the Services changes from personal residential to business use and to subscribe to a business plan.Geos reserves the right to immediately terminate or modify the Services of any End User if Geos determines, in its sole discretion, that End User is not using the Services for End User's reasonable personal residential use.
28. TELEPHONE NUMBER. Any telephone number provided by Geos ("Number") to the End User shall be leased and not sold. End User is not to use the Number with any other device other than the Equipment without the express written permission of Geos. Geos reserves the right to change, cancel, or move the Number at its sole discretion.
29. COMMERCIAL USE. End User agrees that the use of the Service and/or Equipment for activities other than reasonable personal residential use will obligate End User to pay Geos's higher rates for business services for all periods of such use, including past periods, in which End User used the Service for commercial or governmental purposes. If End User subscribes to Geos's business plan ("Business Plans"), the Service and Equipment are provided to End User as a small business user. This means that End User is not to resell or transfer the service or Equipment to any other person for any purpose, without express written permission from Geos in advance. End User agrees that Geos Business Plans do not confer the right to use the service for auto-dialing, continuous, or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting, or fax blasting. Geos reserves the right to immediately terminate or modify the Service, if Geos determines, in its sole discretion, that End User's Business Plans' Service is being used for any of the aforementioned activities.
30. GENERAL PROVISIONS.
30.1. This Agreement, and all claims or causes of action (whether in contract or tort) that maybe based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed, construed, interpreted, and applied by the internal laws of the State of Texas without reference to its choice of law rules.
30.2. This Agreement, along with the rates posted to the web site currently located at http://www.myglobaltalk.com, is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the Parties regarding the subject matter of this Agreement, save and except, any nondisclosure agreement in effect between the Parties.
27.3. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, END USER AND GEOS WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO END USER, INCLUDING ANY BILLING DISPUTES (“CLAIM”). Disputes in connection with the Agreement shall be finally settled by arbitration under the rules of the American Arbitration Association (the “AAA”). The arbitration proceedings shall take place in Dallas, Texas and be decided by a single arbitrator. The Parties shall share equally in the expenses of the AAA. The Parties hereto agree that all actions or proceedings arising in connection with the enforcement of an arbitration award pursuant to this paragraph of this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Dallas, State of Texas. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the Parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each Party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of Dallas, State of Texas shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this section by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Any final judgment rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
30.3.1. End User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
30.3.2. Prefiling Notice of Claim. BEFORE INSTITUTING ARBITRATION OR SUIT, END USER AGREES TO PROVIDE GEOS WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO GEOS AT THE ADDRESS BELOW. IF GEOS IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN END USER OR GEOS MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN THIS AGREEMENT. All claim notices should be sent to:
Director of Customer Service, Geos Communications. Inc., 430 N. Carroll Avenue, Suite 120, Southlake, Texas 76092
30.4. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective.
30.5. Failure by either Party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the Parties.
30.6. This Agreement is for the sole benefit of the Parties hereto and nothing herein expressed or implied shall give or be construed to give to any person, other than the Parties hereto any legal or equitable rights hereunder.
30.7. Geos shall not be liable for any failure or delay in performance under this Agreement to the extent such failure or delay arises from Force Majeure. A Force Majeure is fire, explosion, earthquake, storm, flood, strike, labor difficulties, war, insurrection, riot, act of God or the public enemy, or any law, act, order, export or import control regulations, proclamation, decree, regulation, ordinance, or instructions of local, state, federal or foreign governmental or other public authorities, or judgment or decree of a court of competent jurisdiction.
Revised 11/25/2009
