Fonality Service Terms and Conditions /
End User License Agreement (Fixed Term)

IMPORTANT—READ CAREFULLY: This Terms of Service and End User License Agreement (“Agreement”) is a legal agreement between you (either an individual or a single entity, henceforth “you”, or “Customer”) and Fonality, Inc. (“Fonality”) for the Fonality software, products and services identified above, which may include one or more of the following: computer software, telephone and other equipment, certain telecommunications services, associated hosted online services and access to same, media, printed materials, and “online” or electronic documentation (collectively, the “Service”).

By agreeing to purchase the Fonality Service, you are agreeing to the following terms and conditions. Please read them carefully before agreeing to purchase the Service. By agreeing to purchase the Service, you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by these terms and conditions. The terms and conditions contained in the Estimate and stated herein supersede and replace any and all terms and conditions, whether verbal or in writing or set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications.

Term
1. The Customer agrees to purchase the Service for a period of twelve months from the date of the Estimate (Initial Term), payable in accordance with the payment schedule in the Estimate. (The Estimate shall mean that certain document to which the the Customer has agreed and accepted, either by electronic or physical signature, electronic approval (online “click through”) or other means mutually agreed to, and which contains a detailed description of the Service supplied by Fonality). This Agreement to purchase the Service shall automatically renew for successive twelve (12) month periods unless the Customer cancels the Service under 1.2 below.
2. Fonality in the course of providing the Service may provide to the Customer certain equipment, including but not limited to telephone handsets, routers and other network equipment (the “Equipment”). for use in the Customer business premises, subject to the Customer not being in breach of any of the terms contained within this Agreement, and upon a) the expiration of the Initial Term and b) the Customer cancelling his Service, Fonality will transfer all title and interest in any Equipment located on the Customer Site(s). For clarity, such transfer of title shall only occur where the Customer has paid a minimum of twelve monthly payments for the service.
911 & SERVICE LIMITATIONS
The Federal Communications Commission (FCC) requires that Fonality provide E911 Service to all of the Customers using the Service within the United States. The terms in this section apply to all Customers regardless of location.

E911 service provided by FONALITY works differently than traditional wireline 911 emergency services. It is very important that you read, understand and accept the following warnings and limitations.

These characteristics may make Fonality E911 services unsuitable for some customers. Because customer circumstances vary widely, customers should carefully evaluate their own circumstances when deciding whether to rely solely upon Fonality E911 service. Customer acknowledges that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet customer’s emergency calling needs, and to make the necessary provisions for access to emergency calling services.

Fonality advises Customer to maintain an alternative means of accessing traditional 911 services.
- Cost: Fonality passes through to Customer a mandatory E911 service fee of $25 per use to cover the costs associated with providing this service. This fee will be charged to Customer for each occurrence.
- 911 ACKNOWLEDGEMENT: CUSTOMER ACKNOWLEDGES THAT FONALITY’S EQUIPMENT AND SERVICES (THE “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 AND CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. FONALITY HEREBY PROVIDES CUSTOMER WITH AN ADVISORY NOTICE REGARDING 911 EMERGENCY DIALING AND CUSTOMER AGREES AND ACKNOWLEDGES THAT FONALITY HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH FONALITY E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING.
- WARNING LABELS: FONALITY WILL PROVIDE CUSTOMER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED.
- LIMITED AVAILABILITY: CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN ALL CONDITIONS, INCLUDING BUT NOT LIMITED TO THE FOLLOWING:
  ELECTRICAL POWER: THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE FONALITY SERVICE, INCLUDING FOR E911 PURPOSES.
  
  INTERNET ACCESS: THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
  
  CONFIGURATION AND AVAILABILITY: FONALITY E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S FONALITY SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES
  
  NETWORK ISSUES: DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE FONALITY NETWORK, THERE IS A POSSIBILITY THAT A FONALITY 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.
  
  NON-VOICE SYSTEMS: THE SERVICES MAY NOT FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. CUSTOMER HAS NO CLAIM AGAINST FONALITY FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
- PHYSICAL LOCATION: CUSTOMERS WHO SUBSCRIBE TO FONALITY E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT WITH FONALITY, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES.
  CUSTOMER ACKNOWLEDGES THAT THE ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY FONALITY WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO FONALITY BY CUSTOMER. THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. 
  
  IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, FONALITY MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE CUSTOMER’S ACCOUNT OR INITIAL ORDER.
- LIMITATION OF LIABILITY: INDEMNIFICATION: CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT FONALITY WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING FONALITY OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS FONALITY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISH SERVICES TO CUSTOMER 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, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
Billing & Payments
1. Orders: Customer’s signature (electronic or physical) of an Estimate is a non-cancellable Order by the Customer for the Services. Orders are not binding until accepted by Fonality, in its sole discretion. Except in the case of a breach, as provided in Section 10, once an order is accepted by Fonality, it may be changed or cancelled only with the written consent of the parties.
2. Payment by Credit Card Only: All orders require a valid credit card number (the “Credit Card”). Customer authorizes Fonality to charge the Credit Card for all charges arising from Customer’s use of the Product. Customer agrees to notify Fonality of any change to the Credit Card information including, but not limited to, changes in account number, expiration date or billing address. Fonality shall not be responsible for any damages resulting from cancellation of Service arising from unreported changes to Credit Card information, credit limitation or other inability to charge the Credit Card.
3. All purchases of the supply of the Service contained in the Estimate, including but not limited to Activation Fees, Service fees and shipping charges are non-refundable. Upon receipt of a signed Estimate from Customer, Fonality will begin the process of setting up the applicable Service for the Customer. Therefore, once and order has been placed, and accepted by Fonality, no refund of any Activation Fees or Setup Charges will be made, regardless of whether or not such Product was used.
4. Customer acknowledges and agrees that the services are provided "as is, where is." Credit allowances for interruption of the services shall not be provided.
5. From time to time in its sole discretion, Fonality may offer promotions or discounts of activation or other fees. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not issued at the time of purchase.
6. Billing: Fonality will bill all charges invoiced to Customer’s account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges.
  1. Monthly Recurring Fees:
    Monthly service fees including any associated taxes and fees are paid in advance of each month’s service.
  2. Non-Recurring Charges Toll: charges (as defined below), and any other applicable charges are billed subsequent to the end of each month’s service. The Credit Card will be charged prior to the end of the month if at any time Customer’s cumulative Non-Recurring Charges exceed two hundred fifty dollars ($250.00). The Credit Card will be charged for any additional Non-Recurring Charges at the end of the month.
  3. Add-on Orders: Any additional licenses or modules added, after the commencement of service, will be billed pro-rata for the initial month.
7. Non-Payment: If payment cannot be charged to the Credit Card for any reason then, without any notice to you, Fonality reserves the right to either suspend or terminate your access to and/or use of the Service and to terminate this Agreement. An Activation Fee may be imposed prior to reinstatement of services. Delinquent payments are subject to a late-payment charge of the greater of 1.5% of the outstanding balance, or the maximum amount allowed by law, whichever is higher. Fonality shall not be responsible for any third party costs incurred for exceeding credit limit, insufficient funds or other reasons.
8. Taxes and Fees
  1. Taxes: Prices contained in the Estimate 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 Customer and will be added to any amounts otherwise charged to Customer, and Customer will be liable for and will pay in full all such amounts.
  2. E911: All Customers are required to subscribe to Fonality E911 service and will be subject to a monthly E911 service charge. The monthly E911 service fee shall be included in the applicable business plan charges for the associated line, and reimburses Fonality for the direct costs it incurs in providing Fonality E911 service, including state, county and municipal E911 surcharges, E911 automatic location information (ALI) database storage, line information database and caller id (LIDB/CNAM) expenses, and any other taxes or surcharges directly or indirectly associated with the provision of services to customers subscribing to this service. Fonality reserves the right to adjust the level of charges associated with the provision of e911 services to reflect increases or decreases in the costs it incurs. Fonality will provide Customer with thirty days notice (30 days) of any such rise in e911 fees. Fees may apply for usage of E911 service as outlined in Section 2 herein.
  3. Regulatory Recovery Fee: A Regulatory Recovery Fee of 5% of all monthly recurring charges will be charged monthly to offset costs incurred by Fonality in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every phone number assigned, including toll free and virtual numbers.
9. Toll Charges: Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is considered a Toll Call. 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. Subject to the section 3.12 and section 4 below, Customers who are on an Unlimited Plan shall not be charged for telephone calls to the Inclusive Countries. The current list of Inclusive Countries (and related exclusions to the types of call covered) can be found at http://www.fonality.com/legal/international-service.html . As noted therein, certain types of calls, including but not limited to mobile phones and premium rate phones, will not be included in the unlimited calls program, and will be billed in accordance with section 3.11
10. International rates:
11. Fraud:
12. Price Changes and other Modifications:
13. Customer must dispute any charges for the Product in writing within thirty (30) days of the date of the charge by Fonality or Customer waives any objection and further recourse. Written statements disputing charges must be sent to: Billing@fonality.com . The existence of a validly filed dispute shall in no way relieve Customer of its obligation to pay all amounts billed by Fonality, including any disputed amounts.
Fair Use for “Unlimited” Service Plans
1. Reasonable Business Use: Any of Fonality’s Service Plans that offer unlimited minutes of PSTN calls ("Unlimited Plans") are for reasonable business use of Customer only. Such use shall not include certain activities including, but not limited to, any of the following (“Reasonable Business Use”):
2. Autodialing, continuous or extensive call forwarding, use of virtual extensions for regular business use, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, 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 reasonable business usage.
3. Any other use resulting in improper usage patterns, including but not limited to dialing patterns wherein the Customer’s inbound or outbound minutes exceed 80% of the aggregate usage and/or average minutes per seat are in excess of 90% of all Fonality customers.
4. If Fonality determines, in its sole discretion, that Customer is not using the Unlimited Plans for Reasonable Business Use, Fonality reserves the right to immediately (a) charge the credit card of Customer for the current per-minute rate for any usage determined to be outside of Reasonable Business Use and (b) to terminate or modify the terms of the Product for that Customer.
PROHIBITED USES. Any use of the Product or any other action that causes a disruption in the network integrity of Fonality or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Product at the sole discretion of Fonality. Customer understands that neither Fonality nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements), infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer agrees and represents that it is purchasing the Product 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 Fonality. Customer shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer further agrees 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. Any use found to be inconsistent with this restriction will result in termination of the Service.
TELEPHONE NUMBER. Any telephone number provided by Fonality ("Number") to the Customer shall be leased and not sold. Fonality reserves the right to change, cancel or move the Number at its sole discretion. Customer should NOT cancel service with the current/previous service provider(s) until Fonality confirms to Customer that the numbers have been successfully ported to Fonality. Customer is responsible for the timely termination of all services with current/previous service provider and the settlement of any charges owed to the current/previous service provider.
EQUIPMENT. All shipments are F.O.B. Fonality’s facility.
1. Fonality will provide replacement Equipment during the term of the Agreement on the following basis:
  1. Any Equipment which is not performing to original manufacturer specifications will be replaced by Fonality with a like for like equivalent that will be in a “like new” condition, subject to the following limitations. Fonality shall have the right to reject any request for replacement Equipment where the returned equipment has failed due to reckless or, in Fonality’s sole discretion, unreasonable use. Further, Fonality may decide in its sole discretion to reject any offer for replacement Equipment where Customer is not acting in good faith, or where the customer has a history of excess failures or requests for replacement.
  2. Shipping Costs: Fonality will pay for return and replacement shipping for any Equipment failures that are due to manufacturer defects or otherwise through normal business use of the Equipment. Customer will be responsible for the shipping costs to and from Customer site for Equipment which has failures caused through accidental damage or lack or reasonable care.
  3. RMA Process: Customer must contact Fonality to obtain a Return Material Authorization Number (RMA Number). All returned goods must be shipped clearly marked with an RMA number, and be accompanied by a complete description of the nature of the defect. No return of goods will be accepted by Fonality without an RMA Number obtained from Fonality. The RMA number must be clearly marked on the outside of the return package; packages without an RMA number will be returned to the Customer.
2. Return of Fonality Equipment: Subject to, and notwithstanding section 1 of this Agreement, and within 7 days of termination of the Service for any reason, Customer shall return, at Customer’s expense, the Equipment. The Equipment must be returned to Fonality in good working order and in its original packaging materials. If the Equipment is not received in good working order within 7 days of termination of Service, Customer’s credit card will be charged for the current full retail price of such Equipment.  All returns must be accompanied by a valid Returned Materials Authorization (RMA) number, clearly indicated on the outside of the package, or they will be returned to you. Please contact Fonality Support for assistance.
3. No Use of Uncertified Equipment: The Product is intended for use with Fonality-provided or Fonality-certified equipment only. Fonality reserves the right to terminate or suspend service if other equipment is used by Customer without prior written approval by Fonality.
Termination
1. By Customer: Customer may terminate this Agreement in accordance with section 1 of this Agreement. Customer is responsible for all charges, including usage, until the termination date.
2. By Fonality: Fonality reserves the right, at its sole discretion, to suspend, terminate or change the Service without advanced notice for any reason, including without limitation, misuse of the Product in any way, Customer’s breach of this Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Product, Fonality, Fonality’s network or other Customers’ use of the Product. Fonality reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that Fonality’s determination is final and binding on Customer. Fonality may charge an activation fee to resume a terminated service.
3. Termination Charges: Upon Termination, in addition to any outstanding balance incurred or due on your account, Customer shall pay the full amount of the monthly recurring charges for the terminated Services for the month of the effective termination (regardless of whether the termination date is mid-billing cycle), in addition to any additional charges incurred under Section 1 of this Agreement. You agree that Fonality may charge such unpaid balance to your Credit Card.
4. No Liability for Termination: Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms. However, expiration or termination will not extinguish claims or liability (including, without limitation, for payments due) arising prior to such expiration or termination. Further, in the event of early termination due to Customer breach or non-payment, Customer shall remain fully obligated for the payment of all Fees for services ordered for the remainder of the then current Term.
Technical Support. Fonality provides technical support to Customer via telephone and e-mail for the Product only and support for other applications and uses is not provided or implied.
Indemnification. You agree to hold harmless and defend Fonality, at your expense, from and against any and all third party claims, actions proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Fonality arising out of or relating to your (a) violation or breach of any term of this license agreement, or (b) misuse of the Product.
Disclaimer of Warranties; Limitation of Liability.
1. Disclaimer of Warranties: Except as expressly set forth ABOVE, FONALITY provides the product “as is” and with all faults. FONALITY hereby disclaims ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE and NONINFRINGEMENT, with regard to the product. without limiting the foregoing, FONALITY does not warrant that the product will be free of bugs, errors, viruses or other defects.
2. Disclaimer of Certain Damages: IN NO EVENT WILL FONALITY BE LIABLE FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE PRODUCT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY EVEN IF FONALITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. Limitation of Liability: FONALITY’S LIABILITY ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCT IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT REGARDLESS OF THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing disclaimer of warranties, disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this Agreement, the exclusions and limitations set forth above may not apply to you. You may have other rights which vary from state to state or province to province. For further warranty information, you may contact Fonality at 200 Corporate Pointe, Suite 350, Culver City, California 90230.
4. Disclaimer of Third Party Actions and Control: Fonality does not and cannot control the flow or quality of data to or from the Network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which Fonality Customers’ connections to the Internet (or portions thereof) may be impaired or disrupted. Accordingly, Fonality disclaims any and all liability resulting from or related to such events.
Intellectual Property.
1. For the purpose of this Section, the term “Fonality Intellectual Property” shall mean all intellectual property (including software or programming) delivered hereunder. Any software distributed by Fonality which is licensed under the GNU General Public License (GPL) is specifically excluded from this definition.
2. All Fonality Intellectual Property is solely for use by Customer as shipped, and may not be used as a replication master or otherwise copied without the expressed consent of Fonality. Use of software delivered as a separate item shall be subject to a separate license agreement that Customer shall be required to accept prior to delivery. Customer acknowledges that all Fonality Intellectual Property furnished by Fonality hereunder and the contents thereof are the proprietary property of Fonality, and Customer has no right or interest therein except the nonexclusive right to use it in the product in which it was delivered or as otherwise provided in a written license agreement. Customer agrees not to directly or indirectly reproduce, decompile or provide or otherwise make available to any third party any Fonality Intellectual Property. Customer shall be liable for all damages, including loss of anticipatory profits, incurred by Fonality as a result of such unauthorized use, copy or replication. The rights granted hereunder or use of Fonality products does not convey any rights or ownership in Fonality patents, copyrights, trademarks, intellectual property or know-how.
Export Restrictions. You acknowledge that the Product is subject to U.S. export restrictions. You agree to comply with all applicable laws and regulations that apply to the Product, including without limitation the U.S. Export Administration Regulations.
U.S. Government License Rights. All Product provided to the U.S. Government is provided with the commercial license rights and restrictions described in this EULA. By installing, copying or using the Product, the U.S. Government agrees that the Product is “commercial computer software” or “commercial computer software documentation” within the meaning of DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Product by the U.S. Government shall be governed solely by the term of this license agreement and shall be prohibited except to the extent expressly permitted by the terms of this License Agreement.
Governing Law; Jurisdiction. Unless expressly prohibited by local law, this EULA and all orders hereunder shall be governed by and construed under the laws of the State of California, U.S.A. without regard to any conflict of law principles to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply. You hereby irrevocably submit to jurisdiction of the state and federal courts located in Los Angeles County, California with respect to any proceeding under this EULA or relating to the Product. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this EULA except in such courts.
Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.
English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English.
Entire Agreement. This EULA sets forth the entire agreement of Fonality and you with respect to the Product, the hosted service, and the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements whether written or oral. No amendment, modification or waiver of any of the provisions of this EULA will be valid unless set forth in a written instrument signed by the party to be bound thereby.
Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of this EULA will remain in full force and effect and shall control.
Notices. Any notice required or permitted to be sent under this Agreement shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties set forth in this order. Notice so sent will be deemed effective three days following deposit in the mail, proper postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.
Modifications. We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. You can find the most recent version of these terms and conditions at http://www.fonality.com/legal/terms-conditions-fixed-terms.html (the “Website”), with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. Therefore, we encourage you to check the date of our terms and conditions whenever you visit the Website to check if they have been updated. You must review this agreement on a regular basis to keep yourself apprised of any changes. If you do not agree to the revised terms and conditions, your sole recourse is to immediately stop all use of the Product and/or hosted service. Your continued use of the Product and/or hosted service following the posting of modifications will constitute your acceptance of the revised terms and conditions. Should you have any, please contact us at: info [at] fonality.com.

Fonality Service Terms and Conditions / End User License Agreement (Fixed Term)

Fonality Service Terms and Conditions /
End User License Agreement (Fixed Term)