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PHONEFUSION

TERMS OF SERVICE FOR

PhoneFusion One

PhoneFusion Voicemail Plus

PhoneFusion Home

            The Terms of Service ("Terms of Service" or "Agreement") constitutes the agreement between PhoneFusion, Inc. ("PhoneFusion" or "our") and you ("Subscriber" or "You") relating to the PhoneFusion services described in this Agreement (the "Services").

1. Terms of Service.

(a) Read all the terms and conditions of this Agreement carefully.  By using the Services, You indicate your acceptance of the terms and conditions contained in this Agreement and acknowledges that You have read the Agreement and agrees to be bound by the provisions of this Agreement for the use of the Services provided by PhoneFusion.

(b) If You are not willing to be bound by the terms and conditions of this Agreement, You must promptly exit from this web page and discontinue use of the Services.

(c) If Subscriber is less than 18 years of age, or is otherwise unable by law to be a party to this Agreement, Subscriber acknowledges that provider is providing the service with the implicit understanding that Subscriber's legal guardian has agreed and consented to Subscriber's use of the Service.  Subscriber must be at least 13 years of age to use PhoneFusion's services.  PhoneFusion reserves the right to discontinue services in the event Subscriber does not comply with the terms and conditions contained herein.

(d) The terms, specifications, features, and fee and charge structure of our PhoneFusionOne Standard Service, Premium Service and Virtual Attendant, PhoneFusion Home and Fusion Voicemail Plus are set forth at www.phonefusion.com.  Please review them carefully.  These terms, specifications and features, which may be modified or changed from time to time by PhoneFusion at its discretion in accordance with the terms of this Agreement, are incorporated into this Agreement by reference.

2. Grant of Rights to Use Services.

(a) Effective upon acceptance of this Agreement, PhoneFusion hereby grants to Subscriber a personal, nonexclusive, nontransferable, revocable license to access and use the Services selected by Subscriber, for Subscriber's non-commercial use.

(b) Subscriber shall have no right to sell, resell, reproduce, duplicate, copy, distribute, create derivative works or exploit for commercial purposes, any portion of the Services, access to the Services, or use of the Services nor make any claim that it does have such right.

(c) The Services provided by PhoneFusion hereunder may allow Subscriber to perform various online messaging and communications functions.  Unless explicitly stated otherwise, any new features provided by PhoneFusion that augment, enhance or change the current Services shall also constitute "Services" and shall be subject to these Terms of Service.

3. 911 or Emergency Services and Systems.

WARNING!  LIMITATIONS ON 911 EMERGENCY CALLING AND EMERGENCY SYSTEMS COMPATIBILITY.  THESE LIMITATIONS PRESENT A POTENTIALLY HAZARDOUS SITUATION WHICH, IF NOT AVOIDED, COULD RESULT IN DEATH OR SERIOUS INJURY.

(a) The Service only provides access to 911 emergency service through the PhoneFusionOne VOIP enabled packages.  Our PhoneFusionOne VOIP packages provide Subscriber enhanced 911 service.  While enhanced 911 is the most advanced form of emergency dialing service available, there are some limitations when it is provided by a VOIP provider.  If Subscriber has PhoneFusionOne Service through one of our VOIP enabled packages, Subscriber should always have an alternative means of accessing the 911 emergency service.  If Subscriber does not have one of the PhoneFusionOne VOIP enabled packages, Subscriber will not be able to access the 911 emergency service through the Service at all.  In that case, Subscriber should always have another means of accessing the 911 emergency service.

(b) The Service does not provide access to home or office security systems or medical monitoring equipment.  You must have another means of accessing these systems and services.

4. Phonefusion's Proprietary Rights.

(a) As between the parties, PhoneFusion shall retain all right, title and interest to the Services including all copyrights, trademarks, patents and all other intellectual property rights thereto, including, without limitation, with respect to all technology and telephone numbers used in connection with or provided as part of the Services.

(b) Subscriber may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. Subscriber may not allow any third party to access the Services for any purpose whatsoever.

(c) The copyright notices and other proprietary legends shall not be removed from the Services and no right to use any trademark is granted under this Agreement.

(d) Subscriber may not grant any sublicense, lease or other right in the Services to any third party. All rights not expressly granted under this Agreement are retained by PhoneFusion.

5. Subscriber Registration.

(a) Subscriber agrees to provide true, accurate, current and complete information to PhoneFusion upon signing up for the Services, and at subsequent times, as requested by PhoneFusion.

(b) If Subscriber provides information that is, or that PhoneFusion suspects to be, false, inaccurate, not current or incomplete, PhoneFusion has the right to suspend or terminate Services and refuse any and all current or future use of all Services, or any portion thereof.

(c) Subscriber's registration information will not be provided to third parties, unless required by law, or in the event Subscriber grants PhoneFusion the right to provide that information.  PhoneFusion respects the privacy of its subscribers. Please refer to the PhoneFusion Privacy Policy at www.phonefusionone.com for more details.  This policy, which may be updated from time to time by PhoneFusion in its discretion, is incorporated into this Terms of Service by reference.

(d) Subscriber shall maintain and promptly update the registration information to keep it current.

(e) Upon completion of all registration information and acceptance of this Agreement, Subscriber will receive a password, user ID, and when applicable, a PIN and telephone number.

(f) Subscriber is solely responsible for the maintaining the confidentiality of Subscriber's password and PIN, and will be responsible for all transactions and activities that occur as a result of Subscriber's disclosure of such password and/or PIN, whether or not such transactions and/or activities were authorized by Subscriber.

(g) Subscriber shall not give account information to third parties and shall at all times be responsible and liable for any transactions or activities that occur on Subscriber's account.

(h) Subscriber shall immediately notify PhoneFusion if any unauthorized use of Subscriber's account has occurred or of any other breach of security.  In no event shall PhoneFusion be liable or responsible for any use of, or transactions or activities that occur in, Subscriber's account.

(i) Subscriber agrees that the PhoneFusion Services are for Subscriber's personal, non-commercial use and agrees to provide PhoneFusion the forwarding telephone numbers that are controlled by or under the common control of Subscriber during the time that Subscriber is a user of the Services.  If PhoneFusion believes or suspects that any of Subscriber's forwarding telephone information is false, inaccurate, not current or otherwise not under the control of Subscriber, PhoneFusion has the right to suspend or terminate Services and refuse any and all current or future use of all Services, or any portion thereof.

6. Termination.

(a) The PhoneFusion Services are for Subscriber's personal, non-commercial use.  PhoneFusion reserves the right to immediately terminate, disconnect or modify a Subscriber's Service if PhoneFusion determines, in its sole discretion, that Subscriber's use of the Service is, or at any time was, inconsistent with normal personal, non-commercial usage patterns.

(b) To maintain or improve the Services, to prevent fraud, or for any other reason determined by PhoneFusion in its sole discretion, PhoneFusion may restrict, suspend, terminate or modify Subscriber's Service with or without notice.

(c) Subscriber may terminate its Service at any time by calling customer service.

(d) Upon any termination of the Service, PhoneFusion may immediately deactivate or delete Subscriber's account and all related information and files in Subscriber's account, reassign any telephone numbers associated with the account (which have not been ported to a different service provider), and/or bar any further access to such files, information, or the Services.

(e) Subscriber shall be responsible for all fees and charges incurred through the close of business on the date that Subscriber's account is deactivated.

(f) If PhoneFusion or Subscriber terminates the Service, Subscriber shall not be entitled to any refund or pro ration of any prepaid amounts or credits (if any).  

(g) PhoneFusion shall not be liable to Subscriber or any third party for any reason for terminating this Agreement or access to Services or for modifying this Agreement and/or the Services.

(h) If Subscriber has opted for a VOIP service package and PhoneFusion has provided a VOIP internet phone adapter for free or reduced cost and Subscriber terminates service within 120 days, Subscriber must return the phone adapter to PhoneFusion, postpaid, within 14 days of termination.  Failure to return the phone adapter may result in a charge of up to $79.00 on Subscriber's credit card.

7. Warranty Disclaimer.

(a) THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND PHONEFUSION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF. PHONEFUSION MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY SUBSCRIBER.

(b) PHONEFUSION MAKES NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. PHONEFUSION IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL.

(c) PHONEFUSION DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICES OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES. SUBSCRIBER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES ARE AT SUBSCRIBER'S SOLE RISK AND DISCRETION AND PHONEFUSION WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER OR SUBSCRIBER'S PROPERTY.

(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM PHONEFUSION, IT'S EMPLOYEES OR AGENTS, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF SERVICE.

(e) SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO SUBSCRIBER.

8. Limitation of Liability.

(a) IN NO EVENT, INCLUDING THE FAILURE OF 911 CALLS OR OTHER EMERGENCY CALLS TO FAIL TO COMPLETE, SHALL PHONEFUSION BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY. PHONEFUSION'S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE MONTHLY SUBSCRIPTION FEES ACTUALLY PAID BY SUBSCRIBER FOR THE SERVICES, IF ANY, FOR THE MOST RECENT PERIOD OF 3 MONTHS. THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.

9. Indemnification.  Subscriber shall indemnify and hold harmless PhoneFusion, its directors, officers, employees and agents from and against all claims, liabilities, losses, costs, expenses (including reasonable attorneys fees), and damages resulting from any negligent acts, omissions or willful misconduct by Subscriber, Subscriber's use of the Services and/or any breach of the terms and conditions of this Agreement by Subscriber.

10. International Use.  PhoneFusion makes no representation that the Services or the materials on its web site(s) are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Subscriber agrees to comply with all applicable foreign and domestic laws, rules and regulations regarding use of the Services and the transmission of technical data exported from or imported to the United States or the country in which Subscriber resides.

11. Modification to Services.

(a) During the term of this Agreement, PhoneFusion may modify or discontinue the Services at any time and with or without notice to Subscriber.

(b) Without limiting the generality of the foregoing, PhoneFusion may, from time to time, with or without notice and at its sole discretion, establish or change its practices, limitations and restrictions for administering the Services.

(c) Subscriber agrees that PhoneFusion shall not be responsible or liable in any way for deactivation or deletion of accounts or for loss of e-mails, voice mails, communications, postings, data or information as a result of, or arising out of, the administration, modification or termination of the Services, whether or not Subscriber is given prior notice thereof.

(d) PhoneFusion may delete accounts that are inactive for an extended period of time as determined by PhoneFusion in its sole discretion.

(e) PhoneFusion may delete pending accounts that have not yet been validated by Subscriber after a period of time as determined by PhoneFusion in its sole discretion.

(f) PhoneFusion shall not be liable to the Subscriber or any third party for any reason for PhoneFusion modifying or terminating the Services, in whole or in part.

(g) Subscriber is responsible for creating a back-up copy of any important or critical information that Subscriber stores on the Services.  PhoneFusion shall not be responsible or liable in any way for any information or data loss in connection with the Services.

12. Modification to Agreement.

(a) PhoneFusion reserves the right to change the terms and conditions of this Agreement, by posting a revised version of the Agreement at PhoneFusion's Terms of Service or successor site.

(b) PhoneFusion may replace, update or change any website referred to in this Agreement at any time at its discretion.  Reference to any website herein shall include any changes or updates to such website, or any successor website.

(c) Use of the Services signifies Subscriber's agreement to all terms, conditions and notices contained or referenced herein. Continued use of any part of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes, amendments or modifications and all changes, amendments or modifications shall thereupon become binding upon the Subscriber.

(d) If Subscriber does not agree to the changes, Subscriber's only recourse shall be to immediately cease all use of the Services.

13. Rules and Regulations.

(a) Subscriber shall be solely liable for any transmissions sent or received through the Service. PhoneFusion has no control over the content of any transmission nor will it be liable for such content.

(b) PhoneFusion has the right to restrict termination to any telephone numbers in its sole discretion. These may include, but are not limited to certain geographic locations, special services numbers, satellite telephony services, and other call forwarding services.

(c) Subscriber agrees not to use the Service:

· in connection with chain letters, junk email, voicemail or fax blasting or broadcasting;

· for spamming, telemarketing, autodialing, extensive call forwarding, or any duplicative or unsolicited messages (commercial or otherwise);

· to harvest or otherwise collect information about others, including e-mail addresses, without their consent;

· to create a false identity or forged e-mail address or header, impersonate another person, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;

· to create or transmit through the Service unlawful, harassing, racist, malicious, fraudulent, infringing defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material, statements, sounds, messages, or information of any kind or nature;

· for any activity that may be considered, or are, unethical, immoral, violative of any third party's rights, or illegal;

· to transmit any material or information that may infringe on the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;

· to transmit any material statements that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;

· to violate any U.S. or foreign law regarding the transmission of technical data, statements or information, or software exported through the Service;

· to interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;

· to attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;

· to interfere with another subscriber's use and enjoyment of the Service or another entity's use and enjoyment of similar services;

(d) Subscriber shall not use robots, data mining techniques, or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from the Service or use any automated means to manipulate the Service, use the Service to violate any law, rule or regulation, violate any third party's intellectual property or personal rights, or exceed Subscriber's access to the Service.

(e) Subscriber will abide by all rules, regulations, procedures and policies of PhoneFusion and any policies of the networks connected to the Services that are in effect during the time that Subscriber is a user of the Service.

(f) Subscriber agrees to abide by all applicable local, state, national, foreign and international laws and regulations, and is solely responsible for all acts or omissions that occur under Subscriber's account or password, including the content of Subscriber's transmissions through the Service.

14. Recording Conversations.  PhoneFusion provides a function that allows Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is responsible for complying with the local laws in the relevant jurisdiction when using this feature.

15. Bill Payment.

(a) Depending on the Service packages and options chosen, Subscriber may be required to pay monthly subscription charges, enhanced service charges, and/or usage charges in connection with the Services, as stated at www.phonefusionone.com.  There may be additional fees if Subscriber requests a change in any Services.  There may also be applicable taxes, surcharges, assessments, government fees and charges for the Services that PhoneFusion shall be required to collect from Subscriber.

(b) PhoneFusion will charge Subscriber the rates plus any enhanced service charges in effect for the Service packages and options for which Subscriber subscribes at the time of subscription, and as such rates and charges may be updated by PhoneFusion from time to time during the time Subscriber is a user of the Services.  Some charges (such as, but not limited to, surcharges) may accumulate in Subscriber's account before Subscriber is charged for such amounts, or such amounts may be charged to Subscriber as assessed. If Subscriber has enrolled in a Service package and chooses to change the package, and if there are one or more days remaining on Subscriber's current subscription, Subscriber will be credited for those days in the calculation of Subscriber's charges. Subscriber's billing cycle starts on the day Subscriber's subscription is successfully processed. If there is a change in Service package, there may be a resulting change in Subscriber's billing date.

(c) Monthly subscription charges and enhanced service charges and related taxes (if any) will be billed monthly in advance.  Usage charges and related taxes (if any) and other charges will be billed monthly in arrears.

(d) Subscriber agrees that all payments will be made to PhoneFusion via credit or debit card, issued by a US bank, including MasterCard®, VISA®, AmericanExpress®, or Discover®.  PhoneFusion may change the credit or debit cards it accepts at any time, at its sole discretion. Subscriber's name and address as it appears on Subscriber's PhoneFusion account must also be on the credit or debit account from which Payment is made. If Subscriber provides a credit or debit card number that PhoneFusion accepts for payment of Subscriber's monthly bills, Subscriber is authorizing PhoneFusion to charge the amounts Subscriber owes, then or later, to that credit or debit card account and to demand immediate payment from the card issuer. Subscriber also agrees to pay, under the terms of Subscriber's agreement with the card's issuer, the amounts charged to Subscriber's credit or debit card.  Every time Subscriber uses PhoneFusion Services, Subscriber re-affirms that PhoneFusion is authorized to charge Subscriber's card.  Subscriber agrees to authorize PhoneFusion to charge the subscriptions made online to the credit or debit card account supplied to PhoneFusion when the subscription was initiated, or the card that PhoneFusion has on file when the subscription is made. Subscriber agrees to pay all costs and expenses, including without limitation attorney's fees, incurred by PhoneFusion to collect any monies due under terms of this Agreement.

16. Communications with Phonefusion.  Subscriber may provide information, including, but not limited to, feedback, data, answers, questions, comments, suggestions, plans and ideas to PhoneFusion. Such information shall be deemed non-confidential and PhoneFusion assumes no obligation to protect such information from disclosure.  The submission of such information to PhoneFusion shall in no way prevent the purchase, sale, manufacture, or use of similar products, services, plans and ideas by PhoneFusion for any purpose whatsoever. PhoneFusion shall be free to reproduce, use, disclose and distribute such information to others without restriction. Subscribers shall have no recourse against PhoneFusion for alleged infringement or misappropriation in connection with any information or materials submitted to PhoneFusion hereunder.

17. General.

(a) This Agreement, and as it may be amended or changed from time to time as provided herein, including any documents and provisions incorporated herein by reference, merges all prior written and oral communications and sets forth the entire agreement of the parties with respect to the Services.

(b) In the event any portion of this Agreement shall be held illegal, void, or ineffective, the remaining portions hereof shall remain in full force and effect and such illegal, void or ineffective provisions shall be construed, as nearly as possible, to reflect the intentions of the parties.

(c) All notices under this Agreement shall be in writing and delivered by e-mail or in writing, to PhoneFusion at its then current corporate mailing address, or to support@phonefusion.com, and to Subscriber at Subscriber's address or e-mail address in PhoneFusion's records as the same may be changed or updated pursuant to notice properly given hereunder by Subscriber.

(d) This Agreement shall be construed in accordance with the laws of the State of Florida without regard to its conflict of law provisions. Each party submit to the exclusive jurisdiction of the state and federal courts located in Broward County, Florida, and irrevocably waive any right that such party may have to assert the such forum is not convenient or that any such court lacks jurisdiction.  Subscriber hereby waives their right to a trial by jury in any action brought against PhoneFusion and/or any of its affiliates in favor of a trial by Judge of the Courts.

(e) Subscriber agrees and acknowledges that any breach of the provisions regarding PhoneFusion's proprietary rights contained in this Agreement shall cause PhoneFusion irreparable harm and PhoneFusion may obtain injunctive relief, without the need to post a bond, surety or other security, as well as seek all other remedies available to PhoneFusion at law and in equity.

(f) Subscriber shall not transfer or assign this Agreement or Subscriber's rights under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permited assigns and legal representatives.

(g) The failure of PhoneFusion to exercise its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement. The provisions of this Agreement relating to intellectual property ownership, restrictions on use or disclosure of the Services, disclaimers of warranties, limitations of liability and indemnification shall survive termination or expiration of this Agreement for any reason.

(h) The U.N. Convention for the Sale of Goods shall not be applicable to this license of the Services to Subscriber.

(i) The section titles in this Agreement are for convenience only and have no legal or contractual effect.

18. Nature of Service.  The Service is not a regulated telecommunications service, and PhoneFusion provides it on a best efforts basis.  There are important distinctions between a regulated telecommunications service and the PhoneFusion Service.  The PhoneFusion Service is subject to different regulatory treatment than a regulated telecommunications service.  This treatment may limit or otherwise affect Subscriber's rights of redress before regulatory agencies.  Events beyond PhoneFusion's control may affect the Service, such as power outages, fluctuations in the internet, Subscriber's underlying internet service provider or broadband service, or maintenance.  PhoneFusion will act in good faith to minimize disruptions to Subscriber's use of and access to the Service.

19. Questions.  If Subscriber has any questions about the Services or this Agreement before signing up, please contact a PhoneFusion customer service representative by telephone at 888.278.7701 or by e-mail at support@phonefusion.com

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