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Terms & Conditions
Last Updated As Of December 9, 2011
These Terms of Service (this "Agreement") constitute the entire agreement between A.V.M. Software Inc. (together with its affiliates, "we" "our" or "us") and you ("you") with respect to the Firetalk™ services provided through the website accessed at www.firetalk.com (the "Firetalk Services"). By subscribing to or otherwise accessing or using the Firetalk Services, you agree to be bound by this Agreement.
This Agreement is effective as of the "Last Updated As Of" date set forth above.
We may change or revise this Agreement at any time, for any reason, and if you use or access the Firetalk Services at any time on or after the "Last Updated As Of" date set forth above, you are deemed to have been notified of, and your use or access of the Firetalk Services after that date signifies your acceptance of, any changes or revisions arising on or before that date. For this reason, please visit this page on a regular basis to ensure that you are familiar with the most recent version of this Agreement. You can contact us with any questions or concerns you may have about this Agreement at email@example.com.
Firetalk Services. Upon your subscription to the Firetalk Services, we hereby grant to you a personal, nonexclusive, nontransferable, revocable license to access and use the Firetalk Services for your non-commercial use. You shall have no right to sell, resell, reproduce, duplicate, copy, distribute, create derivative works or exploit for commercial purposes, any portion of the Firetalk Services, access to the Firetalk Services, or use of the Firetalk Services nor make any claim that you have such right. Unless explicitly stated otherwise, any new features provided by us that augment or enhance the current Firetalk Services shall also constitute Firetalk Services and shall be subject to this Agreement. We shall not have any responsibility or liability for any communications, information, content and/or materials (collectively, "Content") that you transmit via, or otherwise provide to us in the course of your use of the Firetalk Services, and you assume all such responsibility and liability. We have no obligation to monitor the Firetalk Services, but we retain the right to do so, as well as to take any action to satisfy any law, governmental request, or to protect us, the Firetalk Services and users of the Firetalk Services. We shall have no responsibility for the transmission, corruption or loss of your Content. We have the right to restrict or terminate access to the Firetalk Services by any telephone numbers at our sole discretion. These may include, but are not limited to, telephones associated with particular geographic locations, special service numbers, satellite telephony and call forwarding services.
NO EMERGENCY OR 911 SERVICE. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE FIRETALK SERVICES DO NOT ALLOW YOU TO ACCESS ANY 911 OR SIMILAR EMERGENCY SERVICES (NO TRADITIONAL 911, E911, OR SIMILAR ACCESS TO EMERGENCY SERVICES). You should always have an alternative means of accessing 911 or similar emergency services. The Firetalk Services are not intended to replace your primary phone service, such as traditional landline or mobile phone.
Contract Period. Firetalk Services are provided on a month to month basis and can be cancelled by you at anytime, and such cancellation will become effective at the end of the current monthly billing period.
Acceptable Use. You shall be solely liable for any transmission of Content sent through the Firetalk Services. We have no control over your Content or any other content transmitted via the Firetalk Services, nor will we be liable for such content. You may not use the Firetalk Services to create or distribute any images, sounds, messages or other materials which are obscene, harassing, racist, malicious, fraudulent, infringing or libelous, nor are you allowed to use the Firetalk Services for any activity that may be considered to be unethical, immoral, violative of any third party's rights, or illegal. Further, you agree to abide by all rules, regulations, procedures and policies of Firetalk and any policies of the networks connected to the Firetalk Services. You agree to abide by all applicable local, state, national, foreign and international laws and regulations and are solely responsible for all acts or omissions that occur under your account or password, including the content of your transmissions through the Firetalk Services. Normal Use. The Firetalk Services are designed for individual use in social and business settings. Normal usage is considered less than 20 hours per account per month. Users with continued use over 20 hours per account may be offered a different plan to fit their specific needs or other options at the sole discretion of Firetalk. Users with excessive or non-acceptable usage may have their service limited or terminated at any time at our sole discretion.
Coverage. Your monthly Firetalk subscription includes calls to the 48 contiguous states (this excludes special, premium, service and non-geographic numbers). International calls and calls to Alaska, Hawaii, U.S. Virgin Islands, Puerto Rico and other territories and possession of the United States are not included and may incur additional charges and/or termination of your account at the discretion of Firetalk.
Payment for Firetalk Services. We will charge you the rates in effect under your plan as published on www.firetalk.com, plus any enhanced service charges or taxes at the time of subscription. Such rates may be updated by us from time to time and will be effective when published on www.firetalk.com. Some charges (such as, but not limited to, surcharges) may accumulate in your account before you are charged for such amounts, or such amounts may be charged to you as assessed. Your billing cycle starts on the day the subscription purchase is successfully processed. You agree that all payments will be made to us via credit or debit card, issued by a US bank, including MasterCard, VISA, American Express, or Discover. We may change the credit cards accepted at any time, at our sole discretion. Your name and address as it appears on your account must also be on the credit account from which Payment is made. If you provide a credit card number that we accept for payment of your monthly bill, you are authorizing us to charge the amounts you owe, then or later, to that credit card account and to demand immediate payment from the card issuer. Every time you use the Firetalk Services, you re-affirm that we are authorized to charge your card. You agree to authorize us to charge purchases made online to the credit card account supplied to us when the subscription was initiated, or the card that we have on file when the purchase is made. You agree to pay all costs and expenses, including without limitation attorney's fees, incurred by us to collect any monies due under the terms of this Agreement.
Proprietary Rights. We shall retain all right, title and interest in and to the Firetalk Services including all copyrights, trademarks, patents and all other intellectual property rights covering or embodied by the Firetalk Services including, without limitation, with respect to all technology and telephone numbers used in connection with or provided as part of the Firetalk Services. You may not, nor may you enable or help any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Firetalk Services or any aspect thereof for any purpose whatsoever. You may not allow any third party to access the Firetalk Services for any purpose whatsoever. The copyright notices and other proprietary legends may not be removed from the Firetalk Services and no right to use any trademark is granted under this Agreement. You may not grant any sublicense, lease or other right in the Firetalk Services to any third party. All rights not expressly granted under this Agreement are retained by us.
Modification of Firetalk Services. During the term of this Agreement, we may modify or discontinue the Firetalk Services at any time and with or without notice to you. You agree that we are not be responsible or liable in any way for deactivation or deletion of accounts or for loss or corruption of voice mails, communications, e-mail, data or information as a result of, or arising out of, administration of the Firetalk Services, whether or not you are given prior notice thereof. You are solely responsible for creating a back-up copy of any important or critical information that is stored on the Firetalk Services. We are not responsible or liable in any way for any information or data loss in connection with the Firetalk Services.
Number porting. Firetalk does not support number porting. If you cancel your service, your old number may be made available to other customers after a cooling off period.
Termination of Firetalk Services. To maintain or improve the Firetalk Services, to prevent fraud, or for any other reason determined us, at our sole discretion, we may restrict, suspend, terminate or modify your Firetalk Services with or without notice. Upon any termination in accordance with the foregoing, we may immediately deactivate or delete your account and all related information and files in your account, reassign any telephone numbers associated with the account, and/or bar any further access to such files, information, or Firetalk Services. We are not liable to you or any third party for any reason for terminating this Agreement or your access to Firetalk Services or for modifying this Agreement and/or the Firetalk Services.
Indemnity. You agree to defend, indemnify and hold harmless us, our affiliates and our and their directors, officers, employees, agents and vendors from and against any and all claims, losses, liabilities (including attorney fees), damages, costs and expenses, in any way arising from or related to your use of the Firetalk Service, your violation of this Agreement or your transmission or other communication of any Content on or through the Firetalk Services.
DISCLAIMER OF WARRANTIES. WE PROVIDE THE FIRETALK SERVICES ON AN "AS IS" BASIS AND GRANT NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, ANY WARRANTY REGARDING CONTENT OR ACCESS TO THE FIRETALK SERVICES, AND ANY WARRANTIES OF TITLE, NON INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE FIRETALK SERVICES OR THE FUNCTIONS OR CONTENT OF THE FIRETALK SERVICES MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE FIRETALK SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE FIRETALK SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE DO NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES PROMOTED, OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE FIRETALK SERVICES. WE ARE NOT A PARTY TO, AND DO NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR DIRECTORS, EMPLOYEES, AGENTS OR VENDORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE FIRETALK SERVICES, YOUR USE THEREOF, OR THE CONTENT WHETHER ARISING AT LAW OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SET FORTH ABOVE. IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
General Information. The laws of the state of New York, excluding its conflicts-of-law provisions, shall govern the interpretation and enforcement of this Agreement. You expressly agree that exclusive jurisdiction and venue for any claim or dispute relating to your use of the Firetalk Services shall be in the state and federal courts of New York (Manhattan) County, New York. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found to be invalid, the other provisions of the Agreement will remain in full force and effect. You may not assign this Agreement or any of your rights or obligations hereunder and any attempt to do so is null and void.