NET2PHONE (“NET2PHONE” OR “US” OR “OUR”) MAY MODIFY THESE TERMS OF SERVICE WITHOUT NOTICE AND SUCH MODIFICATIONS SHALL BE DEEMED EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED TERMS OF SERVICE TO THE SITE. REVIEW THESE TERMS OF SERVICE PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS.
In addition to the Website Terms & Conditions contained on the PicuP website (the PicuP website and all subdomains are collectively referred to as the “Site”), You (“You,” “Your” or “Customer”) acknowledge that by registering for and/or using the PicuP virtual telecommunications service and its associated toll free and/or local telephone numbers and other features (collectively, the “Service”), You agree to abide by and comply with these Terms of Service. If you do not wish to be bound by these Terms of Service, You may not use the Service. You represent and warrant that You are at least 18 years old and that you possess the legal right to agree to these Terms of Service. These Terms of Service are binding upon You and any sub-users under your Account.
SPECIAL TERMS APPLICABLE TO BETA TRIAL PERIOD: During the beta trial period, if there is any conflict between the terms set forth in this Section and the terms set forth in the Terms of Service, then the terms set forth in this Section shall control. By clicking the "I accept..." checkbox or by executing a written copy of these Terms of Service, You agree to be bound by these Terms of Service including these SPECIAL TERMS APPLICABLE TO BETA TRIAL PERIOD. It is expressly understood, acknowledged and agreed that You may provide to Net2Phone suggestions, comments and feedback regarding the Service, including but not limited to usability, bug reports and test results (collectively, "Feedback"). If you provide Feedback to Net2Phone, then you grant Net2Phone a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up right to publicly display, broadcast, transmit and distribute the Feedback (and derivative works thereof), including but not limited to Your name and company name for attribution purposes. During the beta trial period, You will receive 1000 free inbound minutes per month calculated from the date of sign-up; provided that, if You do not use a minimum of 25 minutes per month, then Net2Phone reserves the right to close Your Account. Once Your free minutes have been used during a month, Services will be suspended until the next month begins. Net2Phone may terminate your beta trial service for any reason or no reason without prior notice. Once the beta trial period ends, Your free 1000 minute per month plan will automatically convert into the then-commercially available 100 minute free plan.
Rights Granted. Subject to the terms of these Terms of Service and the Website Terms & Conditions, Net2Phone grants You the right to use the Service. All rights not expressly granted under these Terms of Service are retained by Net2Phone.
Registering for the Service. Upon registering for the Service and establishing a Service account (an “Account”) and at subsequent times as requested by Net2Phone, You agree to provide to Net2Phone Your true, accurate, current, and complete personal name and business name, billing address (if applicable), email address(es), contact phone number, credit card information (if registering for one of our paid Plans), and other information which Net2Phone deems necessary to administer Your Account (“Customer Information”). You represent and warrant that the Customer Information You provide is accurate, current, and complete, and agree to promptly update any of the information if it changes. If You provide Customer Information that is, or that Net2Phone suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, Net2Phone has the right, in its sole discretion, to immediately suspend or terminate the Service and/or Your Account. If a portion of the Service (i.e. voicemail set up) requires You to provide Net2Phone with email addresses, then You agree to provide only valid and authorized emails. Net2Phone has no responsibility to You, any sub-users or to any third party in the event you provide Net2Phone with inaccurate or incomplete email addresses.
Service Plans. The Service is intended for use as an inbound service that forwards to your personal or business telephone number. The various calling plans associated with the Service (each a “Plan”) can be found on the Site. The Plans, as well as our pricing and billing methods, may be modified by us at any time in our sole discretion upon posting to the Site. Each paid Plan has: (i) a flat monthly service fee (the basic charge associated with your Service, including a set number of inbound minutes); and (ii) an additional overage per minute rate if you exceed the set number of calling minutes in your Plan. You will be billed for the minutes You use above your Plan allowance at the rates posted on the Site. Calls are billed in one (1) minute increments. The free Plan has no monthly service fee, includes a set number of free inbound minutes and a 25 minute minimum usage requirement per monthly billing cycle. Once your free minutes have been used during Your monthly billing cycle, Services will be suspended until Your next billing cycle begins. For the free plan, if You do not use 25 minutes per billing cycle, then Net2Phone reserves the right to close Your Account. Inbound calls to your telephone number may only be forwarded to telephone numbers located in the continental United States. You may not downgrade from a paid Plan to a free Plan during a billing cycle nor may You downgrade from a more expensive Plan to a less expensive Plan during a billing cycle. Plan upgrades are allowed at any time during a billing cycle, and in such event you will be billed the difference between the price of the Plans for the entire billing cycle (without pro-ration). Underutilized minutes will not be rolled-over to a subsequent billing cycle. Other terms and restrictions associated with each Plan can be found on the Site and are binding upon You.
3.1 Blocked Destinations. Net2Phone reserves the right, in its sole discretion, to block access to certain high cost locations. Please contact Net2Phone Customer Support for more information.
3.2 Text-To-Speech Feature. Net2Phone will allow You to create text-to-speech telephony system greetings for use in connection with the Service (“Audio Files”). You will be able type text that will be converted to speech (applying either a computer-generated male or female pre-programmed voice) for the purpose of using such audio as prompts and greetings. The Audio Files may only be used in connection with the Service and not for any other purpose. The Audio Files shall not contain any profanity, illegal content, misrepresentations or false information. The Audio Files shall not be downloaded, copied, modified, translated, distributed, reverse-engineered, reverse compiled or de-compiled and will only reside on our servers. You understand and agree that you obtain no ownership rights in the Audio Files. You hereby agree to indemnify and hold harmless Net2Phone, its licensors and their respective affiliates against any claims, suits or proceedings asserted or commenced by any third party arising out of, or relating to, Your creation or use of the Audio Files. Net2Phone may, in its sole discretion, terminate Your access to the Audio Files in the event it determines that You are in violation of this Section.
Accounts. The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Service with Net2Phone. If Net2Phone is unable to determine the valid owner of the Account, Net2Phone reserves the right to suspend and/or terminate the Account and Service.
Prohibited Uses. Net2Phone reserves the right, in its sole discretion, to immediately and without notice terminate the Service to You for any use of the Service or any other action that causes a disruption in the network integrity, or directly or indirectly threatens or compromises the security of Net2Phone, its vendors, or the Service. Customer agrees, represents, and warrants that it will use the Service for its own internal use only, and shall not resell, transfer or charge for the Service without the express written permission of Net2Phone. Customer shall not use the Service for any unlawful, harassing, illegitimate, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable purpose. . Any use found to be inconsistent with these restrictions will result in the immediate termination of the Service.
Intellectual Property Rights.You acknowledge and agree that any and all patents, copyrights, trademarks, logos, slogans, service marks, trade secrets, and all other intellectual property rights (collectively, "Proprietary Rights") in the Service are and shall remain the sole and exclusive property of Net2Phone and its licensors and suppliers. Nothing in these Terms of Service shall be construed to grant, transfer, or assign any Proprietary Rights to, or vest any Proprietary Rights in, Customer or any third party. You are only entitled to the limited use of the rights expressly granted to You in these Terms of Service as may be amended from time to time. The Services, the systems and methods that it accesses, and/or the related services provided are covered by one or more patents or patents pending in the U.S. or elsewhere. A list of those patents can be found at http:// WHITE-VP.COM. You will not take any action to jeopardize, limit, or interfere with Net2Phone’s or a third party’s Proprietary Rights. You acknowledge and agree that any unauthorized use of the Proprietary Rights is a violation of these Terms of Service, as well as a violation of applicable intellectual property laws. You acknowledge and understand that all title and rights in and to any third party content that may be accessed through the Service is the property of the respective content owners and may be protected by applicable intellectual property laws. You agree and acknowledge that any breach of the provisions regarding intellectual property ownership contained in these Terms of Service shall cause Net2Phone irreparable harm and Net2Phone may obtain injunctive relief and seek all other remedies available in law and in equity.
No Modifications. You agree not to undertake, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, decrypting, misappropriating or hacking of the Service, or any component thereof, including components supplied by third parties. You agree not to misappropriate, intercept, capture, emulate, decrypt, or redirect the communications protocols used by Net2Phone for any purpose.
Telephone Numbers and Number Porting. Telephone numbers provided by Net2Phone to You or transferred by You to Net2Phone belong to You but are subject to these Terms of Service. Net2Phone shall not be liable for any damages (including consequential, special damages or other damages) in the event that it needs to assign You a new telephone number. Net2Phone cannot guarantee that requested telephone numbers will be available or that Your existing provider will port Your number. For porting numbers into Your Account, please contact Customer Support. Net2Phone will use reasonable efforts to facilitate number transfers or port requests for You, provided that You comply with the necessary and specific procedures for porting between service providers. Net2Phone does not guarantee the successful porting of Your numbers to Your Account. You acknowledge and understand that Net2Phone will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number, or for the unauthorized porting of any telephone number by a third party. For porting telephone numbers out of Your Net2Phone Account, follow the procedures of Your new service provider. You understand that porting telephone numbers out of Your Account does not automatically terminate Your Account.
Conditions and Reasonable Use. Customer acknowledges and agrees that Net2Phone's obligations to provide the Service are expressly conditioned upon (i) Net2Phone’s receipt of all payments due hereunder (if applicable), and (ii) Customer's satisfaction of the technical requirements set forth herein including the provision of accurate Customer Information to Net2Phone. Net2Phone reserves the right to (i) require You to register and pay for an additional Account(s) and/or (ii) suspend Your Service if, in Net2Phone's sole discretion, Your use of the Service exceeds what would be expected of normal business use or You abuse the Service. Such restrictions apply even if Net2Phone offers You Plans with “unlimited” use or extensions. You agree that Net2Phone is entitled to monitor Your use of Service for purposes of enforcing such restrictions.
Payment Terms. The Service is provided to You on a monthly prepaid basis. Upon Your registration for a paid Plan, Net2Phone will charge Your credit card (or alternative method of payment as agreed by Net2Phonethe) applicable monthly recurring Plan fees and charges for one month of Service. All pricing is stated in United States dollars. For billing purposes, Your start of Service date will commence on the day You register for the Service. No refunds are allowed for canceled Services. Overage charges will be charged to Your credit card at the end of Your billing cycle. If You are paying for the Service with a credit card, then You agree that prior to the provision of any Service by Net2Phone, You will provide Net2Phone with Your credit card information and You authorize Net2Phone to bill Your credit card on a monthly basis for as long as You use the Services. You agree to advise and notify us of any changes to Your credit card information, such as credit card account number or expiration date changes. If the credit card on Your account is declined or fails for any reason, Net2Phone reserves the right to disconnect Your Service without notice and terminate Your Account and Net2Phone reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees due and owing at the time. Your ability to utilize the Service is contingent upon Net2Phone’s prior receipt of payment for the month in which the Services are to be utilized. You are solely liable for any transactions or activities by You or anyone else that occur on Your account, and in no event shall Net2Phone be liable for any unauthorized use of Your Account. You acknowledge that You are financially responsible for any unauthorized use of Your account resulting in extra costs or fees. Upon termination, we will charge You any fees and any other outstanding charges and disconnect the Service. Net2Phone also reserves the right to charge termination and transfer fees, if applicable.
Taxes. Prices for the Service do not include any customs, duties, sales, use, value added, excise, federal, state, local, public utility, universal service, E-911 fees or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer. Should Net2Phone pay or be required to pay such liabilities (including any taxes and fees that were due but not charged or previously collected), You agree that Net2Phone may charge You for such payments upon receipt of an invoice and showing of indebtedness to Net2Phone. If any amounts paid for the Service are refunded by Net2Phone, applicable taxes may not be refundable. All prices, taxes, surcharges, and fees are subject to change at any time. You are responsible for paying all charges for Your Account, including but not limited to, toll free, local, long distance, international, additional feature charges, 411, operator assisted charges, and directory assistance charges, and for all taxes, surcharges, and fees imposed on You or us as a result of your use of the Service.
Product Availability.Net2Phone does not warrant that any descriptions, pricing, availability, marketing materials, promotional flyers, advertisements, or other printed or electronic materials or information related to the Service is accurate, complete, reliable or comprehensive. Certain advertised products or features related to the Service may be unavailable or subject to additional terms, restrictions and conditions. You acknowledge and agree that the Service may not be available 100% of the time.
Service Changes. You understand and agree that Net2Phone may make modifications or changes to the Service, which will not materially diminish the functionality of the Service, without prior notice to You.
911 Service. 911 services are not available for use in connection with the Services.
Universal Service Recovery Fee. Net2Phone is required to contribute to the federal Universal Service Fund, which provides support to promote access to telecommunications services at reasonable rates for those living in rural and high-cost areas, income-eligible consumers, rural health care facilities, and schools and libraries. Net2Phone reserves the right to recover these costs from its customers. Universal Service Fund rates are set by the Federal Communications Commission and are subject to change.
Term and Termination. Subject to the terms of these Terms of Service, the Services will be provided to you on a month-to-month basis. Net2Phone reserves the right to terminate the Service for any reason upon thirty (30) days’ notice to You or immediately without notice if You violate any portion of these Terms of Service. Net2Phone shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Service. You may terminate the Service for any reason upon thirty (30) days’ notice by sending an email to SUPPORT@PICUP.COM. The subject line of Your email must state “Account Termination.” The Service will be disconnected within two (2) business days following your request and final charges (overage charges, etc., if applicable) will be charged to Your credit card (or other method of payment) immediately following disconnection. If You terminate the Service in the middle of a billing cycle, or Net2Phone terminates or suspends the Service as a result of Your breach of these Terms of Service or other terms and conditions contained on the Site, You shall not be entitled to any refund or pro ration of any pre-paid amounts, credits, or other amounts paid to Net2Phone prior to the termination or suspension date. Upon cancellation or termination of the Service, Customer shall relinquish and discontinue use of the Service. Upon the termination of Service for any reason, disconnection fees may apply. Prior to termination of Service, You may request to transfer Your telephone number to another carrier in accordance with the “Telephone Number and Number Porting” clause set forth above. Failure to transfer Your telephone number to another carrier prior to termination of Service will result in Your telephone number becoming the property of Net2Phone following termination.
Disclaimer of Liability. THE SERVICE IS PROVIDED "AS IS" AND NET2PHONE MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. NEITHER NET2PHONE NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF YOUR DATA FILES, SOUND 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 NEITHER NET2PHONE NOR ITS VENDORS WILL BE LIABLE FOR DELAYS OR INTERUPTIONS IN ACCESS TO OR USE OF THE SERVICE. NET2PHONE BEARS NO RESPONSIBILITY OR LIABILITY FOR ANY COSTS, DAMAGES, LIABILITIES, OR INCONVENIENCE CAUSED BY CALLS MADE TO YOUR NUMBER.
NET2PHONE MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. NET2PHONE IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICE. NET2PHONE IS NOT RESPONSIBLE FOR THE CONTENT OF TRANSMISSIONS OR FOR THE CONTENT OR FUNCTIONALITY OF ANY THIRD PARTY NETWORK USED IN CONNECTION WITH THE SERVICE.
Limitation of Liability. IN NO EVENT SHALL NET2PHONE, ITS PARENT, SUBSIDIARIES AND AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, RESELLERS, CONTRACTORS AND LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION AND LOSS OF INFORMATION) WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF NET2PHONE HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY NET2PHONE. NET2PHONE'S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED AND CAPPED IN THEIR ENTIRETY TO THE GREATER OF (X) THE MONTHLY FEES NET2PHONE CHARGED YOU DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE THAT THE EVENTS GIVING RISE TO THE ACTION OR CLAIM FIRST OCCURRED OR (Y) TWO HUNDRED FIFTY DOLLARS ($250.00). THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, NET2PHONE WOULD NOT PROVIDE THE SITE OR THE SERVICES TO YOU. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES, AS PERMITTED BY APPLICABLE LAW.
Indemnification.To the maximum extent permitted by applicable law, You shall indemnify and hold harmless, Net2Phone, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Service, and their officers, directors, managers, employees, and shareholders (the "Indemnified Parties") from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys' fees) arising from or related to: (1) the use of or reliance upon the Service by You or any third party acting upon Your permission, knowledge, authority or direction, (2) a breach by You of these Terms of Service and/or or the Terms & Conditions contained on the Site , (3) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction, (4) Your inability to use the Service or failure or outage of the Service for any reason, including but not limited to those related to calling, "911" or other emergency responders, (5) the use of the Service in connection with Your violation of any applicable law, code, regulation, or ordinance, and/or (6) Your misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights (including patent, trademark, copyright, and trade secret rights), rights of privacy, and rights of publicity and personality.
Dispute Resolution.UNDER THIS CLAUSE YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND ARE AGREEING THAT ALL DISPUTES WILL BE DECIDED BY AN ARBITRATOR. You agree that You may only resolve disputes with Net2Phone on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. You hereby acknowledge that class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are hereby waived by You. You agree that regardless of any statute or law to the contrary, any suit arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after the earlier of: (a) when such claim or cause of action arose or (b) termination of Service to You, or be forever barred. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any conflict of law principles thereof which might require the application of the law of another jurisdiction. Any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (“Rules”). One arbitrator shall be chosen in accordance with the Rules. The Parties agree that all proceedings shall take place in the State of New Jersey, Essex County. You agree and submit to personal jurisdiction in New Jersey. Any award, order or judgment pursuant to such arbitration shall be deemed final and binding and may be enforced in any court of competent jurisdiction.
Force Majeure.. Net2Phone shall be excused from any delay or failure in performance hereunder caused by reason of occurrence beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, fiber cuts, actions or inactions of third party providers or suppliers, riots, sabotage, war, government requirements, or other events that are beyond Net2Phone's reasonable control.
Assignment.Net2Phone may assign these Terms of Service and any of its rights and obligations hereunder at any time. You may not transfer or assign these Terms of Service or any of Your rights or obligations under these Terms of Service. Any purported transfer or assignment on Your part in violation of this section is void. Subject to the foregoing, these Terms of Service shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
No waiver of rights.Failure of either party at any time to require the other party’s performance of any obligation under these Terms of Service shall not affect the right to require performance of such obligation. Any waiver by either party of any breach of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver of modification of any right under these Terms of Service.
Severability. In the event any portion of these Terms of Service may be determined by any governmental body having jurisdiction, or by any court of competent jurisdiction, to be unenforceable, the balance of these Terms of Service shall be severed therefrom and shall remain in full force and effect.
Publicity Rights. You agree that Net2Phone may identify You as a user of the Service in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising; newsletters, mailings, tradeshows, other promotional materials, on Net2Phone's website, or any other third-party website where Net2Phone or its designated agents may promote the Service. You hereby grant Net2Phone and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
Interpretation.These Terms of Service, including any documents incorporated herein, constitute the entire agreement between You and Net2Phone with respect to the Service and supersede all prior or contemporaneous understandings regarding such subject matter. Nothing in these Terms of Service shall be deemed or construed to constitute or create employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties hereto. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Miscellaneous.This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (1) deemed for all purposes to be a "writing" or "in writing," to comply with all statutory, contractual, and other legal requirements for a writing; (2) legally enforceable as a signed writing; and (3) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.