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This agreement ("Agreement") is between
8x8, Inc. ("8x8") and an end user ("End User") of the Packet8 MobileTalk Voice over
IP (“VoIP”) Service ("Packet8 MobileTalk"). Any Packet8 MobileTalk services or products
("Services") provided by 8x8 to End User shall be governed by the terms and conditions
herein. By downloading the Packet8 MobileTalk software
(“Software”) and purchasing the Services, END USER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between
End User and 8x8 by, among other things, requiring (1) MANDATORY ARBITRATION OF
DISPUTES; and (2) LIMITING 8x8's LIABILITY UNDER THE AGREEMENT. End User acknowledges that they are of legal
age to enter into this Agreement. Services
may be provided by 8x8, Inc., Visit, Inc., or an affiliate.
Services are only provided where authorized.
1. TERMS AND CONDITIONS.
The terms and conditions stated herein are in lieu of and replace any and all terms
and conditions set forth in any documents issued by End User, including, without
limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING
TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE HEREBY
OBJECTED TO BY 8X8, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE
MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON 8X8. No
waiver or amendment to this contract or these terms and conditions shall be binding
on 8x8 unless made in writing expressly stating that it is such a waiver or amendment
and signed by an Officer of 8x8.
2. TERM. The term of this Agreement ("Term") begins on the date that End
User purchases Services and continues for the duration of the service period as
defined by the service plan that is selected by End User ("Plan"). Subsequent
terms of this Agreement automatically renew on a monthly basis without further
action by End User unless End User gives 8x8 written notice of non-renewal at
least thirty (30) days before the end of the monthly term in which the notice
is given. In the event that the user does not use the service for 90
consecutive days, the service will terminate and any renewal of the service may
result in a charge at the then going rate for the service. End User is
purchasing the Service for full monthly terms, meaning that if End User
attempts to terminate Service prior to the end of a monthly term, End User will
be responsible for the full month's charges to the end of the then-current
term, including, without limitation, unbilled charges plus any applicable
disconnect fee, all of which immediately become due and payable. Expiration of
the term or termination of the Services does not excuse the End User from
paying all unpaid, accrued charges due in relation to the Agreement hereunder.
3.
911 & SERVICE LIMITATIONS. The Services do not provide
911 services. 911 calls will continue
to be routed by your existing mobile provider.
4. BILLING, CHARGES
AND PAYMENT.
4.1. PAYMENT. Upon purchase
of the Service, End User must provide 8x8 with a valid credit card number from an
issuer that is accepted by 8x8. End User authorizes 8x8 to charge the credit card
number provided by End User ("Credit Card") for all charges arising from End User's
use of the Services. End User agrees to notify 8x8 of any change to the credit card
information including, but not limited to, changes in account number, expiration
date or billing address. 8x8 shall not be responsible for any charges made by the
Credit Card issuer to End User's Credit Card account for exceeding credit limit,
insufficient funds or other reasons.
4.2. CREDIT TERMS. All Services
provided to End User and covered by the Agreement shall at all times be subject
to credit approval or review by 8x8. End User will provide such credit information
or assurance as is requested by 8x8 at any time. 8x8, in its sole discretion and
judgment, may discontinue credit at any time without notice or require a deposit. The services may be terminated without
notice if fraud is suspected.
4.3. BILLING. 8x8 will provide
End User with a monthly on-line billing statement for the Services and bill all
charges invoiced to End User's account to the Credit Card. Such charges shall include
activation fees, monthly service fees, shipping charges, disconnection fees, Software
charges, toll charges, taxes and any other applicable charges. Monthly service fees
are paid in advance of each month's service; toll charges and any other applicable
charges are billed subsequent to the end of each month's service. 8x8 reserves the
right to charge the Credit Card for cumulative charges due, if at any time End User's
out-of-plan toll minutes for the current month exceed ten dollars ($10.00). Billing
for monthly service fees commences upon purchase of the Services on the web site,
and the first month's monthly service fee shall be prorated to take into account
any partial month that may occur as the result of the date monthly service fees
are initiated.
4.4. LATE/NON-PAYMENT. If any
charges for the Services are due but unpaid for any reason including, but not limited
to, non-payment or declined Credit Card charges, 8x8 may suspend or terminate the
Services and all accrued charges shall be immediately due, plus a late fee of the
lesser of 1.5% per month or the maximum allowed by law accrued from the date of
invoice until payment in full is received by 8x8. If charges cannot be processed
to the Credit Card and the End User’s account is suspended, End User will be charged
a fee of ten dollars ($10.00) to activate the account. No suspension or termination
of the Services or of this Agreement shall relieve End User from paying any amounts
due hereunder.
4.5. TAXES. Prices for the
Services do not include any customs duties, sales, use, value added, excise, federal,
state, local, public utility, universal service or other similar taxes. All such
taxes shall be paid by End User and will be added to any amounts otherwise charged
to End User unless End User provides 8x8 with an appropriate exemption certificate.
If any amounts paid for the Services by End User are refunded by 8x8, applicable
taxes may not be refundable.
4.6. TRIAL PERIOD. 8x8 offers
a thirty (30) day trial period ("Trial Period") to new End Users for their first
Packet8 MobileTalk account. The Trial Period commences upon the purchase of Services
by End User on the Packet8 web site (http://www.packet8.net) or purchase of Software
from a retailer. If End User is not satisfied with the Services during the Trial
Period, End User may obtain a refund of the Software cost, activation fee, and monthly
service fee. Applicable taxes will be refunded to the extent allowed by law. Charges
for calling minutes will not be refunded. Shipping charges will not be refunded.
To obtain a refund, End User must notify 8x8 within thirty (30) days of purchase
of the Services on the web site and obtain a return material authorization number
from 8x8. Retail customers will be required to return the Software to the place
of purchase within thirty (30) days (or such shorter period as set forth in the
retail outlet’s return policy) of purchase to receive any refund.
4.7. RATE CHANGES. 8x8 may
change the prices for the Services and toll charges from time to time. 8x8 may change
prices, plans, taxes or fees without any advance notice. In the event of a change
in prices or toll charges, 8x8 will post such changed rates to the web site currently
located at http://www.Packet8.net. International
toll calling rates are updated monthly on the first of each month and no other notice
shall be provided for changes to international toll calling rates.
4.8. CREDITS. End User acknowledges and agrees
that the Services are provided "as is, where is." Credit allowances for interruption
of the Services shall not be provided.
4.9. DISCOUNTS. From time to time in its sole
discretion, 8x8 may offer promotions or discounts of activation or other fees. Any
promotion or discount codes must be entered by End User upon purchase of the Services.
End User shall not be entitled to a subsequent credit for such promotions or discounts,
if not requested at the time of account creation or change of service.
4.10. BILLING DISPUTES. End User must
dispute any charges for the Services in writing within thirty (30) days of the date
of the charge by 8x8 or End User waives any objection and further recourse. Written
statements disputing charges must be sent to:
Billing Department
8x8, Inc.
3151 Jay Street
Santa Clara, CA 95054
-or-
claims@Packet8.net
5. TOLL CHARGES.
Every call to or from equipment using the Services that originate or terminate in
the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is
subject to the then applicable toll charges that are associated with the Plan. Calls
to a phone number outside the
United States
to a non-Packet8 phone number will be charged at the current rates published on
the Packet8 web site at http://www.packet8.net/international_services/.
The duration of each call is to be calculated in one minute increments and rounded
up to the nearest one minute increment for any fraction of minutes used. If the
computed charge for a call includes a fraction of a cent, the fraction is rounded
up to the nearest whole cent. If the computed charges for taxes and surcharges include
a fraction of a cent, the fraction is rounded up to the nearest whole cent. When
End User dials an International PSTN phone number, charges may apply regardless
of whether the party on the other line answers the call. Calls made by an End User
to an International mobile, rather than landline, or information services or premium
rate telephone number may result in higher toll charges. These toll charges are
listed on the Packet8.net website.
6. LOST, STOLEN, ALTERED
OR BROKEN EQUIPMENT. End User shall not modify the Software in any way without
the express written permission of 8x8. End User shall not use the Software except
with the Services provided hereunder. Except as otherwise provided for hereunder,
End User is responsible for all lost, stolen or broken equipment and may be required
to purchase replacement Software to continue service. End User shall immediately
notify 8x8 of any lost or stolen equipment and shall cooperate with 8x8 in all reasonable
aspects to eliminate actual or potential unauthorized use of the equipment. At 8x8's
sole option, failure to report lost or stolen equipment in a timely manner will
cause End User to be responsible for all service fees accrued until the time that
8x8 is informed of the loss or theft and can effect a termination of the Services.
7. PROHIBITED USES.
Any use of the Services or any other action that causes a disruption in the network
integrity of 8x8 or its vendors, whether directly or indirectly, is strictly prohibited
and could result in termination of the Services at the sole discretion of 8x8. End
User understands that neither 8x8 nor its vendors are responsible for the content
of the transmissions that may pass through the Internet and/or the Services. End
User agrees that it will NOT use the Services in ways that violate laws (including
but not limited to laws prohibiting transmission of unsolicited advertisements),
infringe the rights of others, or interfere with the users, services, or equipment
of the network. End User agrees and represents that it is purchasing the Services
and/or the Software for its own internal use only, and shall not resell, transfer
or make a charge for the Services or the Equipment without the advance express written
permission of 8x8.
8.
CELLULAR AIR TIME / TOLL CHARGES / ROAMING FEES / INTERNATIONAL USE.
End User acknowledges and understands that Packet8 MobileTalk calls are connected
to the Packet8 network via a regular cellular phone call you’re your existing mobile
service provider’s network. All charges,
air time, toll charges, roaming fees otherwise charged by your mobile phone service
provider will be collected, in addition to the toll charges owed to Packet8. Use of Packet8 MobileTalk outside of
the
United States
will incur international roaming and toll charges from your mobile phone service
provider according to your current plan in addition to the Packet8 MobileTalk toll
charges.
9.
CHANGES TO THE AGREEMENT, SERVICES OR PLAN. 8x8 reserves the
right to make changes to the terms and conditions of this Agreement, the Services
and/or the Plan (a "Change of Service"). In the event of a Change of Service, 8x8
will post to the Web Site currently located at
http://www.Packet8.net/terms/.
Notice will be considered received by End Users and such changes will become binding
to End Users, on the date the changes are posted to the Web Site ("Change Date"),
and no additional notice will be required. If End User does not send 8x8 notification
of their desire to terminate this agreement or uses the Service after the Change
Date, End User is deemed to have accepted and consented to the change of terms and
conditions of the Service. If End User does not consent to the change of service
and terminates this agreement, End User will be responsible for any sums due hereunder
in addition to any applicable Disconnection Fee. End User may request a Plan change
at anytime, subject to any applicable change of service fee and additional terms
and conditions. The Plan change will take effect in the first month after the Plan
is changed. In no case will an activation fee be credited after thirty (30)
days from the initial purchase of the Services for a Plan change or cancellation.
For a Plan change to a plan that requires a purchase of the Equipment, an equipment
charge will apply.
10. TERMINATION. End User agrees
to provide 8x8 with thirty (30) days notice of termination. End User shall be responsible
for the full monthly service fee for the month during which the notice of termination
of service is provided to 8x8. 8x8 reserves the right, at its sole discretion, to
suspend, terminate or change the Services without advance notice for any reason,
including without limitation, misuse of the Services in any way, End User's breach
of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud
or other activity by End User that adversely affects the Services, 8x8, 8x8's network
or other End Users' use of the Services. 8x8 reserves the right to determine, at
its sole discretion, what constitutes misuse of the Services and End User agrees
that 8x8's determination is final and binding on End User. 8x8 may require an activation
fee to change or resume a terminated or suspended account.
11. PRIVACY. Packet8 MobileTalk
may utilize the public Internet and third party networks to provide fax, voice and
video communication services. Accordingly, 8x8 cannot guarantee the security of
fax, voice and video communications of End User. 8x8 is committed to respecting
an End User's privacy. Once End User chooses to provide personally identifiable
information, it will only be used in the context of the End User's relationship
with 8x8. 8x8 will not sell, rent, or lease End Users' personally identifiable information
to others. Unless required by law or subpoena or if End User's prior permission
is obtained, 8x8 will only share the personal data End User provides with other
8x8 entities and/or business partners that are acting on 8x8's behalf to complete
the activities described herein. Such 8x8 entities and/or national or international
business partners are governed by 8x8's privacy policies with respect to the use
of this data. 8x8 is required to file numerous reports with different administrative
bodies. As such, 8x8 may provide aggregate statistics about customers, sales and
traffic patterns. None of these reports or statistics will include personally identifiable
information. However, 8x8 reserves the right to use personally identifiable information
to investigate and help prevent potentially unlawful activity that threatens either
8x8 or any company affiliated with 8x8. Moreover, upon the appropriate request of
a government agency, law enforcement agency, court or as otherwise required by law,
8x8 may disclose personally identifiable information.
12. TECHNICAL SUPPORT. 8x8
provides technical support to End Users via telephone and e-mail for the Services
and Software provided hereunder. Support for other applications and uses is not
provided or implied.
13.
BREACH. In the event of End User's breach of the terms of the
Agreement, including without limitation, failure to pay any sum due hereunder, End
User shall reimburse 8x8 for all attorney, court, collection and other costs incurred
by 8x8 in the enforcement of 8x8's rights hereunder and 8x8 may keep any deposits
or other payments made by End User.
14.
INDEMNIFICATION. End User agrees to defend, indemnify and hold
8x8, its affiliates and its vendors harmless from any claims or damages relating
to this Agreement.
15. DISCLAIMER OF CONSEQUENTIAL
DAMAGES. IN NO EVENT SHALL 8X8 OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT
LIMITED TO LOSS OF LIFE, INJURY, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING
OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED
HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE
OF 8X8 OR ITS VENDORS OR OTHERWISE.
16. WARRANTY AND LIABILITY LIMITATIONS.
8X8 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER
8X8 NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO 8X8'S OR END USER'S
TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION,
THEFT OR DESTRUCTION OF END USER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION
THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF
WHETHER SUCH DAMAGE OCCURS AS A RESULT OF 8X8'S OR ITS VENDORS' NEGLIGENCE. ANY
CLAIM AGAINST 8X8 MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS
FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND 8X8 HAS NO LIABILITY THEREAFTER.
8X8'S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. 8X8 MAY ELECT
TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER
ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES
RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION,
OR REPAIRS BY ANYONE OTHER THAN 8X8. IN NO EVENT SHALL 8X8'S TOTAL LIABILITY HEREUNDER
EXCEED THE AMOUNTS PAID BY END USER TO 8X8 IN THE PRIOR TWELVE (12) MONTHS FROM
DATE OF CLAIM.
17. EXPORT COMPLIANCE. End
User agrees to comply with
U. S.
export laws concerning the transmission of technical data and other regulated materials
via the Services. End User agrees to comply with applicable local, state and federal
regulations governing the locality in which the Equipment and Services are used.
18. PHONE NUMBERS AND WEB PORTAL
DISCONTINUANCE. Upon expiration, cancellation or termination of the Services,
End User shall relinquish and discontinue use of any Numbers, voice mail access
numbers and/or web portals assigned to End User by 8x8 or its vendors.
19.
SOFTWARE COPYRIGHT. The Software and any additional software
used by 8x8 to provide the Services are protected by copyright law and international
treaty provisions. End User may not copy the Software or any portion of it. Except to
the extent permitted by applicable law, you must not disassemble, de-compile, reverse
engineer or otherwise attempt to replicate the Software.
20. SURVIVAL. The provisions
of section 13, 14, 15, 16, 19, 20, 22, and 23 shall survive any termination of the
Agreement.
21. NOTICES. 8x8 communicates
with End Users primarily via email. Notices to End User shall be sent to the email
address specified by End User at the time of registration for the Services or as
subsequently specified by End User ("Email Address"). End User is responsible for
notifying 8x8 of any Email Address changes. End User agrees that sending a message
to the Email Address is the agreed upon means of providing notification. Email is
used to communicate important information about the Services, billing, changes to
the Services and other information. The information is time-sensitive in nature.
It is required that End User read any email sent to the Email Address in a timely
manner in order to avoid any potential interruption in the Services provided hereunder.
22. FORCE MAJEURE (EVENTS BEYOND
OUR CONTROL). 8x8 shall not be liable for any delay in performance directly
or indirectly caused by or resulting from acts of God, fire, flood, accident, riot,
war, government intervention, embargoes, strikes, labor difficulties, equipment
failure, late delivery by suppliers or other difficulties of 8x8 as may occur in
spite of 8x8's best efforts.
23. GOVERNING LAW / RESOLUTION
OF DISPUTES.
23.1.
Mandatory Arbitration. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS
THAT, EXCEPT AS NOTED BELOW, END USER AND 8x8 WILL ARBITRATE ANY DISPUTES OR CLAIMS
IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR THE PROVISION OF SERVICES
OR PRODUCTS TO END USER, INCLUDING ANY BILLING DISPUTES (“CLAIM”). CLAIMS
SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION
ASSOCIATION (“AAA”). This agreement to arbitrate also requires End User to arbitrate
claims against other parties relating to Services or Products provided or billed
to End User if Claims are asserted against 8x8 in the same proceeding. ARBITRATION
WILL BE CONDUCTED UNDER THE AAA’S PUBLISHED COMMERCIAL ARBITRATION RULES AND SUPPLEMENTAL
PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARE AVAILABLE BY CALLING THE AAA
AT 800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org. The AAA has a fee schedule
for arbitrations. End User will pay the published share of the arbitrator’s
fees and administrative expenses (“Fees and Expenses”) except that: (a) for Claims
less than $20, 8x8 will pay all Fees and Expenses; and (b) for Claims between $25
and $1,000, End User will pay only $20 in Fees and Expenses, or any lesser amount
as provided under AAA’s Supplemental Procedures for Consumer-Related Disputes. End
User and 8x8 agree to bear their own other fees, costs, and expenses, including
those for any attorneys, experts, and witnesses. The AAA Supplemental Procedures
for Consumer-Related Disputes provide that unless a hearing is requested, disputes
will be resolved based on written submissions and no personal appearance is required.
If End User requests an arbitration hearing, that hearing will take place either
telephonically or in
San Jose, California
. As a limited exception to the agreement to arbitrate, End User and 8x8 agree that:
(a) End User may file Claims in small claims court in Santa Clara County (San Jose),
California, if the Claims qualify for hearing by such court; (b) if End User fails
to timely pay amounts due, 8x8 may assign the account for collection, and the collection
agency may pursue in court claims limited strictly to the collection of the past
due debt and any interest or cost of collection permitted by law or the Agreement;
and (c) any Claim filed as a class action is not subject to arbitration but instead
must be filed in the California Superior Court, County of Santa Clara (San Jose)
or in the United States District Court for the Northern District of California.
23.2.
Prefiling Notice of Claim. BEFORE INSTITUTING ARBITRATION OR SUIT, END
USER AGREES TO PROVIDE 8x8 WITH AN
OPPORTUNITY
TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO 8x8 AT THE
ADDRESS BELOW. IF 8x8 IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS
OF RECEIPT OF NOTICE, THEN END USER OR 8x8 MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED
IN SECTION 28.1. All claim notices should be sent to:
Director of Customer Service
8x8, Inc.
3151 Jay Street
Santa Clara, CA 95054
-or-
claims@Packet8.net
23.3. Governing Law. The Agreement
and the relationship between End User and 8x8 shall be governed by the laws of the
State of
California
without regard to its conflict of law provisions. To the extent court action is
initiated to enforce an arbitration award or for any other reason consistent with
Section 28.1, End User and 8x8 agree to submit to the personal and exclusive jurisdiction
of the courts within the state of
California
, to the extent possible in
Santa Clara County
, and waive any objection as to venue or inconvenient forum. The failure of 8x8
to exercise or enforce any right or provision of the Agreement shall not constitute
a waiver of such right or provision. If any provision of the Agreement is found
by a court of competent jurisdiction to be invalid, the parties nevertheless agree
that the court should endeavor to give effect to the parties' intentions as reflected
in the provision, and the other provisions of the Agreement remain in full force
and effect. End User agrees that regardless of any statute or law to the contrary,
any claim or cause of action arising out of or related to use of the Service or
the Agreement must be filed within one (1) year after such claim or cause of action
arose or be forever barred.
24. ENTIRE AGREEMENT. The terms
and conditions of this Agreement, along with the rates posted to the web site currently
located at http://www.Packet8.net, constitute the entire agreement with regard to
this sale and expressly supersede and replace any prior or contemporaneous agreements,
written or oral, relating to the Services. This agreement shall be binding upon
the heirs, successors, and assigns of 8x8 and End User.
Revised 10/15/2007 Ver 1.0
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