Last Updated: January 24, 2012    

 

KOOLTEL AMERICA TERMS OF SERVICE    

 

PLEASE READ THESE TERMS OF SERVICE CAREFULLY.  THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS A DISPUTE RESOLUTION CLAUSE IN SECTION 17.

 

1. INTRODUCTION.

By signing up for the services offered by Kool Telecom Ltd. (“KoolTel America,” “we,” “us” or “our”) or using our website located at www.kooltelamerica.com (the “Site”), you (and any and all Account Users, as defined below) fully and unconditionally agree to, and shall be bound by, these Terms of Service, the KoolTel America Privacy Policy (“Privacy Policy”) and any and all other applicable KoolTel America operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”).  All references to “you” in the Agreement shall apply equally to your Account Users.  If you do not agree to the Agreement in its entirety, you are not permitted to sign up for our services or visit the Site.  We may revise the Agreement at any time by updating this page; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class actions provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. You are responsible for checking the Site frequently in order to remain abreast of any and all amendments and/or changes to the Agreement. Your continued use of the Site and/or services after notice is given shall constitute your binding and legally enforceable agreement to such changes (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable). If you do not wish to accept any such change, then you must terminate the Agreement and cease using the Site and/or services. Unless explicitly stated otherwise, any future offer(s) made available to you on the Site that augment(s) or otherwise enhance(s) the current features of the Site and/or services shall be subject to the Agreement.   

   

2. NO 911 OR EMERGENCY SERVICE.

You acknowledge and understand that the KoolTel America service does NOT currently allow you to access any 911 or similar emergency services (no traditional 911, E911 or similar access to emergency services). Our service is not a traditional telephone service, nor is it a replacement for your primary telephone line. Our service differs from traditional telephone service in several important ways, including the fact that our service does not provide 911 access or access to emergency services.

 

You should always have an alternative means of accessing 911 or similar emergency services. You agree to make alternative arrangements to enable you to access 911 or similar emergency services and to inform anyone using the KoolTel America service that it is not possible to reach 911 or emergency services via the KoolTel America service. Please inform any and all other individuals who use your KoolTel America account (“Account Users”) to access the KoolTel America service that the Account Users must access these numbers through a traditional landline or mobile phone.

 

3. MONTHLY PAYMENT FOR THE SERVICE

Each month, where you opt to pay for the service either: (a) with one of the major credit cards that we accept (“Active Credit Card”); or (b) by allowing us to charge you for the service on your monthly local telephone bill (“LEC Bill”), you will be billed Twenty-Two Dollars and Ninety-Five Cents ($22.95) for the service (the “LEC/CC Monthly Fee”). For new customers that sign up on or after September 15, 2009, and opt to pay with their Active Credit Card or LEC Bill, the Monthly Fee will be Seventeen Dollars and Seventy-Six Cents ($17.76) for the service. Where you opt to pay for the service by allowing us to charge you for the service on your monthly mobile carrier (“Mobile Carrier”) bill (“Mobile Bill” and, together with the Active Credit Card and LEC Bill, the “Payment Method”), and upon entering the confirmation PIN number on the PIN submit page on the Site, a charge of Fourteen Dollars and Ninety-Five Cents ($14.95) will be added to your Mobile Carrier bill, or deducted from your prepaid Mobile Carrier account, as applicable, each month until cancelled (“Mobile Fees” and, together with the LEC/CC Monthly Fees, the “Fees”).

 

The Fees are billed one (1) month in advance. Your first charge for the Fees will be processed immediately. Your chosen Payment Method will subsequently be charged the Fees on or about the same day of each month. Please be advised that we are not affiliated with your local telephone company, Mobile Carrier or Active Credit Card company. The Fees will appear on your local telephone bill (on the OAN/ESBI bill page), Mobile Carrier bill or Active Credit Card statement as being billed on behalf of “KoolTel America™” or “Kool Telecom Ltd.”

 

You agree that all such Fees may be automatically applied to your LEC Bill, Mobile Bill or Active Credit Card, as applicable, and that you have the authority to authorize such billing. You acknowledge and agree that KoolTel America will not obtain additional authorization from you for each monthly installment of the Fees charged to your Active Credit Card, Mobile Bill or LEC Bill, as applicable. Every time that you use the services, you re-affirm that KoolTel America is authorized to charge your Active Credit Card, Mobile Bill or LEC Bill, as applicable. You shall be responsible for paying any and all applicable sales tax (if any) due to all taxing authorities arising from, or in connection with, your use of the services. All Fees are payable in United States currency.

 

 

 

We reserve the right to change our pricing and/or billing practices, in our discretion. We will provide you with notice of any such change, to the e-mail address in your Account Information. Your failure to use the Site or service does not constitute a basis for your refusal to pay the monthly charges. Non-usage of the service does not entitle you to a credit for, or refund of, any portion of a payment made to us.

 

KoolTel America’s authorization to provide and bill for the services is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency. KoolTel America’s reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively.  Both laws specifically preempt all state laws that recognize only paper and handwritten signatures. 

   

4. RESCISSION PERIOD

If you choose to pay for the service through charges on your local telephone bill, then, if you cancel your service account within seven (7) days from the date and time displayed on your welcome e-mail (the “Rescission Period”) by calling us at 888-898-0850 or sending an e-mail to our support group at support@KoolTelAmerica.com, we will not charge any fee to your telephone bill, and your account will be cancelled, effective immediately. If you do not cancel within the Rescission Period, you will be billed the Fees as described under “Payment for the Service,” above, until such time that you cancel, or we terminate, your account. See below for how to cancel after the Rescission Period.

   

5. CANCELLATION/TERMINATION 

You may cancel the service at any time.  To do so, call us at 888-898-0850 or send an e-mail to us at support@KoolTelAmerica.com.  If you cancel by phone, your cancellation will be effective immediately.  If you cancel by e-mail, it will be effective within twenty-four (24) hours of the time that you send the subject e-mail.  If you cancel for any reason, you will lose all use of, and access to, the service.

 

Our Right to Disconnect.

 

We reserve the right in our sole discretion to suspend, terminate or restrict your use of the Site and/or the service, without notice, for any or no reason, and without liability to you or any third party.  We also reserve the right to discontinue service generally or in your area at any time.  In addition, we may discontinue service for non-payment of charges due by giving you notice of the amount due and at least thirty (30) days to provide full payment.  

 

PLEASE NOTE THAT, IF YOU CANCEL YOUR ACCOUNT OR IF WE TERMINATE IT, WE WILL NOT PROVIDE A REFUND OR CREDIT FOR ANY PARTIAL MONTH SERVICE PERIOD.  NOR WILL WE PROVIDE A REFUND OF ANY FEES PAID UP TO THE DATE OF CANCELLATION OR TERMINATION.

 

At this time, we do not offer the number transfer or portability on service disconnection.

 

6. SERVICE/REGISTRATION/REQUIREMENTS

You must be: (a) at least eighteen (18) years of age; (b) the age of majority applicable in your jurisdiction if the age of majority is greater than eighteen (18) years of age; and (c) a legal resident of the United States to use the Site and/or sign up for KoolTel America’s services.  We reserve the right to deny an account for any reason or no reason, in our sole and exclusive discretion.  You acknowledge and agree that you will be fully liable for all acts and/or omissions of Account Users, including any breach of the Agreement, and/or any other activity that occurs by and through your account including, without limitation, any and all charges incurred thereby.

 

The registration data that you must supply on the Site in order to obtain an account includes, without limitation: (a) your full name; (b) mailing address; (c) e-mail address; (d) billing telephone number; (e) date of birth; (f) gender; (g) credit or debit card information (where applicable); (h) a security question and answer (choice of your city of birth, mother’s maiden name, favorite food or the last four digits of your Social Security Number); and/or (i) any other information requested on the applicable form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data and to update your Registration Data as necessary to maintain it in an up-to-date and accurate fashion.

 

KoolTel America offers a service (which includes a software component that shall be deemed a part of the services for purposes of the Agreement) that enables users to communicate with other users using Voice over Internet Protocol (“VoIP”).  KoolTel America’s service users may make and receive unlimited calls to or from other users of the KoolTel America service.  KoolTel America users may make unlimited calls to any ordinary telephone number in the U.S. or Canada.  Inbound calls from ordinary telephone numbers will be routed to a landline or wireless number that you designate.  In addition, when you sign up, you will receive the following features and benefits:  (i) FindMe or FollowMe call routing; (ii) caller ID; (iii) voice mail to email; (4) Call Quick (call your friends and family with the touch of one (1) button); and (iv) three (3) call forwarding options. 

 

Five Hundred Minute Promotion

Where KoolTel America offers the “Five Hundred Minute” promotion to you upon your registration as a customer of the service, you will receive a five hundred (500)-minute calling card that you can use with your primary phone service.  These services are subject to change at any time in our sole discretion.  For a more detailed description of these services and the five hundred (500)-minute phone card offer, please visit the Site.  We reserve the right at any time to modify or discontinue, temporarily or permanently, the Site, the services and/or any offer, with or without notice to you, and without liability to you or any third party.

 

Free Two Thousand Minute Promotion for Calls to the Continental North America

Where KoolTel America offers the “Two Thousand Minute” promotion to you prior to your registration as a paying customer, but upon acceptance of the Agreement and downloading of the applicable software, you will receive either: two thousand (2,000) minutes of free outbound calling anywhere in continental North America (excluding area code 867); (b) Two Dollars ($2.00) of outbound calling (pursuant to the terms of the service contained herein) to any world destination; or (c) any combination of (a) and (b) depending on your calling patterns, as determined by KoolTel America in its sole and exclusive discretion.  The minutes and pricing in this offer may only be used for a period of ten (10) days from the day that you download the applicable software, regardless of how many of the two thousand (2,000) minutes you have actually used at the conclusion of that ten (10) day period.  The minutes, rates, and duration of the aforementioned offer are subject to change at any time in our sole discretion.  We reserve the right at any time to modify or discontinue, temporarily or permanently, the Site, the services and/or any offer, with or without notice to you, and without liability to you or any third party.

 

Service Distinctions.

We provide our service on a best efforts basis. Our service is subject to different regulatory treatment than a telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies. In addition, this treatment may affect your rights to privacy in your communications or the government’s right to monitor your communications.  Please see Section 8.2 below and our Privacy Policy for more information.  Events beyond our control may affect our service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service.

 

Residential Use of Service.

If you subscribe to our services, we provide you with service solely for residential use.

 

Inconsistent Use.

If you use the service in a way that is inconsistent with the normal use for the service or applicable service plan, you will be required to pay the rates for the service or plan that would apply to the way you used the service.

 

No 0+ or Operator Assisted Calling.  May Not Support x11 Calling.

Our service does not support 0+ or operator assisted calling including, without limitation, collect calls, third party billing calls, 900 number calls or calling card calls. Our service may not support 311, 511 and other x11 services in one or more service areas. Our service does not support specified dialing such as 911 and 411, which are discussed in detail elsewhere in these Terms of Service.

 

No Directory Listing.

The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers that you transfer from your local phone company may be listed.

 

Directory Calls (411).

This service is not available at this time.

 

Payphone-Originated Calls.

You will not be able to use any KoolTel America calling cards from a payphone.  

 

Incompatibility With Other Services.

 

Non-Voice Equipment Limitations.

You acknowledge that our service may not be compatible with all non-voice communications equipment including, but not limited to, home security systems, medical monitoring equipment, satellite television systems and computer modems. You waive any claim against KoolTel America for interference with or disruption of these services and equipment.

 

Certain Broadband, Cable Modem and Other Services.

There may also be other technologies, software, hardware, products and/or services with which our service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using our service. We do not warrant that our services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our service with any particular broadband service.

 

7. CUSTOMER SERVICE.

We offer varying types and levels of customer service depending on a number of factors, including the particular service you are using and the problems you are experiencing. For more information on our customer service, please review the FAQs section of the Site.  We assume no obligation to provide support services for any third party products or services, or for problems with our service caused by third party products or services. Unless you have entered into a separate services agreement with us, we may change the customer service options at any time.

   

8. YOUR CONDUCT; PROHIBITED USES 

 

 8.1 Lawful and appropriate purposes only.

You may use our service, including the software that we provide for your use of the service, only for lawful, proper and appropriate purposes. You and any content transmitted by and through the service must comply at all times with all laws, regulations and written and electronic instructions for using our service and the software.  You may not use our service or the software in any way that is illegal, improper or inappropriate.  Without limiting the generality of the foregoing, you agree that you will not impersonate any other person while using the service or use the service for:  (a) auto-dialing; (b) continuous or extensive call forwarding; (c) telemarketing, charitable solicitation, political solicitation or polling; (d) fax or voicemail broadcasting or blasting; (e) sending bulk unsolicited messages; (f) using robots, data mining techniques or other automated software or programs to catalog, download, store or otherwise reproduce or distribute information from the service or using any automated means to manipulate the service; (g) violating any third party’s intellectual property or personal rights; or (h) exceeding your permitted access to the service.  You further agree that you will not use the service in connection with any communication or behavior that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or similarly unlawful or inappropriate.  You agree that you will not tamper with the software, and you will use it only in connection with the authorized use of the service.

 

 8.2 Monitoring.

We may monitor the use of the service for violations of the Agreement. We may block all communications, suspend your account and/or terminate your account if we suspect a violation, or if we think it necessary in order to protect our service, or KoolTel America, its parent, affiliates, directors, officers, agents, employees or any other person from harm.  We do not monitor the content of communications.

 

 8.3 Use of Service and Software by Customers Outside the United States.

Although we permit you to use our service as you travel, the services are only offered and supported in the United States. Our service is designed to work generally with unencumbered high-speed internet connections. However, if your ISP or broadband service provider places restrictions on using VoIP services, we do not claim that they will allow you to use our service. You will be solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service because of your use of our service.

 

 8.4 No Transfer of Service.

You may not resell or transfer the service (or the software included therewith) or provide a telephone service to anyone else by using your KoolTel America service account or features of the KoolTel America service without first getting our written consent.

 

 8.5 No Alterations or Tampering.

If you copy or alter or have someone else copy or alter the software in any way that facilitates a compromise of your account, you are responsible for any charges that result. You may not attempt to hack or otherwise disrupt our service or make any use of our service that is inconsistent with its intended purpose.

 

 8.6 Theft of Service.

You may not use or obtain our service in any manner that avoids KoolTel America policies and procedures, including an illegal or improper manner. You must notify us immediately at 1-888-898-0850 or http://www.kooltelamerica.com/contact.php if your software is stolen or if you believe that your account is being accessed without your permission, fraudulently used or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of your account. If you fail to notify us in a timely manner, we may disconnect your account and levy additional charges on you. Until you notify us, you will be liable for all use of your account.

 

 8.7 You agree to maintain the confidentiality of your user ID and password associated with your account, and you shall be responsible for all use of the Site and the service accessed through your account. 

 

9. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY. 

 

 9.1 No Warranties on Service or Software.

THE SITE, SERVICES AND SOFTWARE ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, KOOLTEL AMERICA MAKES NO WARRANTY THAT: (A) THE SITE, SERVICES AND SOFTWARE WILL MEET YOUR REQUIREMENTS; (B) THE SITE, SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT SAME WILL NOT SUFFER ANY VOICE DEGRADATION; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES AND SOFTWARE WILL BE ACCURATE OR RELIABLE. THE SITE, SERVICES AND SOFTWARE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE, SERVICES AND SOFTWARE OR THE HARDWARE AND/OR SOFTWARE NECESSARY TO ACCESS AND USE THE SITE, SERVICES AND SOFTWARE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KOOLTEL AMERICA, THE SITE, SERVICES AND/OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

 

 9.2 No Credit Allowances for Interruption of KoolTel America Service.

We will not give you credit for any interruption of the KoolTel America service.

 

 9.3 Limitation of Liability for Emergency Calls and 911 Dialing.

We will not be liable for any delay or failure to provide service, including 911 Dialing, at any time or any interruption or degradation of voice quality.  KOOLTEL AMERICA SERVICE DOES NOT AND IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER KOOLTEL AMERICA, NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO CONTACT EMERGENCY SERVICES, AND YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.

 

 9.4 Limitation of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT KOOLTEL AMERICA SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KOOLTEL AMERICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE SITE, SERVICES AND SOFTWARE, OR ANY OTHER KOOLTEL AMERICA PRODUCT AND/OR SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION AND/OR SERVICES PURCHASED OR OBTAINED FROM THE SITE; (C) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA; AND (D) ANY MATTER RELATING TO THE SITE, SERVICES AND SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE KOOLTEL AMERICA, AND ITS SUPPLIERS, FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED HEREUNDER. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, THE MAXIMUM LIABILITY OF KOOLTEL AMERICA TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE EQUAL TO THE AMOUNTS YOU PAID, IF ANY, FOR THE SERVICES DURING THE PRIOR SIX (6) MONTH PERIOD. YOU HEREBY RELEASE KOOLTEL AMERICA FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS SET FORTH IN THIS SECTION 9.4. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND KOOLTEL AMERICA. THE SITE, SERVICES AND SOFTWARE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.

 

10. INDEMNIFICATION AND WAIVER OF CLAIMS. 

 

 10.1 Indemnification.

You shall defend, indemnify, and hold harmless KoolTel America, its officers, directors, members, employees, affiliates and agents, and any other service provider who furnishes services to you in connection with our service, from and against any and all claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, attorneys’ fees) related to or arising out of: (a) your use of the service, software and/or site; (b) the act and/or omission of any Account User; and/or (c) your breach of the Agreement.

 

 10.2Content.

You are liable for all liability that may arise from the content that is transmitted to any person by and through your account, whether or not you authorize such transmission.

 

11. PRIVACY    

Any personal information that you submit to us or that we collect through the Site including, without limitation, the Registration Data, is subject to our Privacy Policy, the terms of which are incorporated into the Agreement. 

 

KoolTel America service uses, in whole or in part, the public Internet and third party networks to transmit voice and other communications. KoolTel America is not liable for any lack of privacy which you may experience from using our service.

   

12. USE OF INFORMATION SUBMITTED    

You agree that we are free to use any comments, information or ideas contained in any communication you may send to us, without notice, compensation or acknowledgement to you, for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Site, the service or any other products or services.

 

13. THIRD-PARTY LINKS    

The Site may provide links to other Internet websites and/or resources.  Because KoolTel America has no control over such third party websites and/or resources, you hereby acknowledge and agree that KoolTel America is not responsible for the availability or contents of such third party websites and/or associated resources.  Furthermore, KoolTel America does not endorse, and is not responsible or liable for, any terms and conditions, privacy policies, content, advertising, services, products and/or such third party websites or resources, or for any damages and/or losses arising therefrom.

 

14. EXPORT CONTROLS    

You agree to comply fully with all relevant export laws and regulations of the United States including, but not limited to, the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of our service or any direct product to any destination, company, or person restricted or prohibited by U.S. export controls.

   

15. LICENSE GRANT/PROPRIETARY RIGHTS. 

 

 15.1 Subject to the terms of the Agreement, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site, services and associated software (collectively, “KoolTel Offerings”), in accordance with the Agreement. KoolTel America may terminate this license at any time for any reason. No part of the KoolTel Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. Systematic retrieval of content or other material from the KoolTel Offerings by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from KoolTel America is prohibited. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the KoolTel Offerings or any portion thereof. KoolTel America reserves any rights not explicitly granted in the Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the KoolTel Offerings. You may not take any action that imposes an unreasonable or disproportionately large load on KoolTel America infrastructure. Your right to use the KoolTel Offerings is not transferable.

 

15.2  The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the KoolTel Offerings are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by you of any part of the KoolTel Offerings is strictly prohibited. You do not acquire ownership rights in or to any content, document, software, services or other materials viewed at or through the KoolTel Offerings. The posting of information or material by and through the KoolTel Offerings does not constitute a waiver of any right in such information and/or materials.

 

16. MISCELLANEOUS LEGAL CONSIDERATIONS. 

 

16.1 Governing Law.

The law of the State of New York will govern the Agreement, as well as the relationship between you and us, except to the extent such law is preempted by or inconsistent with applicable federal law. Because the Agreement covers a transaction in interstate commerce, the Federal Arbitration Act will govern the interpretation and enforcement of the arbitration provision in Section 17.

 

16.2 No Waiver of Rights.

Our failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of the right or provision. KoolTel America reserves all of its rights at law and equity to proceed against anyone who uses its services or software illegally or improperly. All determinations by KoolTel America under the Agreement and exercise of its rights are made and done in our sole and absolute discretion.

 

16.3 Survival.

The provisions of the Agreement that by their sense and context are intended to survive the termination or expiration of the Agreement shall survive.

 

16.4 No Third Party Beneficiaries.

If you are not a party to the Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action.  The Agreement does not create any other third party beneficiary rights.

 

16.5 Entire Agreement.

The Agreement constitutes the entire agreement between you and KoolTel America. The Agreement governs your use of the Site, the software, our service, and the use of our services by the members of your household and your guests and employees. The Agreement supersedes any prior agreements between you and KoolTel America.  It also supersedes all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.

 

16.6 Severability.

If any part of the Agreement is legally declared invalid or unenforceable, all other parts of the Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of the Agreement.

 

17. DISPUTE RESOLUTION AND BINDING ARBITRATION.    

It is important that you read this entire Section 17 carefully before accepting the Agreement. This Section 17 provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.

 

Should a dispute arise concerning the service, Site, terms and conditions of the Agreement or the breach of same by any party hereto, you may commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found at [ KoolTel Initial Dispute Notice ].  We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”).  If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute, you can submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is also available on the Site at [ KoolTel Demand for Arbitration ].  For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions.  If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration.  Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction.  Nothing contained herein shall be construed to preclude any party from: (a) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (b) pursuing the matter in small claims court rather than arbitration.  Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous. 

 

To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against KoolTel America and/or its employees, officers, directors, members, representatives and/or assigns.  You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit.  You agree to pay the attorney’s fees and court costs that KoolTel America incurs in seeking such relief.  This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement.

 

18. ELECTRONIC COMMUNICATIONS.    

By subscribing to our service, you agree that we may provide to you by use of electronic communications required notices, agreements and other information concerning KoolTel America, including changes to the Agreement.

 

19. CONTACT US.

Our “Contact Us” page contains information that allows you to contact us directly with any questions or comments that you may have. If you have any questions about the Agreement or the practices of KoolTel America, please feel free to contact us at 1-888-898-0850 or at support@KoolTelAmerica.com.