Matrix Telecom, Inc. D/B/A Lingo Residential and Small Business Terms and Conditions
Matrix Telecom, Inc. offers services in conjunction with its parent company, Lingo, Inc., and is therfore referred to herein as “Lingo.” The following Residential and Small Business Terms and Conditions (referred to herein as the “Lingo Terms and Conditions” or the “Terms” or the “Agreement”) are between you, the customer (“Customer”) and Lingo. These Terms apply to Lingo’sResidentialand Small Business Services under the current brand names such as “Matrix Telecom”® “Excel”®, “VarTec Telecom”®, “Trinsic”®, “Lingo”™, “ImpactConnect”™, 10-10-818”®, 10-10-811”®, “10-10-636”®, “1010-457”™and “1010-297”™ as well as any other brand names under which we will offer services in the future.
Your Lingo Residential Services are for single-family residential non-commercial use. This means that only the account holder and residential family members may use Lingo's residential Service plans. Residential family members include your immediate family who reside in your personal residence - e.g., spouse, domestic partner, parents and/or children.Lingo’s Small Business Services are those offered to customers for use primarily with a home office or a very small business.
More specific pricing terms are also found in ourtariffs; price lists; on our various websites referenced in Section 1 below, including any Service Schedules linked thereto (collectively, the “Lingo Websites”);or in any Service Orders signed by you(all of which are incorporated into and made a part of and collectively also referred to herein as the “Terms”).
Note that, for any services that are subject to an existing Signed Contract or to a tariff or price list(“Legacy Terms”), those terms will govern the provision of your service. Please refer to that document.If there is any conflict between these Terms and the provisions of the Legacy Terms, the provisions of the Legacy Terms shall apply.
Otherwise, the following Terms will apply to your services with us (referred to herein as the “Service” or the “Services”).
1. Acceptance of Terms Accounts; Changes
For purposes of these Terms, “Customer”, "you" and "your" refer to the person or entity purchasing the Services. "We," "our," "us," refer to Lingo.
The Lingo Websites.
Lingo may, from time to time, establish and maintain individual websites (linking one or more webpages) containing descriptions for specific Services, including, descriptions relating to pricing, fees, features, limitations and FAQs. All of the Lingo Websites can be accessed by visiting the following website:
Changes.
These Terms may be changed by Lingo from time to time. If Lingo makes a change that has a material effect on your current Services, you will be provided notice of that change, in a manner consistent with the Notice provisions specified in Section 16 of these Terms.
Acceptance.
You represent that you are legally competent to enter into this agreement, that you are at least 18 years old, and that you are not aware of any disability that would prevent you from entering into this Agreement.By enrolling in, activating, using, or paying for the Services, you agree to theseTerms, (which Terms include and incorporate all contentsof Lingo Websites, tariffs, price lists andService Orders, as noted above). If you do not agree to all of the Terms,as applicable to your Services, do not use the Services, and cancel the Services immediately by calling LingoCustomer Service as specified in Section 17 below.
Binding Obligation.
By accepting these Terms, you confirm that these Terms constitute a valid and binding obligation of yours. If you are an entity, by accepting these Terms, you confirm (through your duly authorized representative) that you are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept these Terms; and you are also confirming that these Terms constitute a valid and binding obligation of your firm. All use of the Services, whether or not authorized, shall be deemed your or your entity’s use (as applicable). You are responsible for ensuring that all use of the Services complies with these Terms.
Your Lingo Account.
Upon enrollling in the Services, we will establish an account (your “Lingo Account”) through which you will obtain your Services and related information. You agree to safeguard all passwords issued in connection with your Lingo Account as specified in Section 9 below and to not permit the unauthorized use of your passwords. You agree and acknowledge that any email address or any other electronic address that you provide to Lingo is your private address and is not accessible to unauthorized third parties.You are responsible for all Services purchased, all changes requested and all other account activities generated by and through the use of your passwords and emails addresses, whether or not you authorized such activities.
No Rollover.
If you select a plan that includes an unlimited or predetermined allotment of services (for example, an unlimited or predetermined allotment of voice minutes), unless otherwise specifically provided as part of such Service plan, any unused allotment of services from one billing cycle will not carry over to the next billing cycle.
Authority.
We may assume that any person able to provide the information requested by us, in accordance with our authentication procedures, is authorized by you to receive information about and make changes to your account, including adding new Services. You authorize Lingo to provide information about and to make changes to your Service and Lingo Account, including adding new service, or changing or canceling a Service upon the direction of any such person.
Porting to Lingo.
In the event you are transferring (or “porting”) an existing phone number from another provider for use with your Lingo Service, you hereby authorize Lingo to process your order for LingoService and to notify your existing provider of your decision to switch your local, local toll, and long distance services to LingoService, and you represent that you are authorized to take this action. (Note: not all telephone numbers are eligible for porting to LingoService.)
No Resale.
Unless you have entered into a wholesale (carrier to carrier) agreement with us, resale of any LingoService is prohibited without our prior written consent and your attainment of any required regulatory approvals.
2. Outbound Dialing Options
Local.
Where Lingo serves as your local service provider, you dial the area code + the seven digits of the called party for local and long distance calls. For international calls, you dial 011 + the country code + the international number. For long distance calls, you may have the Direct Dial, Dial-Around, Contracted Dial-Around and CellConnect options noted below, depending on your Service.This wireline Service requires a subscription.
VoIP.
Where Lingo serves as your VoIP service provider, you dial the area code + the seven digits of the called party for local calls and long distance calls. For international calls, you dial 011 + country code + international number. You may have the CellConnect option as noted below, depending on your Service.This Service requires a subscription.
Direct Dial Long Distance.
Where Lingo serves as your preferred,assigned long distance company, you commence each long distance call by dialing 1+ area code + phone number (for domestic calls) or 011 + area code and/or country code+ phone number (for international calls). This wireline Service requires a subscription.
Basic Dial-Around Long Distance.
Lingo’s Basic Dial-Around Service does not require a contract or subscription. The Service is subject to the terms and conditions posted on the website of the respective Dial-Around service or that are set forth in the applicable tariff. Customers automatically agree to the terms on those websites or in those applicable tariffs by their affirmative act of using the Service.For Basic Dial-Around Service,you will dial the 7-digit access code + 1 (or +011 for international calls) + the area code (and/or + the country code for international calls) + the phone number you are calling. You can access the Dial-Around Service from mostlandline phones.Each 7-digit Dial-Around Service has different pricing and you should review the charges and fees applicable to such calls before using our Dial-Around Service. Your current preferred, assigned long distance wireline or VoIP carrier will not change and will remain activated and available to you for 1+ (or 011+) Direct Dialing.
Contracted Dial-Around Long Distance.
Lingo’sContracted Dial-Around Servicerequires a contract or subscription. The Service is subject to the terms and conditions posted on the website of the respective Dial-Around service or that are set forth in the applicable tariff. Dial as you would under the Basic Dial-Around Service.Your current preferred, assigned long distance wireline carrier will not change and will remain activated and available to you for 1+ (or 011+) Direct Dialing.
CellConnect.
Some Lingo Services can be accessed from your cell phones or any other phones. Your wireless services will not change and placing or receiving CellConnect calls from your registered cell phone may consume minutes under your wireless plan.
Conference Calling.
Customers subscribed to this Service are assigned telephone number and passcodes for facilitating conference calls by participants at various locations.
3. Fees and Charges; Taxes and Governmental Surcharges
Service Fees and Charges.
You agree to pay all recurring, nonrecurring, usage,airtime and access charges, and charges for features, data usage, directory listing, directory assistance, calling card, operator assistance (such as collect calls), and for charges incurred at your specific request, or resulting from use of a password or pin code related to your Services or Account, or from any use of any carrier access (or “1010” Dial-Around) code from your telephone (or other devices),charges related to all associated Equipment, installation and maintenance, and all other charges associated with your Lingo Services.This responsibility is not changed by virtue of any use, misuse, or abuse of your Service undertaken or caused by third parties. Any person subscribing to or activating service on behalf of another without authorization to do so shall be bound by the Terms and shall be responsible for all charges on the account. Any fixed recurring charge applicable to your Service is billed in advance and applies whether or not you make any calls, and whether or not your billing period covers a full billing cycle, unless proration of the recurring charge is required by law. If you wish to discontinue Lingo as your primary long distance carrier, long distance usage charges and/or the fixed recurring charges, depending on your Service, will continue to apply until you contact your local incumbent carrier and choose another primary long distance providerand until you contact Lingo to cancel your Lingo Service.
Surcharges.
In addition to per-minute charges and other usage and charges related to features and equipment, Lingo will assess surcharges that vary by plan as noted below. Non-recurring charges are those related to call usage, including but not limited to per-minute rates, per call charges, per call connection fees etc.)(NRCs). Monthly recurring charges are those assessed per billing cycle and may include, without limitation, Monthly Fees, Carrier Cost Recovery Fees, LEC Billing Fees, Paper Bill Fees, etc. (MRCs). More, information about these Surcharges are available from the Service Schedule applicable to your specific calling plan.
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If applicable, these vary by plan, are assessed per billing cycle and are billed in advance. New local customers are charged a prorated amount for basic local service charges from the initiation date of service and the initial invoice will reflect the prorated amount, as well as one month of basic local service charges, as Lingo bills one month in advance of services being rendered. New customers are not charged the Monthly Fee in the first billing cycle of Service. The Monthly Fee in the cancellation month is not prorated, unless required by law.
Minimum Usage Fee (MUF):
If applicable, the Minimum Usage Fee applies in each billing cycle in which Customer’s qualifying charges do not meet the minimum usage amount that varies according to plan. The Minimum Usage Fee is the difference between the minimum usage amount and the Customer's qualifying charges in a billing cycle (Top-Up). Qualifying charges to be applied toward calculating the monthly usage minimum will be derived from all NRCs and MRCs, that apply to the plan. For Top-Up plans, no MUF is charged in the first biling cycle of Service. For Dial-Around Customers, if applicable, no MUF is charged if the qualifying charges are less than zero.
Carrier Cost Recovery Fee (CCRF):
The non-VoIP CCRF is $1.97 per billing cycle. VoIP plans may charge a different CCRF as noted on the VoIP Service Schedule.
Per Call Connection Fee:
For Customers of Dial-Around plans, if applicable, the Per Call Connection Fees apply per completed call and fee amount may vary by plan and by type of call (e.g. interstate vs. intrastate).
Paper Bill Fee:
If applicable and where permitted by law, the Paper Bill Fee is applied to customers who choose to receive paper bills. The Paper Bill Fee is applied per billing cycle and equals $2.00.
Administrative Account Fee:
For prepaid services, an Administrative Account Fee may be assessed under some plans upon the expiration date of the Customer’s Prepaid Service after some period of inactivity. The Administrative Account Fee is equal to the remaining balance in the account.
Federal Universal Service Surcharge:
Lingo imposes a surcharge to recover the Federal Universal Service Fund (USF) contributions that all interstate telecommunications carriers are required to pay to the federal program that ensures that basic phone service is available in all areas of the country at affordable rates. This surcharge is not a government mandated charge but is added to the invoices to recover this cost from customers. The Federal USF contribution percentage is reviewed and adjusted quarterly by the Federal Communications Commission (FCC). The Federal USF Surcharge equals the applicable percentage calculated against the amount of interstate and international NRCs and the MRCs.
911 Fee:
A 911 fee is assessed per biling cycle for providing 911 and E911 Services. The method of calculating this fee may vary according to your Service.
Taxes and Governmental Surcharges.
You agree to pay alltaxes and governmental fees, surcharges, and assessments applicable to the Services, including 911 and E911 taxes that Lingo may assess. In addition, in order to provide you with the Services, Lingo may pay taxes and governmental fees and surcharges to the federal and state governments and to municipalities and other governmental entities, which Lingo may pass on to you as permitted by law.
Default Plans. Note: If you call your current local telephone company to switch your preferred long distance service to Lingo, Lingo will assign you a default calling plan, unless you have first contactedLingo to select a specific pricing plan.
Basic Dial-Around Long Distance.
Basic Dial-Around Long Distance pricing and other terms may vary from day-to-day. Customers of Basic Dial-Around Long Distance Service will be charged the pricing that is in effect at the time they place the call.Since these rates may change periodically, Customers should call Customer Service to verify the applicable rate before calling.
Contracted Dial-Around Long Distance.
Like other subscribed plans, Customers of Contracted Dial-Around Long Distance will be charged the current rates under their subscribed calling plan.
DID Numbers / My Country.
Lingo charges an additional monthly fee for international (non-United States) direct inward dial phone numbers (“DID”). Monthly fees for international DID numbers vary and are available from Lingo’s Customer Service Department. Customers that have international DIDs are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without notice and Lingo may be required to discontinue this Service, without notice. Lingo reserves the right to discontinue International DID services for any reason at any time and is only obligated to refund the pro-rated monthly fee.
International Mobile Destinations.
Lingo’s advertised rates for international calls are generally the rates charged for calls to landline telephones. Most calls to international mobile telephones are charged a different (usually higher) rate than calls to landline telephones.
Internet Access.
A data usage charge per gigabyte (GB) of data or portion thereof in excess of the Monthly Usage Allowance applicable to your plan will apply on a monthly basis for each gigabyte (GB) of data or portion thereof downloaded or uploaded. Any available data usage not consumed at the end of each month cannot be carried over into the next month. It is your responsibility to monitor and manage your monthly download and upload activity. Except in the case of unlimited usage plans, the amount of data uploaded and downloaded per month is subject to a maximum monthly limit noted in your plan. In order to ensure fair and proportionate use of Lingo’s services, if the Maximum Monthly Limit is exceeded, Lingo, at it’s discretion, may restrict, suspend or disconnect your Service. Other terms and the current rates and charges applicable to the Service are available at the applicable Service Schedule or descripton posted on the Lingo Websites. You agree to abide by our Acceptable Use Policy (AUP) incorporated into these Terms by reference. Any violation of our AUP will constitute a violation of these Terms and may result in the termination and/or suspension of your Service.
Rounding.
Each call completed will have an initial minimum charge of at least one minute, unless a greater or lesser billing increment is specified in the Service Schedule, and any time beyond that minimum will be billed in additional one minute increments, rounded up to the next whole minute, unless a greater or lesser billing increment is specified in the Service Schedule.If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. (Note: customers of some legacy Services agreed to plans having otherbilling increments. Contact Customer Service if you have any questions.)
Timing of Calls.
Timing of metered calls generally begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom Lingo must interconnect in order to terminate calls to foreign countries) designate a call as "answered" when the called party’s line rings or after a certain number of rings, and will charge Lingo for a completed call. In these situations, Lingo will charge for the call as if it were answered by the called party.
Third-Party Billing.
You are also responsible for any charges from third parties that arise when you use your phone numbers as a billing mechanism for third party products and services.
Maintenance and Repairs.
You will be responsible for payment of service charges for visits by Lingo or its subcontractors to your premises when a service request results from causes not attributable to Lingo or its subcontractors, including, but not limited to, when you are unwilling to complete troubleshooting steps requested by Lingo. You will provide Lingo and its subcontractors with reasonable access to your premises in order to install, maintain, and repair the Service or any related Equipment and you authorize any other adult resident or guest at your residence to grant access to your premises for these purposes.
No Refunds.
Neither non-usage of the Service nor misdialing while using the Service entitle you to a credit for, or refund of, any portion of a payment made to us.
4. Credit Evaluation; Credit Reporting Authorization
Our customers must have and maintain credit satisfactory to Lingo to receive and continue to receive Services. As permitted under applicable laws and without limitation to other rights provided in these Terms or other applicable policies, you authorize Lingo to (a) disclose your account information, including your payment history and confidential information, to credit reporting agencies or private credit reporting associations, and (b) periodically obtain and use your credit report and other credit information from any source in connection with Lingo's offering of the Services. You understand that if you fail to fulfill the terms of your obligations under these Terms, Lingo may report your failure to a credit reporting agency.
We may require you to make deposits or advance payments for Services, which we may use to satisfy or offset against any unpaid balance due and owing to Lingo under your Lingo Account. We may require additional advance payments or deposits if we determine that the initial payment was inadequate. Upon determination solely by Lingo of satisfactory payment history or as required by law, Lingo may begin refunding of the deposit or advance payment through bill credits, cash payments, or as otherwise determined solely by Lingo. Based on your creditworthiness, we may require you to enroll, and remain enrolled, in an automatic payment or electronic funds transfer plan.
Lingo reserves the right at any time, upon notice to Customer, to withdraw credit approval for the Customer, limit the amount of credit Lingo may make available to Customer, change the length of billing cycle and/or due date and/or change the security requirements applicable to Customer from time to time hereunder in Lingo’s sole discretion. Lingo shall be entitled to suspend or terminate, in whole or in part, any or all Service hereunder if Lingo has withdrawn its credit approval of Customer, or Customer has failed to comply with the then applicable security requirements hereunder.
Additionally, if at any time Lingo determines that, in its sole and absolute discretion, payment for Services may not be made when due, Lingo may suspend services. Lingo may suspend the Services, apply any deposit, if any amounts due by Customer for the Services (including early termination charges), are not paid in full by the due date. Customer agrees to restore any security to the amounts previously in place after Lingo applies any of the security to Customer’s obligations. Lingo will return the unapplied portion of any deposit to Customer at the end of the Service Term. Interest will not be paid on advance payments or deposits unless required by law.
5. Billing and Payment
Payment Cycle.
Unless otherwise stated in a Service Schedule, billing for the Services commences when Lingo has provisioned the Services. Recurring charges for each month's Services will be billed in advance. Billing is based on the billing cycle applicable to your Service as noted on your invoice. Non-recurring and usage-based charges for the Services generally will be billed in the billing cycle following the transaction and may be back billed in a subsequent month to the extent allowed by applicable law.Any charges not included in your rate plan and any additional usage charges may be billed in a later billing period.We may initiate mid-cycle billing of additional amounts due that exceed $75.00.
Method of Billing/Payment.
Fees and charges for the Services will be billed to your Lingo Account either through an online bill or a paper bill. You must register online to establish a personal Lingo Account and provide a billing email address for online billing. You will then be able to view and pay your bill online by logging on to your personal Lingo Account (username and password required). You understand that you have sole responsibility for the security of your password and you are solely responsible for notifying Lingo if your password is lost or stolen. Lingo is not liable for any claims, costs, damages, or expenses arising from a lost, misplaced, or stolen password. If you forgot your password or want to change your password for any reason, you may request to reset your password by calling Customer Service. It is your responsibility to notify Lingo immediately if your contact information changes (including changes to your postal address, any email addresses we have on file for you and contact telephone, fax and cell phone numbers).You shall pay each invoice in full upon receipt in immediately available U.S. Dollars.
Billing Agent.
If we choose to use a payment agent instead of rendering a bill directly to you, then all charges due by you are payable to any agency duly authorized to receive such payments. The billing agent may be a local exchange telephone company, credit card company or other billing service.
Credit Card Payments.
You may be asked to provide us with a valid email address and a credit card number from a card issuer that we accept in order to activate your Services as well as other information to enable us to bill your credit card account. You authorize the issuer of the credit card to pay any amounts incurred by you as described in these Terms without requiring a signed receipt, and you agree that these Terms are to be accepted as authorization to the issuer of the credit card to pay all such amounts. You authorize Lingo and/or any other company who bills products or services, or acts as billing agent for Lingo to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your credit card until such amounts are paid in full. In addition, you hereby authorize Lingo to charge and/or place a hold on your credit card with respect to any unpaid charges related to the Services.You agree to provide Lingo with updated credit card information upon Lingo's request. If, at any time the information you previously provided is no longer valid, you are solely responsible for maintaining and updating the credit card informationwe have for you on file. You will remain responsible for all Lingo charges, fees, taxes and surcharges even if these cannot be paid through your authorized credit card account for any reason.You acknowledge and agree that Lingo will have no liability for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds, on your credit card. If you mistakenly provide a different credit card number, instead of the number you intended to provide, you authorize all charges described herein to be applied to the credit card number you have provided to us. In the event you are enrolled, or later enroll, in an automatic payment or electronic funds transfer plan, you agree that all sums described herein may be charged, at Lingo's option, to the account number provided for such automatic payment or electronic funds transfer plan.Lingo reserves the right to charge credit card handling fees of up to three percent (3%) of the bill or any higher industry standard rate as may become applicable.
Automatic Payments.
By registering for automatic payment you agree to have an amount you select deducted from your credit card account and added to your Lingo Account. All Lingo charges, rates and fees, plus applicable taxes and governmental surcharges applicable to your Service, will automatically be deducted from your account balance. There are no refunds for any unused service and automatic payments are non-refundable.Call us at least thirty (30) days prior to the end of your account billing cycle to stop further charges to your credit card account.
Backbilling.
If any charges, fees, taxes or any other assessments cannot be deducted in real time from your account balance (for example, due to system errors, insufficient account balance or other factors), they will be deducted as soon as the cause of the delay is cured.
No Credit Allowances or Refunds for Prepaid Service Plan Customers.
We will neither credit nor refund any service fees or any other amounts you pay for any prepaid service plans.For example, annual prepayment plan charges are not subject to refund.
No Credit for Non-Usage or Misdialing.
Neither non-usage of the Service nor misdialing while using the service entitle you to a credit for, or refund of, any portion of a payment made to us.
Promotions.
Any and all benefits provided you under a promotion are provided to you so long as you continue to meet qualification requirements. Any promotional benefits may be modified or terminated at any time as set forth in these Terms or in any Legacy Terms or if you change your Services after installation. Standard monthly rates will be charged at the conclusion of the promotional benefits period or when you no longer qualify for the benefits.
Late Payment Charge.
No payment due for the Services is subject to reduction, set-off or adjustment of any nature by you. You must pay your invoice in full even if you have a dispute. If paymentin full is not received by the payment due date, you will be charged a late payment charge of one and one-half percent (1.5%)plus $1.50 per month or the highest rate allowed by law, calculated from the due date on all unpaid sums due and owing to Lingo.
Acceleration.
All charges owed at the time of cancellation or termination will be immediately payable. We will immediately charge the credit card you have provided to us for payment, or initiate an electronic funds transfer if that is your payment method, for all amounts due at that time. We will pursue collection for unpaid amounts and may report these unpaid charges to credit bureaus.
Bill Inquiries and Refunds.
If you believe you have been billed in error for the Services, please notify us within 60 days of the billing date by contacting Customer Service (contact methods specified in Section 17 below). Lingo will not issue refunds or credits after the expiration of this 60-day period, except where required by law or regulation. You you must pay your invoice in full even if you have a dispute.
Collection.
Lingo may assign unpaid late balances to a collection agency or attorney for appropriate action.Even if we accept late or partial payments (including those marked "Paid in Full" or similar text), it will not waive any of our rights to collect the full amount due to us for the Service. You agree to reimburse Lingo for all reasonable costs and legal expenses incurred to recover sums due, including the fees of any collection agency or attorney. You expressly authorize, and specifically consent to allowing, Lingo and/or its outside collection agencies, outside counsel, or other agents to contact you in connection with any and all matters relating to unpaid past due charges billed by Lingo to you. You agree that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, email address, or any other electronic address that you have provided, or may in the future provide, to Lingo. You agree that any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set email messages delivered by an automatic emailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
Returned Payment Charges:
You will be charged a fee the greater of $25 or 5% of the amount of thepayment for any check or other instrument (including credit card charge-backs) tendered by you and returned unpaid by a financial institution for any reason.
6. Equipment; Telephone Number
Telephones, mobile phones, analog telephone adaptors (ATA’s) (and other voice over Internet Protol (VoiP) devices), computers, and other telecommunications equipment (referred to herein collectively as “Equipment”) will either be provided by the customer (“Customer Equipment”) or, if available,will be leased or purchased from Lingo (“Lingo Equipment”).
Customer Equipment and Inside Wiring.
The customer shall be solely responsible for acquiring, installing and maintaining all Customer Equipment that is necessary in order to receive and use the Services.Lingo shall not be responsible for the installation, operation or maintenance of any Customer Equipment or any wiring inside the residence or place of business of the Customer. Lingo shall not be responsible for any failure, degradation, or other defectsin the Service due to Customer Equipment or the lack thereof. The installation, operation, maintenance, repair or removal of any software, program, or other hardware related to the Services, on Customer’sEquipment (computer(s), network(s) or other hardware) may result in service outage, loss or damage to that Customer Equipment or any data, information or files on Customer’s Equipment. Customer shall be solely responsible for all data and software back up, and customer is solely responsible for protecting its computer and network data, information and files. Customer assumes all responsibility for Lingo's, loss or damage to its computer or network hardware, data, information, files, peripherals, or other equipment associated with installing, operating or removing any Customer Equipment, software or other hardware. Any warranty covering customer’s computer, network or other equipment may become void when customer opens that computer or equipment to install and use such equipment with the Services. Lingo does not commit or warrant that customer’s installation or use of any computer, equipment, software or other hardware will permit customer to access, operate, or use any Service.
Lingo Equipment.
You will bear all the risk of loss, theft, or damage to the LingoEquipment. This risk is from the time we ship your LingoEquipment to you.If you receive cartons or LingoEquipment that is visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact Lingo Customer Service.
Rental fees, if applicable, to yourLingo Equipmentwill apply for the Service Term and may be charged separately, in addition to any applicable taxes and governmental surcharges.Neither the Customer not its creditors, landlord(s), or any other third-party has any property, security or other interest in the Lingo Equipment. The Customer is responsible for providing adequate facilities and space to house, maintain and operate the Lingo Equipment in accordance with the manufacturer’s requirements. Customer hereby agrees to comply with all instructions and requirements regarding the use and/or care of the Lingo Equipment, and to take reasonable measures to protect the Lingo Equipment at all times. The customer must not change the electronic serial number or equipment identifier, encryption keys,other authentication, or technical dataor perform a factory reset of your Lingo Equipment, without express permission from Lingo. Lingo reserves the right to terminate the Service should customer tamper with the Lingo Equipment. If leased Lingo Equipment was damaged due to customer’s intentional acts, negligence, or use inconsistent with theseTerms, as determined by Lingo, the Customer will be responsible for the price of repair or replacement of the LingoEquipment. Any tampering with the LingoEquipment, including, for example, opening and attempting to modify the Lingo Equipment, or attempting to connect it to unauthorized hardware, will be treated as damage due to Customer’s intentional acts or negligence.
Equipment Upgrades:
From time to time,the LingoEquipment may need to be updated. Such upgrades may occur automatically. During this time you may not be able to obtain dial tone or make and receive calls, including the ability to make 911 calls.
Prohibited Equipment:
You are prohibited from using the LingoService with any equipment other than Lingo-approved Equipment received from retailers or from us.
Equipment Purchased from Retailers:
If you purchased your Equipment from a retail provider, you may return your Equipment only to that retail provider. All Equipment returns are subject to the return policy of the retail provider and are not subject to any warranties described in this Section. We will not accept any Equipment returned to us from a retail customer.
Lingo Equipment Defects.
Customers must notify Lingo within thirty (30) days of receipt of the Lingo Equipment (or within the warranty period provided by the manufacturer, whichever is later), if Customer suspects that the Lingo Equipment has a defect. If Customer notifies Lingo us within such time period, the Lingo Equipment will be replaced at no charge (except for any applicable restocking fee and shipping and handling charges for the returned items). All returns are subject to trouble-shooting, inspection and confirmation of the defect byLingo’s(or the manufactuer’s) technical support personnel. In addition, if the defective Equipment is not returned within the above warranty period, you may be charged a replacement fee equal full replacement costof the Equipment.
Manufacturer warranties do not apply to any defect or failure other than a manufacturing defect. Without limiting the generality of the warranty, it does not apply to any defect caused by damage in transit or the handling of your LingoEquipment by you or any other person after it is delivered to you.
For returns subject to this limited warranty, you must comply with the following:
(1) We receive your Lingo Equipment, in its original condition, reasonable wear and tear excluded, together with the original packaging, all parts, accessories, and documentation;
(2) Before returning your LingoEquipment to us, you need to obtain a valid return authorization number from Lingo.
(3) You pay all costs of shipping your LingoEquipment back to us.
Your only remedy for any breach of any limited warranty or other breach of any duty regarding a Lingo Equipment is to get a repaired or replacement Equipment by following our return procedures.
OTHER THAN EXPRESS WARRANTIES FOR THE EQUIPMENT IN THE DOCUMENTATION THAT COMES WITH YOUR EQUIPMENT, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM, ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE EQUIPMENT FOR A PARTICULAR PURPOSE, AVAILABILITY, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE EQUIPMENT OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE", AVAILABLE FOR THE SENDING OR RECEIPT OF CALLS OR WILL MEET YOUR REQUIREMENTS. THIS SECTION DOES NOT LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY IN THE DOCUMENTATION PROVIDED WITH YOUR EQUIPMENT.
Some States do not allow limitations on how long an implied warranty lasts, so the some of the above limitation may not apply to you.
Return Upon Termination.
Upon termination of the Services, for whatever reason, customers must return the leased Lingo Equipment, undamaged, within 21 calendar days to Lingo. All components must be included and Equipment must be in good condition, as determined by Lingo. Lingo will provide a return label for shipping of the Equipment and you are responsible for paying for the applicable return shipping and handlingfee. If the Equipment is not returned within 21 calendar days, or is returned damaged, customers will be charged the full replacement cost for the Equipment. Lingo may retain any advance payment or deposit, or portion thereof that previously had not been refunded, if Customer fails to return the Equipment within the 21-day time period. If the Equipment is returned within 21 days of termination, any unused advance payment or deposit will be refunded. No refunds will be made for any Equipment returned more than 21 days after termination.
Telephone Numbers.
Subject to any porting rights afforded to you under applicable law, you have no ownership rights to and you may not transfer or duplicate any assigned telephone number that may be provisioned by us to be used with any Service, and you agree we may change any such telephone number at any time with or without prior notice to you.
All Equipment and Telephone Numbers.
You agree that you will use the Equipment and any Telephone Number we provision for you only for their intended use, and not for any other purpose.
7. Software
The Services and the Equipment may use and include certain software and/or firmware (the "Software") provided by Lingo, by the Equipment manufacturer or by third-parties.
End User License.
If you downloaded or installed Software, your use of that Software is subject to the End User License Agreement that accompanied that Software.
Non-Lingo Software.
Your use of the Services and the Equipment may cause you to use or interact with software of non-Lingo third parties. In such cases, those third-parties’ terms and conditions apply to your access and use of such non-Lingo software. Lingo is not liable to you for any loss or injury arising out of or caused, in whole or in part, by your use of any such software accessed through, or in conjunction with, the Service or Equipment.
Lingo License.
With regard to any Lingo Software (including Software upgrades, changes, or supplements) which is not accompanied by an End User License Agreement, and which is incorporated into the Services or the Lingo Equipment, Lingo, or its applicable third party licensors, grants you a limited, personal, nontransferable, and nonexclusive right and license to use the object code of its Software on the Services and the Equipment; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or structure, sequence and organization of, sell, assign, sublicense, distribute, rent, lease, grant a security interest in, or otherwise transfer any right in the Software. You acknowledge that this license is not a sale of intellectual property and that Lingo or its third-party licensors, providers, or suppliers continue to own all right, title, and interest to the Software and related documentation. The Software is protected by the copyright laws of the United States and international copyright treaties.
NOTICE ABOUT AUTOMATIC SOFTWARE UPGRADES. Lingo, or its applicable third-party licensors may provide Software upgrades, updates, or supplements (such as, but not limited to, adding or removing features or updating security components). You understand and agree that Lingo, or the applicable third-party licensor, have the unrestricted right, but not the obligation, to upgrade, update, or supplement the Software on the Services and the Equipment at any time. Software upgrades, updates, or supplements could reset your Equipment and erase saved preferences and stored content.
8. Third-Party Products and Services
You understand that our Servicesand Equipment can be used to access, acquire or purchase goods, content, and services (including subscription plans) like , graphics, games, news alerts, applications, software, hardware and other goods and services that are provided by non-Lingo third parties. You understand that you are responsible for all charges associated with such items purchased through the use of the Services and Equipment assigned to your Lingo Account.
Lingo IS NOT A PUBLISHER OF THIRD-PARTY INFORMATION, APPLICATIONS, OR OTHER CONTENT AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE, STATEMENTS, OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY THIRD PARTIES.
Policies regarding intellectual property, privacy and other policies or terms of use may differ among content or service providers and you are bound by such policies or terms when you visit their respective sites or use their services. It is your responsibility to read the rules or service agreements of each content provider or service provider. Any information you involuntarily or voluntarily provide to third parties is governed by their policies or terms. The accuracy, appropriateness, content, completeness, timeliness, usefulness, security, safety, merchantability, fitness for a particular purpose, transmission or correct sequencing of any application, information or downloaded data is not guaranteed or warranted by Lingo. Delays or omissions may occur. Lingo shall not be liable to you for any loss or injury arising out of or caused, in whole or in part, by your use of any information, application or content, or any information, application, or other content acquired through the use of your Services and Equipment.
9. Fraudulent Conduct; Security Measures
You agree to keep confidential all passwords, user IDs, IP addresses, and other account identifiers and are solely responsible for any liability or damages resulting from your failure to maintain that confidentiality. You are solely and fully responsible and liable for all activities that occur under your Lingo Account, assigned telephone number(s), password, user ID, or IP address. You agree to ensure you exit from your account as applicable at the end of each session and that you periodically change your password.
If you suspect any breach of security such as loss, theft, public use or unauthorized disclosure or use of the Services, your Lingo Account, password, user ID, or any creditcard number provided to Lingo, you must immediately contactCustomer Service as specified in Section 17 below.
Assumption of Risk; Hacking.
There is a risk that other users may attempt to access your Services, such as through the Internet or connected networks or through hacking. You acknowledge this risk as inherent to the nature of the Services and you agree to take full responsibility for maintaining adequate security precautions to restrict access to the Services, or through the Services,to your facilities, equipment, hardware, software, systems, computers, servers, IP Addresses, telephone numbers andLingo Equipment, to prevent hacking, theft, tampering and/or unauthorized access and prevent the fraudulent, unauthorized, illegal or improper use of the Lingo Services, equipment and systems and of the services, equipment and systems of non-Lingothird-parties.
If you are a customer of Residential Services, this means that you agree to maintain and use secure passwords and secure locations, and you agree to safeguard any passwords and your Lingo Account information.
If you are a purchaser of Small Business Services, you are, in addition, responsible for establishing and maintaining such security measures to protect against PBX hacking and other such fraud or other hacking by external third-parties.
Regardless of your Service, you agree to pay any Service fees and charges (and any applicable taxes and governmental surcharges) incured from the use of the Services (including usage charges) even if these result from the fraudulent, unauthorized, illegal or improper use of the Services by third parties. You agree to pay any claims, costs, damages, liabilities and expenses incurred by Lingoas a result of your failure to establish and maintain adequate security measures to protect against the fraudulent, unauthorized, illegal or improper useof the Lingo Services.
You agree to notify Lingo immediately, by contacting Customer Service as specified in Section 17 below, if the Customer Equipment or Lingo Equipment is stolen or if you become aware at any time that Services are being stolen or fraudulently used. When you contact Customer Service you must provide your Lingo Account number and a detailed description of the circumstances of the theft or unauthorized use, including documentation (e.g., a copy of a police report). You will be responsible for all charges incurred on your Lingo Account (including usage charges) until you report the theft or fraudulent use of the Services. You will be responsible for stolen or damaged Equipment and are advised to maintain adequate insurance coverage to protect against such loss. Failure to provide notice to Lingo of any theft or fraudulent use of the Services or the Equipment in a timely manner may result in the termination of your Services and additional charges to you.
10. Indemnity
You agree to indemnify, defend and hold Lingo and its direct and indirect subsidiaries and affiliates and the directors, officers, agents, and employees of any of these (the “Lingo Indemnified Parties”) harmless from any claim, demand, action, citation, or legal proceeding, including, but not limited to, those arising out of or resulting from the death or bodily injury of any person, or the damage, loss, or destruction of any real or tangible personal property, and for reasonable attorneys' fees, made by any party against the Lingo Indemnified Partiesthat arise out of or result from your use of or inability to use the Services or yourviolation of any of theseTerms, or your violation of any rights of any third party.
11. Service Interruptions, Limits, Modifications
Service may be temporarily interrupted or otherwise limited for a variety of reasons; some beyond the control of Lingo. Lingo reserves the right to refuse credit allowances for interruptions of Service. Lingo also reserves the right to modify or discontinue, temporarily or permanently, at any time and from time to time, the Services (or any function or feature of the Services or any part thereof) without liability. You acknowledge that Lingo may establish general practices and limits concerning use of the Services, including without limitation, the limits set forth in any Service Schedule or on the Lingo Websites.
12. Service Periods; Renewals; Suspension and Termination of Service
Service Periods; Renewals; Early Termination.
Service may be provided for month-to-month terms or for longer, fixed time periods, depending on your plan. The Service term automatically renews for successive termsof equal duration unless you call Customer Services at least thirty (30) days prior to the expiration of the current term.The renewal begins on the day after the last day of your service term.If you choose a one (1) year,a two (2) year or a longer fixed term of service, you agree to purchase Service for the full term and any renewal term, if applicable. If you terminate Service before the end of your fixed term (or any renewal term), or we terminate following your default, you will be in material breach of this Agreement. You agree our damages will be difficult or impossible to determine and agree to pay us, as a reasonable estimate of our damages (not as a penalty) and in addition to all other amounts you owe, any early termination fee applicable to the Service.
Automatic Renewals.
In addition, upon the conclusion of your term commitment period,Lingo will automatically begin charging the applicable charges for the renewal period, including charging the credit card you previously authorized to pay for the Services,unless you cancel the Service by calling Lingo’s Customer Service at least thirty (30) days before the end of the current term. If you were receiving a discount based upon aterm commitment, your discount may cease and you may be billed the standard monthly rate for the Services during the renewal term. If you subscribe to a prepaid plan, your subscription will automatically renew at the end of each term for successive terms of equal duration. Lingo may charge your credit card for the prepayment to cover the renewal term, unless you cancel the Service by calling Lingo’s Customer Service at least thirty (30) days before the end of the current term. Lingo does not refund any prepaid fees for unused service.
Prepaid Plans.
Prepaid Service plans terminate (a) when you call to cancel, (b) when the charges applicable to the Service cannot be charged to your authorized credit card for any reason (c) when the account balance is depleted, if the account is not recharged, (d) six (6) months from the date of the first charge or last recharge, whichever occurs latest ("Account Expiration"). An Administrative Account Fee shall be assessed upon the date of the Account Expiration. Call us at least thirty (30) days prior to the end of your account billing cycle to stop further prepaid charges to your credit card account.
Suspension.
Lingo may suspend or terminate you Services if your payment is past due. Such suspension or termination may continue until satisfactory arrangements have been made for the payment of all past unpaid charges.While your Services are suspended, billing will continue for your recurring charges and any usage based charges plus any applicable taxes and governmental surcharges. You will be charged a fee to restore your Service from suspension.
Termination by Lingo.
In addition, Lingo may immediately terminate all or a portion of your Service or suspend Service, without notice, for conduct that Lingo believes (a) is illegal, fraudulent, harassing, abusive, or intended to intimidate or threaten; (b) constitutes a violation of any law, regulation, or tariff (including, without limitation, copyright and intellectual property laws); or (c) is a violation of these Terms or any Service Schedule, Service Order, tariff, price list or signed contract.
Law Enforcement.
Lingo may refer any illegal, fraudulent or harassinguse to law enforcement authorities without notice to you.
Accrued Charges. Termination or cancellation of Service by Lingodoes not excuse you from paying all unpaid, accrued charges due in relation to these Terms, including any early termination fees that may applyall of which immediately become due and payable.If you lease your Equipment, you may also be charged its full replacement costif the Equipment is not returned in accordance with Section 6.Termination or suspension by Lingo of the Services also constitutes termination or suspension (as applicable) of your license to use any Software.
13.Cancellation by Customer; Porting Phone Number
Service Cancellation.
Lingo will continue to bill your account until (a) your Service or telephone number is successfully transferred to an alternate carrier or provider and (b) you contact Lingo to cancel you Lingo Service. It is your responsibility to make the necessary arrangements with your new provider to transfer your service. If Lingo is your local provider or preferred long distance carrier, that means that you will need to contact your new local exchange carrier to transfersuch Services to stop further billing by us. The new service provider will transfer the service; Lingo cannot initiate or effectuate the transfer. However, you must ALSO contact Lingo to cancel Lingo Services. Until the transfer of the Service is succcessful and confirmed, you will remain responsible for charges applicable to your Lingo Service.
Porting from Lingo.
You may be able to transfer, or port, your current Lingo phone number to another service provider. If you wish to port (i.e., transfer) your current Lingo phone number to another carrier or service provider, it is your responsibility to ensure that your current Lingo phone number has already been successfully ported to your new carrier or service provider prior to requesting cancellation of your Service with Lingo.
CANCELLATION OF YOUR Lingo ACCOUNT PRIOR TO THAT CONFIRMATION FROM YOUR NEW SERVICE PROVIDER THAT YOUR CURRENT Lingo TELEPHONE NUMBER HAS SUCCESSFULLY PORTED SHALL RESULT IN YOUR INABILITY TO USE YOUR CURRENT Lingo NUMBER IN THE FUTURE BECAUSE Lingo WILL NOT BE ABLE TO PORT THAT NUMBER AFTER YOU CANCEL YOUR Lingo SERVICE.
If you request your new service provider to port a number from us and you have multiple numbers assigned to your account and/or additional Equipment, you must inform us, by calling Customer Service, of your intent to terminate all the Services on your account, prior to the successful completion of the requested port or we will select the most appropriate billing plan for any remaining numbers and/or devices on your Lingo Account, and you will continue to be responsible for all the charges and fees associated with the remaining services on your LingoAccount
EVEN IF YOU HAVE SWITCHED YOUR SERVICE TO ANOTHER SERVICE PROVIDER, WITH OR WITHOUT PORTING YOUR CURRENT Lingo PHONE NUMBER(S), YOU STILL MUST CANCEL THE Lingo SERVICE BY CALLING THE LingoCUSTOMER SERVICE DEPARTMENT. UNTIL YOU FORMALLY CANCEL THE SERVICE, YOU MAY CONTINUE TO BE BILLED (AND CHARGED ON YOUR CREDIT CARD) FOR THE SERVICE AND YOU WILL BE RESPONSIBLE FOR PAYING THE BILLED CHARGES IN FULL, INCLUDING ANY DISCONNECT, EQUIPMENT RECOVERY OR EARLY TERMINATION FEES THAT MAY BE APPLICABLE.
If a port is unsuccessful for any reason, then unless you independently call us to request disconnection or unless we determine to disconnect your line as stated in these Terms, your Service and your agreement with us will not terminate, you will remain a Lingo customer, and you will continue to be responsible for all charges and fees associated with your LingoAccount.
Once your service is terminated and/or your telephone number has been ported, you will remain responsible for all charges and fees through the end of the current billing cycle, including any unbilled charges, as well as for any applicable early termination fees that apply.
Unless required by law, recurring fees will not be prorated in any partial termination month.
14. Emergency 911 and E-911
Registered Location.
Customer shall be required to provide Lingo with the area code and number assigned to a particular telephone or other device and provide Lingo with the true, accurate and complete physical street address at which the device will be used (“Registered Location”). Customer further agrees not to move such device to another location without first providing Lingo with written notification of such move and the new physical address on a change of address form designated by Lingo. Customer understands that the address registered with Lingo as being associated with a device and area code and number will be the address provided when Emergency 911 service is accessed from such device and/or area code and number.
911 and E911.
Lingo customers have access to Enhanced 911 (E911), basic 911 or our national emergency call center. With E911 service, when you dial 911 your Lingo phone number and registered address is sent to the local emergency center serving your location, and emergency operators have access to this information in order to send help and call you back if necessary. With basic 911, when you dial 911, local emergency operators answering the call may not see your Lingo telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your Lingo telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Once local emergency centers are capable of receiving our customers' information, we automatically upgrade customers with basic 911 to E911 service.
If you do not have access to either basic 911 or E911 for any reason, your 911 call will be sent to the Lingo national emergency call center, where a trained agent will ask for your name, telephone number, and location, and then transfer you to the local emergency center nearest to your location.
VoIP Customers:
Because VoIP Customers can move their VoIP phone between locations and because, for technical reasons, the emergency operator may not have their name, location or contact information available, VoIP Customers must immediately inform the emergency operator of their location and contact particulars any time they call 911. Until Customers are told to do so by an emergency dispatcher, VoIP Customers must not disconnect their 911 call. If a Customer is inadvertently disconnected, they must call back immediately.
Other Limitations.
Your phone service (including 911 service) depends not only on your continued subscription (and payment) for the service but also power and equipment function. There are certain circumstances in which Emergency 911 service will not function properly or be available, including without limitation (a) any loss of power to the system, equipment or a particular telephone device, (b) the telephone device to which a particular number has been assigned is moved to another location or area from where it was originally installed and registered (the Lingo Residential and Small Business Service does not cover “nomadic” devices unless Customer has subscribed to a VoIP Service – see the current ImpactConnect VoIP Service Schedule), and (c) there is an outage, degradation or other disruption to Customer’s telephone or broadband connection. Lingomay make available to Customer stickers that may be placed on telephone equipment alerting users of the above limitations, and Lingo recommends Customer places them on each device that may be used to make calls. Also, any Service that does not include local service will not include Emergency 911 service.
If your service is disconnected or suspended due to non-payment, you may experience a failure, disruption or delay in your 911 service.
VoIP Service.
In addition, VoIP phone service depends on Internet connectivity. In the event of Internet outages (including congestion)you may experience a failure, disruption or delay in your 911 service. For a complete description of our VoIP 911 service, please see our ImpactConnect VoIP Service Schedule at www.impactconnect.net.
Inform Household.
You must notify members of your household and other potential users of your VoIP phone service of the nature and limitations of 911 emergency calls.
Limitation of Liability:
These Terms limit and disclaim liability related to 911 service, so please read these Terms carefully.
15. Disclaimer of Warranties; Limitation of Liability
YOU UNDERSTAND AND AGREE THAT:
(a)No Warranties:
(1)YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Lingo EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
(2)Lingo MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (v) THE SERVICES WILL NOT CONFLICT OR INTERFERE WITH OTHER SERVICES FROM Lingo OR THIRD PARTIES THAT YOU RECEIVE AT YOUR PREMISES.
(3)Credit allowances for interruption of Service or Service Outages or for Service defects or errors, including international calling services, will be not be provided, unless required by law or specified in a Service Schedule or service level guidelines.
(4)NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Lingo OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(b)Limitation of Liability:
(1)YOU UNDERSTAND AND AGREE THAT, UNLESS PROHIBITED BY LAW, Lingo SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF REVENUE OR PROFITS, BUSINESS OR GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF Lingo HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) USE OF THE SERVICES (WHICH INCLUDES EQUIPMENT, SOFTWARE, OUR WEBSITES AND INSIDE OR OUTSIDE WIRING), (b) THE PERFORMANCE, NONPERFORMANCE OR ERRONEOUS PERFORMANCE OF THE SERVICES OR OUR WEBSITES, (c) THE INSTALLATION, MAINTENANCE, REMOVAL, OR TECHNICAL SUPPORT OF THE SERVICES, EVEN IF SUCH DAMAGE RESULTS FROM THE NEGLIGENCE OR GROSS NEGLIGENCE OF AN Lingo INSTALLER, TECHNICIAN, OR OTHER REPRESENTATIVE, AND/OR (d) ANY INABILITY TO REACH 911 EMERGENCY SERVICES, ANY ALLEGED INTERFERENCE WITH ALARM OR MEDICAL MONITORING SIGNALS, OR ANY FAILURE OF ALARM OR MEDICAL MONITORING SIGNALS TO REACH THEIR INTENDED MONITORING STATIONS ALLEGEDLY AS A RESULT OF THE SERVICES. (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.)
(2)IN ADDITION, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH Lingo IN CONNECTION WITH THE SERVICE, INCLUDING ANY DIRECT DAMAGES ARISING FROM OR RESULTING FROM ANY OF THE CAUSES LISTED IN SECTIONS B(1) (a) THROUGH (d) IN THE PRECEDING PARAGRAPH, IS A REFUND NOT TO EXCEED THE TOTAL AMOUNT OF THE SERVICE FEES PAID DURING THE IMMEDIATELY PRECEEDING TWELVE MONTH PERIOD.
(c)Network Management:
Lingo may (1) deny, for any lawful reason, your request for Service, or (2) limit or allocate the facilities available to or used by any Service, if necessary, to manage its network in an efficient manner, meet reasonable Service expectations, furnish Service to existing and future customers based on forecasted customer requirements, or for any other lawful reason.Lingo may, without notice (consistent with governing laws or regulations), block traffic to or from specific countries, country codes, cities, city codes, local telephone exchanges ("NXX exchanges"), individual telephone stations, groups or ranges of individual telephone stations, or calls using certain customer authorization codes, whenever Lingo deems it necessary to take such action to prevent (w) the unlawful use of Service; (x) nonpayment for Service; (y) the use of Service in violation of this Agreement; or (z) network blockage or the degradation of Service furnished to you or other customers.
16. Notice To You by Lingo
Lingo may from time to time change the Terms, and the rates and charges for the Service, by giving notice of the change. Unless otherwise stated in these Terms, notices to you may be made via email, regular mail, posting online at http://lingo.com(or on any other website operated by Lingo that describes your Service), recorded announcement, bill message, bill insert, newspaper ad, postcard, letter, or call to your billed telephone number. It is your responsibility to check these materials for updates and notices.Notices will be considered given, and will become effective, fifteen (15) days after the date that the change is posted on lingo.com or fifteen (15) days after such change is communicated to you as specified in this Section, or as otherwise required by law.
Customers are advised to check lingo.com on a regular basis for changes and to review their invoices for notice of changes. The modified Terms posted lingo//www.lingo.com" target="_blank">lingo.com supersedes all previously agreed to electronic and written Terms. By continuing to use the Service after such changes have been made, you accept and agree to all changes. IF YOU DO NOT ACCEPT OR AGREE TO ANY OF THE CHANGES, YOU MUST TERMINATE YOUR SERVICE IMMEDIATELY.
Notwithstanding the above, in the event that Lingo’s underlyingcost of providing the Service increases with less than 15 days notice to Lingo, Lingo may increase its rates without providing prior written notice to you. Lingo will not provide advance notice of changes to taxes and governmental surcharges required by law.
17. Customer Service Contact Information
Unless otherwise specified in these Terms or required by applicable law, notices by you to Lingo must be given by contacting Customer Service as noted in this Section 17and such notices are effective as of the date that our records show we received your communication.
Easily establish and manage your account to make payments, check usage, change your Service, add features or contact us with questions or concerns. Go to the “My Account” feature located at the following websites and follow the prompts. You will need to give us an email address and will need to establish a secure password.
In addition, our call centers are available to assist you with any question or concern you may have. The preferred method of contact is via email, at the email addresses noted below. If you do not have internet access, you may contact us by telephone at the below referenced telephone numbers.
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For Excel and Vartec Customers: Email: excelcustomerservice@excel.com Excel Local: 1-877-668-0808 For Trinsic Customers: |
VarTec Local: 1-800-708-7395 For Matrix Business Technologies Customers:
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Customers of our various dial-around services, may contact us as follows: |
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New Dine Line 10-10-811 |
10-10-818 |
Lingo’s postal addressesare:
Lingo, Inc.
433 E. Las Colinas Blvd., Suite 500, Irving, TX 75039
Customer Service Center - Atmore, AL
102 Brookwood Rd., Atmore, AL 36502
18. Intellectual Property
All portions of the Services and Equipment and any firmware or software used to provide the Services or provided to you in conjunction with providing the Services, or embedded in the Equipment, and all Services, information, documents, and materials on related website(s) are the property of Lingo or third-party providers and are protected by trademark, copyright, or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively "Marks") of Lingo or third-party providers are and shall remain the exclusive property of Lingo or third-party providers, and nothing in this Agreement shall grant you the right or license to use such Marks.
19. Dispute Resolution
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) In this Section 19, references to "Lingo" "you," and "us" include our respective subsidiaries, affiliates, providers, and the agents, employees, predecessors in interest, successors, and assigns, of any of these as well as all authorized or unauthorized users or beneficiaries of the Services or Equipment under this or prior Agreements between us.
Most concerns can be resolved quickly by contacting Customer Service as specified in Section 17above. If we cannot agree on an informal resolution, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court, and is subject to very limited review by courts. Arbitrators can award the damages that a court can award subject to any limitations specified in these Terms. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
(b) Arbitration Agreement
(1)IF YOU THINK THERE HAS BEEN AN ERROR IN A CHARGE POSTED TO YOUR ACCOUNT OR YOU HAVE A DISPUTE ABOUT OUR SERVICE, YOU MUST FIRST NOTIFY US WITHIN THIRTY (30) DAYS AFTER THE CHARGE IS POSTED TO YOUR ACCOUNT BALANCE.
IF WE HAVE NOT RESOLVED THIS DISPUTE TO YOUR SATISFACTION, ANY CLAIM OR DISPUTE ARISING OUT OF THIS OR ANY OTHER MATTER RELATING TO THIS AGREEMENT, MUST BE BROUGHT WITHIN TWO YEARS AFTER THE DATE ON WHICH THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES.
(2)Lingo and you agree to arbitrate all disputes and claims arising out of or relating to any aspect of the Service in non-class, non-consolidated arbitration proceedings. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
•claims arising out of or relating to any aspect of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
•claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
•claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
•claims that may arise after the termination of this Agreement.
Notwithstanding the foregoing, either party may bring an individual law suit (instead of arbitration) but only in small claims court.
This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf.
(3)Waiver of Certain Punitive Damage Claims. The arbitrator will have no authority to award consequential, incidental, punitive, or exemplary damages. Both you and Lingo expressly waive any rights to any such damages, whether the proceeding takes place before an arbitrator or court of law. To the extent such damages may not be so waived, if an arbitrator or judge decides to award such damages they shall be limited to the total amount of the Service fees paid during the immediately preceding twelve (12) month period. Unless applicable substantive law provides otherwise, each party pays its own expenses to participate in the arbitration or legal proceeding, including attorney"s fees and expenses for witnesses and production and presentation of evidence. All waivers specified in this Section applyeven if these Terms are amended or modified and they will survive termination of this Agreement.
(4)Waiver of Jury Trial; Jurisdiction. IF FOR SOME REASON THESE ARBITRATION REQUIREMENTS DO NOT APPLY, YOU AND WE EACH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY. INSTEAD, A JUDGE WILL DECIDE ANY DISPUTE. YOU AGREE TO SUBMIT YOURSELF TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS.
(5)A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Lingo should be addressed to: General Counsel, Lingo, Inc. 433 E. Las Colinas Blvd., Suite 500, Irving, TX75039 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Lingo and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Lingo may commence an arbitration proceeding.
(6) All administrative fees and expenses of an arbitration will be divided equally between you and us. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Lingo and you agree otherwise, any arbitration hearings will take place in the county of your billing address. If your claim is for US$10,000 or less, you and we agree that the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic hearing, or, if you and we agree, by an in-person hearing. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of fees and costs will be governed by the AAA Rules. In such case, you agree to reimburse Lingo for these fees and costs. Each party bears the expense of its own preparation and presentation of evidence at the arbitration hearing, including the expense of its own counsel, experts, witnesses and other preparation.
(7) The arbitrator may award declaratory or injunctive relief. The arbitrator may not award punitive or exemplary damages. The arbitrator may award a monetary award in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND Lingo AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Lingo agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding anything in this Arbitration Agreement to the contrary, if this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Any arbitration shall remain confidential. Neither you nor Lingo may disclose the existence, content or results of any arbitration or award, except as may be required by law, or to confirm and enforce an award.
20. Assignment
Lingo may assign this Agreement and its rights and obligations hereunder or pertaining to the provision of the Services, or parts thereof, to a parentor affiliated company or to a successor in interest, with or without notice to you, unless required by law. You may not assign this Agreement or your rights or obligations hereunder or pertaining to the Services or any parts thereof without the written consent of Lingo.
21. Privacy and CPNI
Lingo’s Privacy Policy (including information relating to Customer Proprietary Network Information (CPNI))may be found at http://www.impactconnect.com/support/legal/privacy. We may also monitor or record our calls with you for training or quality assurance.
22. Usage Limitations
You agree that you will NOT use Lingo Residential Service as a business service or for a business purpose.
Further, you agree that you will NOT use your LingoResidential or Small Business Service:
1.To engage in conference calling, monitoring services, data transmissions, transmission of recorded material,auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for other connections that do not consist of uninterrupted live dialog between two individualsor for uses that result in excessive usagepatterns inconsistent with normal Residential or Small Business use. In addition, connection of your LingoService to a device which converts use of the Service to an outbound trunk line for use by more than one individual is prohibited.
2.As an announcement service, particularly with regard to Lingomessaging, which is provided as an integral component of LingoService and is designed as a voicemail, not an announcement, service. You agree that you will not use our voice and messaging services to send messages that (a) contain advertising or a commercial solicitation, (b) are bulk messages (c) are automatically generated; (d) can disrupt Lingo's network; (e) interfere with another customer's use or enjoyment of Lingo's Services; (f) generate significant or serious customer complaints, or (g) falsify or mask the sender/originator of the message. Use of Lingomessaging Service as an announcement service and/or other improper or excessive use may impair Lingo's ability to provide reasonable service to other customers.
3. For conduct that Lingo believes (a) is illegal, fraudulent, harassing, abusive, or intended to intimidate or threaten; (b) constitutes a violation of any law, regulation, or tariff (including, without limitation, copyright and intellectual property laws); or (c) is a violation of the Terms or this Service Schedule.
4. For usage that is inconsistent with normal industry traffic blend of RBOC, cellular and non-RBOC usage or that constitutes excessive usage to high cost destinations such as Alaska and Hawaii.
Compliance with Laws. Customers shall comply with all Federal, state and local laws and regulations applicable to its business operations and use of the Services, including, without limitation, laws and regulations relating to data protection, privacy, do–not-call restrictions, CAN-SPAM, unsolicited faxes, anti-pornography. Customer agrees to abide by the acceptable use policies of Lingo and underlying providers, as applicable.
If Lingo determines, in its sole discretion, that you are reselling or transferring LingoService or that you are using LingoService for any of the aforementioned activities, or that your usage is excessive or unreasonable, Lingo reserves the right, without advance notice, immediately to terminate, suspend or modify the Service, or to change your calling plan to a different offer on a prospective basis, including to one with no unlimited usage components or to one with with higher rates, and in addition, to assess additional charges for each month in which excessive usage occurred. If you subscribe to a calling plan which includes unlimited calling of any type, UNLIMITED DOES NOT MEAN AND DOES NOT PERMIT EXCESSIVE OR UNREASONABLE USE. Lingo reserves the right to cancel your LingoService at any time, with or without notice, if, as determined solely by Lingo, based on its network/service design and usage experience, your service is (1) consistently generating excessive usage, or (2) affecting Lingo's ability to provide reasonable service to other customers.
23. Force Majeure
Other than with respect to Customer’s failure (a) to make payments when due, (b) provide any required security or (c) implement Security Measures, neither Lingo nor Customer shall be liable for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by, or due to any cause beyond its reasonable control, including, but not limited to, fire, earthquake, flood, water, the elements, acts of God, third party labor disputes, utility curtailments, cable cuts, power failures, explosions, civil disturbances, vandalism, governmental actions, shortages of equipment or supplies, or unavailability of transportation. Lingo shall be excused from its failure to perform any obligation to the extent such failure is caused by Customer’s delay.
24. Regulatory Modifications
If the Federal Communications Commission, a state Public Utility or Service Commission, a court of competent jurisdiction or other governmental entity issues a rule, regulation, law or order that has the effect of canceling, changing or superseding any material term or provision of the Service (“Regulatory Requirement”), we may modify, discontinue or limit the Service, or impose requirements, as necessary to meet changing regulatory rules and standards.
25. General Terms
(1)These Terms do not provide any third party with a remedy, claim, or right of reimbursement.
(2)These Terms (including the contents of any Service Schedules, Service Orders, marketing materials or offers, Lingo Websites, tariffs, price lists, signed contracts, policies, service level guidelines, or other documents referenced herein and applicable to your Service) constitute the entire agreement between Lingo and Customer and supersede any prior agreements and representations between CustomerandLingo with respect to the subject matter of these Terms, the Services and Equipment.
(3) These Terms and the relationship between you and Lingo will be governed by the law of the State of Texas except to the extent such law is preempted by or is inconsistent with applicable federal law.
(4)The failure of Lingo to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(5)If any provision of these Terms is found by a court or agency of competent jurisdiction to be unenforceable, you and we nevertheless agree that the remaining provisions of these Terms shall remain in full force and effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that provision is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
(6)To the fullest extent permitted by law, you and Lingo agree 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 these Terms must be filed within two (2) years after such claim or cause of action arose or be forever barred.
(7)The section titles and paragraph headings in these Terms are for convenience only and have no legal or contractual effect.
(8)Lingo will comply with all applicable federal, state and local laws, to the extent that such laws apply to Lingo and its obligations under the Terms. If there is any conflict between the Terms and such applicable law, such applicable law controls.
(9)All sections relating to confidentiality, limitation of liability, indemnity and other terms that by their nature and import are intended to survive, shall survive the termination or expiration of the Service or any Service Term or Service Schedule or this Agreement.
Dated: October 16, 2013
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