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 TERMS
AND CONDITIONS OF SERVICE |
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| iTalk Global Communications, Inc. |
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This agreement ("Agreement") is between iTalk Global Communications Inc. ("iTalkBB") and an end user
("you," or "Customer") of iTalk's communications
services and any IP telephone, analog telephone
adapter or any other IP connection device or related
products or services ("Service"). All Services are
governed by the terms and conditions of this Agreement.
ADDITIONAL OR CONFLICTING
TERMS AND CONDITIONS ON ANY DOCUMENT RELATED TO
THE SUBJECT MATTER OF THIS AGREEMENT ARE HEREBY
REPLACED BY THIS AGREEMENT.
The rates and charges for the Service, which may
be found at www.italkbb.com,
are effective as of July 1, 2004 and are subject
to change. For your most current rates and charges,
the most current version of the Agreement, or if
you have questions about your services, please visit
our website at www.italkbb.com. |
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| Term |
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| Service is offered on a monthly basis
beginning on the date Customer activates service
and continues for the duration of that calendar
month. The Service is automatically renewed unless
Customer provides iTalk notification of intent to
terminate the Service not less than thirty (30)
days prior to effective date of termination as set
forth in Section 7 below. |
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| Emergency Services
- 911 Dialing |
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| The safety and security of customers is of the utmost importance
to iTalk. iTalk is happy to announce that it now offers 911 Emergency
Dialing Services to its customers. However, iTalk's Emergency Dialing
Services are VoIP based services, and therefore, are subject to
certain limitations and outage factors that are different from
traditional 911 accesses. It is important that you read, understand
and inform all residents and guests of these important limitations. |
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| CUSTOMER ACKNOWLEDGES THAT THE SERVICES DO NOT SUPPORT TRADITIONAL
911 ACCESS TO EMERGENCY SERVICES. WHERE AVAILABLE, ITALK SERVICES
DO INCLUDE E911 ACCESS TO EMERGENCY SERVICES, AND IN GEOGRAPHICAL
AREAS WHERE E911 IS NOT AVAILABLE, ITALK SERVICES INCLUDE EMERGENCY
DIALING. WHERE E911 IS AVAILABLE, A 911 CALL IS ROUTED DIRECTLY
TO 911 DISPATCHERS. WHERE E911 IS NOT AVAILABLE, 911 CALLS ARE
ROUTED TO GENERAL EMERGENCY TELEPHONE NUMBERS AND THE CALLER MAY
BE REQUIRED TO VERBALLY STATE HIS OR HER ADDRESS. THE CALL IS THEN
ROUTED TO THE APPROPRIATE EMERGENCY SERVICE DISPATCHER. ITALK ADVISES
CUSTOMER TO MAINTAIN OR ACQUIRE AN ALTERNATIVE MEANS OF ACCESSING
911 SERVICES. YOU AGREE TO ADVISE ALL HOUSEHOLD RESIDENTS, GUESTS
AND OTHER PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE
YOU UTILIZE THE SERVICE OF EACH OF THE LIMITATION OF THE ITALK
EMERGENCY DIALING SERVICE AND OF AN ALTERNATIVE MEANS OF 911 DIALING. |
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| IMPORTANT EMERGENCY DIALING LIMITATIONS: Customer understands and acknowledges that the iTalk emergency dialing feature cannot be used in conjunction with an iTalk "Virtual Telephone Number". An iTalk Virtual Telephone Number is assigned to each customer. The number always includes an area code of 899. These Virtual Telephone Numbers are NOT loaded into national emergency databases and will not function to access emergency services.
All customers must purchase a Public Switched Telephone Network
(PSTN) traditional telephone number from iTalk in order to access
iTalk Emergency Services. Customer further acknowledges that iTalk
Services do not function with outdialing services including home
security systems, medical monitoring equipment, fax machines or
satellite television systems. |
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| REGISTRATION OF PHYSICAL LOCATION
REQUIRED: For each PSTN phone number that you use for
the Services, you must provide the physical location where you
will be using the Service. When you move the Equipment (Equipment
refers to the iTalk Adapter sent to you by iTalk), you must register
your new physical location with iTalk. All 911 calls are directed
to emergency responders based upon the address you register with
iTalk. If you move the Equipment and do not register the new
physical location, emergency responders will be dispatched to
your previous physical address. |
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| SERVICE OUTAGES; BROADBAND OUTAGES;
CONGESTION; AND SERVICE INTERRUPTION: iTalk emergency
dialing services will not function in the event of a power outage
or other interruption to your electricity service until the power
supply is fully restored. Following a power disruption, you may
need to reset your Equipment before the iTalk Service, including
the emergency dialing service will function properly. Service
outages or suspensions or terminations of service by your broadband
provider or ISP will prevent the Service, including the iTalk
emergency dialing service from functioning. Any interruption
in your internet access will prevent you from placing 911 calls
during the interruption. Broadband phone service is inherently
subject to more network congestion and reduced speed in the routing
of 911 calls than traditional 911 dialing over traditional public
telephone networks. In the event that your iTalk account is suspended
or terminated for any reason, your iTalk Service, including iTalk
emergency dialing service will not function. |
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| DISCLAIMER OF LIABILITY AND INDEMNIFICATION: iTalk
does not control how 911 calls are answered or handled by any local
emergency response center. iTalk disclaims all responsibility for
the actions and conduct of any and all national and local emergency
response centers. iTalk relies entirely upon third parties to route
911 calls to local and national emergency response centers. iTalk
disclaims any and all liability or responsibility in the event
such third party data used to route the call is incorrect or produces
an erroneous result. Neither iTalk nor its office , directors or
employees may be held liable for any claim, damage or loss and
you hereby waive any and all such claims or causes of action arising
from or related to the Services unless such claims arose from iTalk's
gross negligence, recklessness or willful misconduct. You, on your
own behalf and on behalf of any third party, hereby agree to defend,
indemnify and hold harmless iTalk, its officers, directors, employees
and agents from and against any and all claims, losses, damages,
fines, penalties, costs and expenses (including attorneys' fees)
relating to the absence, failure or outage of the Service, including
the iTalk emergency dialing service or access to emergency service
personnel. |
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| UNDERSTANDING, ACKNOWLEDGEMENT AND
ALTERNATIVE 911 SERVICE: You hereby acknowledge your understanding
of the limitations of the iTalk emergency dialing services described
above. In the event that you are not completely comfortable with
the limitations of the Service, including the iTalk emergency
dialing service, you should immediately take action to acquire
an alternative means to access 911 services or you should immediately
terminate the Services. |
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| Equipment
and Devices |
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| To provide Services, iTalk may provide
equipment or IP devices to Customer ("Equipment").
All shipments are F.O.B. iTalk's facilities. You
shall be the owner of the Equipment, and bear all
risk of loss for theft, casualty, or damage to the
Equipment from the time it is shipped to you until
the time (if applicable) that it is returned by
you and accepted by iTalk as described in Sections
4 and 8 below. iTalk charges an equipment deposit of $60.00 to your credit card during initial sign up. This deposit will be credited back to your account after iTalk receives the equipment and all accessories in their original conditions if you should cancel your service. Customer agrees not to change any
serial number or Equipment identifier, or to alter
any Equipment without the express written consent
of iTalk. iTalk reserves the right to terminate
Customer's service should you tamper with the Equipment
and you will be responsible for all charges in the
then current service period plus an Early Termination
Fee. |
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| Money
Back Guarantee - Trial Period - Cancellation Policy |
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| iTalk offers a thirty (30) day trial
period ("Trial Period") to new Customers
for their first iTalk account. The Trial Period
commences on the "Activation Date". The
Activation Date is the first to occur of the date
that is seven (7) days after the date customer
signs up for iTalk Service or the date Customer
places the first call on the iTalk Service. If
Customer is not satisfied with the Service, Customer
may terminate the iTalk Service at any time during
the Trial Period and obtain a refund of the activation
charges and monthly service fees. The Trial Period
refund does not apply to toll usage (charges for
calls to any country or region that is not included
in an unlimited calling plans selected by Customer)
or any local, state or federal taxes charged to
Customer. To obtain a Trial Period refund, Customer
must: (a) Call iTalk within thirty (30) days of the Activation Date at 1-877-482-5503 and obtain
an Equipment return authorization and return address
from iTalk's customer care department, and (b)
Mail the Equipment to iTalk within seven (7) days
after calling to terminate service (parcel must
be post marked within the seven (7) day period)
in its original condition including, all packing
materials with bar codes in tact, all parts and
accessories, documentation and manuals and all
other items originally shipped to Customer. Equipment
returned to our local offices will not be processed.
If iTalk does not receive the returned Equipment
within fifteen (15) days after the termination
date, no refunds will be made to Customer, the Equipment Deposit of $60.00 will not be refunded to Customer.Upon receipt of the Equipment by iTalk,
the amount of the Trial Period refund will be calculated
based on the usage by Customer during the Trial
Period as follows: (a) Customers using fewer than
500 minutes during the Trial Period will receive
a Trial Period refund in the amount of $29.99 for Activation Fee, plus $9.99 for Shipping and Handling
Fee, plus the full amount of Monthly fees previously
charged to you credit card, and (b) Customers using
500 or more minutes during the Trial Period will
receive a Trial Period refund in the amount of
$29.99 for Activation Fee, plus $9.99 for Shipping
and Handling Fee. No Monthly fee is refunded to
Customers using 500 or more minutes prior to termination.
No charges for toll calls are refunded to any Customer
at any time. Early Termination Fees do not apply
if Customer terminates Service during the Trial
Period and all conditions of this Section 4 are
satisfied. |
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| Service
- Usage |
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Unless Customer purchases iTalk Small
Business Plan, Customer acknowledges that he or
she has purchased residential services under one
of iTalk's plan offerings ("Plan") for
Customer's personal, residential, non-business and
non-professional use. Customer agrees that the Services
are not intended for any commercial or governmental
activities, including without limitation to home
office, business, sales, tele-commuting, telemarketing,
autodialing, fax broadcast, fax blasting or any
other activity that would be inconsistent with residential
use. iTalk reserves the right to terminate service
to any Customer who uses a residential plan primarily
for business purposes.
Customer agrees to use the Service and Equipment
only for lawful purposes. Customer aggress not to
use the Services for any communication of any kind
which in iTalk's sole discretion would constitute
and criminal offense or otherwise constitute a violation
of any local, state, federal or international law
or encourage conduct which would violate any such
law.
Customer may not resell or transfer the Services
or the Equipment to any other person without the
prior written consent of iTalk, which consent may
be withheld in iTalk's sole discretion.
Customer understands and agrees that the Service
is not a telephone service. Important distinctions
(some, but not necessarily all, of which are described
in this Agreement) exist between telephone service
and the Service offering by iTalk. The Service is
subject to different regulations than telephone
service. This treatment may limit or otherwise affect
your rights to redress before Federal or State agencies.
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| Billing,
Charges and Payment |
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Credit Card
Payment. Upon purchase, Customer must provide
iTalk a valid credit card number from an accepted
issuer (see iTalk's website for accepted issuers).
Customer authorizes iTalk to charge the credit card
number ("Credit Card") for all charges
arising from Customer's use of the Services. Customer
shall notify iTalk of any change to the Credit Card
information including, without limitation, changes
in account number, expiration date and billing address.
Invoicing. iTalk
will provide Customer with a monthly on-line invoice
for Services and bill all charges invoiced to Customer's
account to the Credit Card. Charges shall include,
Equipment purchases, monthly service fees, usage
fees, shipping charges, Early Termination Fees,
toll charges, taxes and all other applicable charges.
Monthly service fees are paid in advance of each
month's Service. Toll charges and other applicable
charges are billed at the end of each service month.
Deposits, if applicable, are charged at the time
of purchase and are invoiced whenever the deposit
is reduced by usage to $6.00 Canadian dollars.
iTalk reserves the right to charge Customer's Credit
Card at any time during a service month if Customer's
toll charges exceed $24.00 Canadian dollors. Billing
for monthly service fees, deposits and other applicable
charges commences upon purchase of Services, and
the first month's monthly service fees will be
prorated to take into account any partial month
of Service. Activation occurs when Customer's Equipment
is registered to iTalk's systems ("Activation").
Toll Charges. All
calls to or from Equipment using the Services that
originates or terminates in the Public Switched
Telephone Network ("PSTN") is subject
to the then applicable toll charges that are associated
with the service plan Customer has selected. All
calls to destinations outside the United States
to a party that is not an iTalk Customer will be
charged at the then current international rates
published on iTalk's website. The duration of each
call will be calculated in one minute increments.
Telephone Numbers.
Any telephone number provided to Customer by iTalk
shall be leased and not sold. Customer may not use
such number with any other devise other than the
Equipment with the express prior written consent
of iTalk. iTalk reserves the right to change, cancel
or move the number in its sole discretion. The availability
of all China DID numbers is subject to and dependent
upon the network facilities and regulatory environment
in China. iTalk cannot guarantee connection to any
China DID from all cities and regions in China.
iTalk further cannot guarantee uninterrupted service
on China DIDs.
Billing Disputes. Customer
must dispute any charges for the Services within
thirty (30) days of receipt of the monthly on-line
invoice. Customer understands and agrees that Customer's
failure to dispute any charges with the thirty (30)
day time period constitutes a waiver of all claims
to any dispute.
Late Payment - Non-Payment.
If any charges for Services are due but unpaid
for any reason including, without limitation, non-payment
or declined Credit Card charges, iTalk may suspend
or terminate the Services and all accrued charges
shall immediately be due and payable, to include
a late fee of the lesser of 1.5% or the maximum
allowed by law. If charges cannot be processed to
the Credit Card, Customer will be charged a fee
of ten dollars ($10.00). Neither suspension nor
termination shall relieve Customer from the obligation
to pay all amounts owing under this Agreement.
Applicable Regulatory Fees and Charges. Federal, provincial, municipal and local governments may access regulatory fees, emergency dialing charges, surcharges and taxes on your iTalkBB service. These charges may be a flat fee or a percentage of your iTalkBB charges and may change from time to time without notice. You are responsible for all such applicable fees and taxes now in force or enacted in the future, that arise from your subscription for iTalk services. Such charges are in addition to your iTalkBB service charges and will be billed to your account according to the plan or payment method you have selected. No such fees or charges shall be included in any refund under this Agreement.
Credits. Customer
acknowledges and agrees that the Services are provided
"as is, where is". No credit allowances
shall be made for interruption of Service.
Promotions. iTalk
may, in its sole discretion, from time to time offer
promotions or discounts on fees. Customer must enter
any promotion or discount codes upon initial purchase
of the Services. |
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| Termination
of Service |
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iTalk reserves the right to suspend
or discontinue providing the Service or Customer's
Service at any time in its sole discretion. If the
Service is terminated by iTalk in its sole discretion
and for any reason other than a breach or action
of Customer, you will be liable for all charges
accrued through the date of termination. If the
Service is terminated as a result of a breach or
other action of Customer, you will be liable for
the entire month in which the termination occurs,
unbilled charges and an Early Termination Fee as
set forth in Section 8 below and all such charges
shall be immediately due and payable.
Customer agrees to provide iTalk thirty (30) days
notice of Customers intent to terminate services.
Customer shall be responsible for the full monthly
service fee for the month in which notice of termination
is received. An Early Termination Fee may apply
to termination as set forth in Section 8 below.
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| Early
Termination Fee |
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| If Customer terminates the Service within twelve (12) months after the Activation Date and after expiration of the Trial Period, iTalk shall charge an Early Termination Fee to Customer's credit card in the amount of sixty nine dollars and ninety nine cents ($69.99). The Early Termination Fee shall be waived after Customer utilizes the Service for twelve (12) consecutive months after Activation Date. All Customers that terminate the iTalk Service will be charged on their credit card for the Equipment unless Customer takes the following actions: (a) Call iTalk at 1-877-482-5503 to terminate the iTalk Service and obtain an Equipment return authorization from iTalk's customer care department, and (b) Mail the Equipment to iTalk within seven (7) days after calling to terminate service (parcel must be post marked within the seven (7) day period) in its original condition including, all packing materials with bar codes in tact, all parts and accessories, documentation and manuals and all other items originally shipped to Customer.Equipment
returned to our local offices will not be processed.
If iTalk does not receive the returned Equipment within fifteen (15) days after the termination date, the Equipment Deposit of $60.00 will not be credited to Customer.
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| Charges
for Changes in Plans |
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| iTalk will charge Customer's credit card a Plan Change Fee in the amount of
$19.99 if Customer chooses to change Plan from any plan with a Monthly Fee of
$10.00 or more per month to any plan with a Monthly Fee less than $10.00
per month. |
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| Changes
to the Agreement, Services or Plan |
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| iTalk reserves the right to change
the Agreement, Services or Plan at any time ("Change").
Changes will be posted on iTalk's website thirty
days before the effective date of the Change. Notice
is deemed received by Customer and Changes will
be binding on Customer on the date such Change(s)
is posted on the website. Customer is deemed to
have accepted the Change(s) unless Customer terminates the Service prior to the effective
date of the Change or uses the Service after the
effective date of the Change. If Customer elects
to terminate the Services, Customer will be liable
for all amounts due and a early termination fee,
if applicable. Customer may, at any time, request
a change of Plan subject to charges associated with
such change of Plan. iTalk may reduce its prices
for Services or Plans without prior notice to Customer. |
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| Technical
Support |
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| iTalk provides technical support for
Services and Equipment described in this Agreement
during its normal business hours. |
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| Limitation
of Liability, Warranty and Indemnification |
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DISCLAIMER OF DAMGAES. ITALK SHALL NOT, IN ANY EVENT OR CIRCUMSTANCE, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF DATA OR CONTENT, OR ARISING OUT OF 911 OR OTHER EMERGENCY DIALING IN CONNECTIONS WITH CUSTOMER'S USE OF THE SERVICES OR EQUIPMENT PROVIDED UNDER THIS AGREEMENT.
ITALK MAKES NO EXPRESS OR IMPLIED REPRESENTATION
OR WARRANTY ABOUT ITS SERVICES OR EQUIPMENT AND
DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, WARRANTIES OR IMPLIED WARRANTIES OF
MECHANTABILITY OR FITNESS FOR A PARTICLUAR PURPOSE
OR USE. ITALK HAS NOT AUTHORIZED ANY PERSON OR ENTITY
TO MAKE WARRANTIES ON ITS BEHALF AND CUSTOMER MAY
NOT RELY ON ANY STATEMENT AS A WARRANTY BY ITALK.
Liability. iTalk
will not be liable for any failure of performance
due to any causes beyond its control or for any
power outage, internet interruption, Equipment failure,
delay in installation, activation or commencement
of Service. With respect to any other legal claim
or dispute, iTalk's liability shall be limited to
the lesser of actual damages or one thousand dollars
$1,000. iTalk will not be liable for any act or
omission by any other person or entity furnishing
services or products related to the Services or
Equipment or for damages associated with service
or equipment that iTalk does not provide.
Indemnification. Customer
hereby agrees to indemnify and hold harmless iTalk
and its officers, directors, shareholders and affiliates
from and against any and all claims, damages and/or
liability arising out of the Services or Equipment,
including, without limitation, claims for libel,
slander, invasion of privacy or infringement of
copyright arising out of material, data or information
transmitted via the Services and claims arising
out of any intentional act or omission by Customer
or others authorized by Customer to use the Service.
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| Governing
Law and Dispute Resolution |
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Governing
Law. This Agreement shall be governed by
the laws of the State of Texas without regard to
conflict of law provisions of any other state or
jurisdiction. Customer hereby consents to exclusive
personal and subject matter jurisdiction of the
courts of the State of Texas.
Mandatory and Binding Arbitration.
All claims or disputes between Customer and
iTalk arising in any way whatsoever out of the Services
or the Equipment shall be resolved by binding and
final arbitration by a single arbitrator. The American
Arbitration Association shall administer the arbitration
under the Commercial Arbitration Rules. The arbitration
shall be conducted in Austin, Texas in English language.
No arbitrator may award relief outside the limits
set herein. Customer agrees that all claims shall
be in Customer's individual capacity and that Customer
will not commence or join any class or consolidate
Customer's claim with the claims of any person or
persons. Customer hereby waives any right to a jury
trial.
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| Copyrights |
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| All software utilized or provided
by iTalk in connection with the Services or Equipment
shall be and at all times remain sole property of
iTalk and are protected by copyright laws and international
treaties. |
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| Force
Majeure |
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| iTalk shall not be liable for any
delay in performance caused by acts of God, natural
disasters, accidents, strikes, riots, war, government
actions, equipment or power failures or any other
cause beyond its control. |
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| Assignment |
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| Customer may not assign or transfer
this Agreement or its obligations hereunder in whole
or in part. iTalk may assign this Agreement at in
time and in its sole discretion. |
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| Entire
Agreement |
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This Agreement constitutes the entire
understanding and agreement between iTalk and Customer
and supercedes all prior written or oral agreements
related in any way to the subject matter hereof.
Updated: December 5, 2006
Copyright by iTalkBB.
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