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TERMS AND CONDITIONS OF ITALKBB HOME PHONE SERVICE
 
This agreement ("Agreement") is between iTalk Global Communications, Inc. ("iTalkBB") and an end user ("you," or "Customer") of iTalkBB's communications services and any IP telephone, analog telephone adapter or any other IP connection device or related products or services ("iTalkBB Home Phone Service" or "Service").
 
ADDITIONAL OR CONFLICTING TERMS AND CONDITIONS ON ANY DOCUMENT RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT ARE HEREBY REPLACED BY THIS AGREEMENT.
 
This Agreement is made when we agree to accept your application for the Service and is made where we review your application, being Austin, Texas.
 
The terms and conditions in this Agreement and the rates and charges for the Service, which may be found at http://www.iTalkBB.com apply to all Services applied for on and from September 15, 2013 and are subject to change in accordance with Section 9 below. For all Services applied for before that date, the terms and conditions in this Agreement will replace the existing terms and conditions with effect from September 15, 2013. For the most current rates and charges, the most current version of the Agreement, or if you have questions about your Service, please visit our website at http://www.iTalkBB.com.
 
 
 
For a non-contract Plan Service
The Service is offered on a monthly basis beginning on the earlier of:
(a) the date that is seven (7) days after the date you sign up for the Service (online or via the phone); and
(b) the date you place your first call using the Service ("Activation Date").
 
The Service is automatically renewed each month on the anniversary of the Activation Date ("Auto-Renewal Date"). You may terminate your Service by giving iTalkBB at least 30 days' notice that you wish to terminate the Service. Such termination will be subject to Section 7 (with respect to the Deactivation Charge) below. Termination will be effective from the later of the next Auto-Renewal Date or 30 days from the date we receive your termination notice.
 
For a contract Plan Service The Service is offered for 1 year ("Contract Term") beginning on the earlier of: (a) the date that is seven (7) days after the date you sign up for the Services (online or via the phone); and (b) the date you place your first call on the iTalkBB Service ("Activation Date"), and is offered until the end of the Contract Term, unless earlier terminated by you, or us, in accordance with this Agreement.
 
If either party does not wish to continue the Service on a month-to-month basis after the end of the Contract Term, it must give the other party at least 30 days' notice before the end of the Contract Term. If neither you nor we give such notice, the Agreement will continue on a month to month basis after the end of the Contract Term. We will continue to supply the Service to you on a month to month basis in accordance with the Agreement until either party gives the other party 30 days' notice to terminate the Agreement.
 
 
To provide the Service, iTalkBB will arrange for the delivery to you, at no additional charge, of the phone adaptor you will need to use for the Service ("Equipment"). You will own and bear all risk of loss for theft, casualty, or damage to the Equipment from the time it is delivered to you. You agree not to change any serial number or Equipment identifier, or to alter any Equipment without the express written consent of iTalkBB. iTalkBB reserves the right to terminate your Service should you tamper with the Equipment (and if we do so, you will be responsible for all relevant termination related charges in the then current service period plus any Early Termination Fees and Deactivation Fees).
 
iTalkBB Home Phone Service is not intended to be used as a regular telephone service. iTalkBB Home Phone Service is a voice service where, generally, the call is carried over a broadband internet connection. You are responsible for arranging and maintaining a broadband service suitable for iTalkBB Home Phone Service. If your internet is not functioning properly for any reason, including where there is a power failure, data congestion, throttling, or other internet outage, iTalkBB Home Phone will not function or will not function correctly.
 
The Service does not have the same function for dialing emergency numbers as regular telephone services. If you dial 000 or other nationally recognized emergency service numbers while using the iTalkBB App Service, you will not be connected to an emergency operator, and neither your phone number nor your location will be reported to an emergency operator. In an Emergency you should always use a standard phone service or a mobile phone to call emergency service numbers. The Service will not be free from faults or interruptions. Certain factors, such as network congestion, maintenance, technical capabilities, geographic factors, obstructions, our reliance on systems and services that we do not own or control, or interference may mean you will not receive the Service at certain times.
 
 
Trial Period
Subject to the restrictions set out in this section, iTalkBB offers a thirty (30) day trial period ("Trial Period") to new Customers for each Service which is activated on a Customer's first iTalkBB account. The Trial Period only applies to the Service for which you register at the time your first iTalkBB account is created and does not apply to any additional services you sign up for after this time. The Trial Period for a Service commences on the Activation Date regardless of whether you are on a contract or non-contract Plan. If the Trial Period applies to a Service and you are not satisfied with the Service, you may terminate the Service at any time during the Trial Period. If you do so, you may be entitled to a refund (see below) and/or a waiver of the Deactivation Fee (see section 7). The Trial Period refund does not apply to Toll Charges.
 
Trial Period Service Fees refund
The amount of the Trial Period refund will be calculated based on your usage during the Trial Period as follows:
(a) Customers using fewer than 500 minutes during the Trial Period will receive the refund of the full amount of monthly Service fees previously charged to the Customer's credit card or bank account.
(b) Customers using 500 or more minutes during the Trial Period will not receive a refund of the monthly Service fees.
No charges for Toll Calls are refunded to any Customer at any time.
Early Termination Fees do not apply if Customer terminates a Service during the Trial Period.
 
You must ensure that anyone who uses the Service complies with your obligations under this Agreement as you will remain responsible and liable for their actions.
 
iTalkBB Reasonable Residential Use Policy
iTalkBB has developed the following Reasonable Residential Use Policy to describe permissible uses of its Service and to prevent exploitation, fraud, and abuse of its unlimited calling plans and features. This policy is applicable to all iTalkBB Home Phone Services. If your Plan is not titled a "Business" Plan, it is a residential Plan. This Policy does not apply to iTalkBB business Plans.
 
Reasonable Residential Use
Unless you have purchased an iTalkBB Small Business Plan, you acknowledge that you have purchased residential services and features under one of iTalk's plan offerings ("Plan") for your personal, residential, non-business and non-professional use. You agree that iTalk's residential service is intended for use by you and your immediate family only. If your Plan allows you to extend the Service or feature(s) to one or more mobile, land or VoIP numbers, such use is also considered to be use under the Plan and subject to iTalk's Reasonable Residential Use Policy.
 
Impermissible Use(s)
Unless you have purchased an iTalkBB Small Business Plan, you acknowledge that you have purchased residential services and features under one of iTalk's plan offerings ("Plan") for your personal, residential, non-business and non-professional use. You agree that iTalk's residential service is intended for use by you and your immediate family only. If your Plan allows you to extend the Service or feature(s) to one or more mobile, land or VoIP numbers, such use is also considered to be use under the Plan and subject to iTalk's Reasonable Residential Use Policy.
 
Each of the following is considered to be outside normal residential use:
  • use of the Service by other people who are not members of your immediate family residing in your home
  • business use of any type, including home office businesses
  • operating a customer care, support or call center
  • resale of the Service to others
  • auto-dialing or fax/voice blasts
  • telemarketing
  • all other non-residential uses
 
Monthly usage which is 30% higher than the average usage by iTalkBB residential customers may be considered unusual and excessive usage and may be subject to evaluation by iTalkBB. In addition, certain types of usage involving specific numbers called, average call durations, forwarding and transferring, conferencing and multiple calls of unusually short duration may, constitute impermissible use(s) of the Service under this Policy.
 
Based on these types of factors, iTalkBB may determine that abnormal, unreasonable or impermissible usage is occurring, and may take steps as described below to enforce this Reasonable Residential Use Policy.
 
iTalkBB's Enforcement of the Reasonable Residential Use Policy
iTalkBB reserves the right to review and evaluate all customer accounts and to take action if an account is in possible breach of iTalkBB's Reasonable Residential Use Policy or involves impermissible, detrimental or unlawful use. iTalkBB may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers. If iTalkBB reasonably believes that any customer's use is outside of its Reasonable Residential Use Policy, iTalkBB may contact you to tell you this and ask you move to a more appropriate business Plan or accept paying more appropriate rates for your actual usage. iTalkBB may contact a customer who iTalkBB reasonably considers is breaching the Reasonable Residential Use Policy to request the customer to cease the usage in question within 30 days or move to a more appropriate pricing plan. If the usage is in breach of the Reasonable Residential Use Policy continues after 30 days and the Customer has not agreed to move to more appropriate pricing or to change their usage to a level iTalkBB reasonably considers to be consistent with the Reasonable Residential Use Policy, iTalkBB may suspend or terminate the Service with or without notice and charge the Customer any applicable Early Termination Fees.
 
Changes to the Reasonable Residential Use Policy
iTalkBB reserves the right to change its Reasonable Residential Use Policy at any time without notice. Any such changes shall become effective when posted to iTalkBB's websites.
 
For Lawful and Appropriate Purposes Only
You may not use our Service or Equipment in any way that is illegal, fraudulent, improper or inappropriate. You may not use any automated means to manipulate our Service or use our Service to violate any law, rule, regulation or any third party's intellectual property or personal rights. You must also comply with any reasonable directions given by us with respect to your use of the Service or Equipment. This section applies to all iTalkBB Plans, including, without limitation, the iTalkBB Small Business Plan. If you breach your obligations under this section, iTalkBB may take all necessary action, including as set out under section 6.
 
 
iTalkBB will not provide you with a paper bill except in special circumstances, at its discretion. You may check the billing details online via your online account.
 
Credit Card Payment. If Customer wishes to pay for a Service with a Credit Card, Customer must provide iTalkBB with a valid credit card number from an accepted issuer (see iTalkBB's website for accepted issuers). Customer authorizes iTalkBB to charge the credit card number ("Credit Card") for all charges arising from Customer's use of the Service. Customer shall notify iTalkBB of any change to the Credit Card information including, without limitation, changes in account number, expiration date and billing address.
 
Bank Account Direct Debit Payment. If Customer wishes to pay for a Service with direct debit, Customer must provide iTalkBB with a signed Direct Debit Request and Authorisation Form with valid bank account details from an accepted issuer (see iTalkBB's website for accepted issuers).
 
Customer authorizes iTalkBB to charge the bank account ("Bank Account") for all charges arising from Customer's use of the Service. Customer shall notify iTalkBB of any change to the Credit Card or Bank Account information including, without limitation, changes in account number and bank, expiration date and billing address. The first time you provide your Bank Account or Credit Card details to iTalkBB without having previously paid any fees or if you modify your Bank Account or Credit Card details, you authorize iTalkBB to charge that Bank Account or Credit Card AUD2.01 as the bank verification fee. The amount will be refunded to your BB account after the verification is successful. Your bank may charge you an overseas charge when you are charged by iTalkBB. We will refund you the total amount of such overseas charges which are solely related to your payment for the Service if you provide us with a copy of the relevant bank statement showing the date and amount of such charges.
 
Invoicing. iTalkBB will provide you with a monthly on-line invoice for the Service and bill all charges invoiced to your account to the Credit Card or Bank Account provided by you to us. The charges may include Equipment fees, monthly Service fees, , shipping charges, Early Termination Fees, Toll Charges, taxes and all other applicable charges. Your monthly Charges commence from the Activation Date and are billed in arrears. Any Toll Charges and other applicable charges will be billed in arrears, unless your Toll Charges exceed AUD20.00 as set out below. All fees and charges must be paid by the due date on the relevant invoice or late fees as set out below will apply.
 
Deposits. Deposits, if applicable, are charged at the time of purchase and are invoiced whenever the deposit is reduced by usage to AUD5.00. For example, we will charge you a deposit if you notify us that you wish to make calls from your mobile phone which is connected to a Plan and incur Toll Charges. Deposits may be forfeited, at iTalkBB's discretion if the Agreement has been terminated under section 6(a) or 6(c). The balance of any deposit will be repaid to you within 10 days of the end of your Contract Term so long as the Agreement has not been terminated under section 6(a) or 6(c), or within 10 days of the Agreement being terminated under section 6(b).
 
iTalkBB reserves the right to charge Customer's Credit Card or Bank Account for the total amount owing for Toll Charges at any time during a service month if Customer's Toll Charges exceed AUD20.00. Billing for monthly Service fees, deposits and other applicable charges commences upon purchase of the Service, and the first month's monthly Service fees will be prorated to take into account any partial month of Service.
 
Toll Charges. All calls to or from Equipment using the Service that originates or terminates in the Public Switched Telephone Network are subject to the then applicable toll charges that are associated with your Plan ("Toll Charges"). For example, this includes international calls which you make from a mobile phone number which is attached to a Plan and are not included in your Plan. All calls to destinations outside Australia to a party that is not an iTalkBB Customer will be charged at the then current international rates published on iTalkBB's website. The duration of each call will be calculated in one minute increments.
 
Telephone Numbers. Any telephone number provided to Customer by iTalkBB is leased and not sold. Customer may not use such number with any other device other than the Equipment without the express prior written consent of iTalkBB. iTalkBB 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. iTalkBB cannot guarantee connection to any China DID from all cities and regions in China. iTalkBB further cannot guarantee uninterrupted service on China DIDs.
 
Billing Disputes. Customer must dispute any charges for the Service within ninety (90) days starts from the day that their invoice is available online. Customer understands and agrees that Customer's failure to dispute any charges with the ninety (90) day time period constitutes a waiver of all claims to any dispute. You must pay all undisputed portions of the charges by the due date.
 
Late Payment - Non-Payment. If any charges for the Service are due but unpaid for any reason including, without limitation, non-payment or declined Credit Card or Bank Account charges, iTalkBB may suspend or terminate the Service and all accrued charges shall immediately be due and payable, and will 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 or Bank Account which you have provided to us, Customer will also be charged a late fee of ten dollars (AUD10.00). Neither suspension nor termination of the Service shall relieve Customer from the obligation to pay all amounts owing to iTalkBB under this Agreement.
 
Taxes. Prices, fees and rates for Service and Equipment do not include customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes. All such taxes, which are applicable, shall be paid by Customer and will be added to any amounts otherwise owing by Customer under the Agreement. Taxes shall be included in any refund to Customer under the Agreement if a refund is available to iTalkBB.
 
Credits. Customer acknowledges and agrees that the Service is provided "as is". No credit allowances shall be made for interruption of the Service.
 
Promotions. iTalkBB 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 Service.
 
Applicable Surcharges. Independent third party merchant banks, credit and debit card issuers and processors, and other financial institutions may charge administrative fees, processing surcharges, equipment maintenance and management fees for services that iTalkBB is required to pay in order to enable your payment to iTalkBB. These charges may be assessed to you as a flat monthly fee, a percentage of your iTalkBB Home Phone monthly service charges or both, and may change from time to time without notice. You are responsible for all such fees and charges, now in force or enacted in the future, that arise from your subscription for iTalkBB Home Phone Service. Such charges are in addition to your iTalkBB Home Phone Service charges and will be charged to your account according to the plan or payment method you have selected.
 
 
(a) iTalkBB has the right to suspend, restrict or terminate your Services (at its discretion) at any time if:
 
you are in material breach of this Agreement; and
we have notified you in writing of your breach of the Agreement and
you have failed to remedy the breach within 7 days of the notification; or
the breach cannot be remedied (in which case we can terminate the Service immediately upon giving you notice).
 
You will be in material breach of this Agreement if you:
do not pay the charges for your Service, including where payment is made by direct debit or Credit Card, and the direct debit or Credit Card is declined for any reason;
use your Service in a way which we reasonably believe is fraudulent, poses an unacceptable risk to our security or network capability or is illegal or likely to be found illegal; or
breach your obligations under the iTalkBB Reasonable Residential Use Policy.
 
(b) iTalkBB can suspend, restrict or terminate your Service (at its discretion) by notifying you with as much warning as we reasonably can if:
• iTalkBB is required by law to do so;
• the Service becomes illegal or iTalkBB reasonably believes that it may become illegal;
• there is an emergency which affects our ability to provide the Service;
• we reasonably believe that providing the Service may cause death, personal injury or damage to property; or
• we are not able to provide the Service to you due to an event outside our reasonable control (e.g. equipment failure where we do not own or operate the equipment, there is an industrial strike or an act of God).
 
(c) iTalkBB can also suspend, restrict or terminate your Service (at its discretion) by telling you with as much warning as we reasonably can if:
• you become bankrupt or insolvent or appear likely to do so; or
• we reasonably consider that you pose an unacceptably high credit risk to us e.g. a history of multiple late payments, dishonoured payments, failure to pay.
If the Service is terminated by iTalkBB under section 6(b), you will be liable for all Service fees accrued through the date of termination and any unbilled charges.
If the Service is terminated by iTalkBB under section 6(a) or 6(c), you will be liable for the Service fees which apply for the full month in which the termination occurs, unbilled charges and Early Termination Fees and Deactivation Fees as set forth below (See Early Termination and Deactivation Fees) and all such charges shall be immediately due and payable.
Customer shall be responsible for the full monthly Service fee for the month in which notice of termination is received. Early Termination and Deactivation Fees may apply to termination as set forth below (See Early Termination and Deactivation Fees).
 
 
Early Termination Fee
 
If you sign up to a contract Plan and give notice to iTalkBB to terminate the Service within the Contract Term after the Activation Date and after expiration of the Trial Period, iTalkBB shall charge an early termination fee to Customer's Credit Card or Bank Account ("Early Termination Fee") in the amount of AUD100.00. The Early Termination Fee will not apply after the end of the Contract Term.
 
Deactivation Fee
 
Regardless of whether you are on a contract or off contract Plan, an AUD59.99 deactivation fee ("Deactivation Fee") will apply if you cancel a Service at any time, including during the Trial Period, unless you:
 
(a) call iTalkBB within thirty (30) days of the Activation Date for your Service/s on 1800 482 552 and obtain an Equipment return authorization number from iTalkBB's customer care department; and
 
(b) mail the Equipment to our Return Department at Unit 1, Level 10, 10 Queens Road, Melbourne, VIC 3004 within seven (7) days after calling to terminate the Service (the parcel must be post marked within the seven (7) day period) in its original condition, including packing materials with bar codes intact and all accessories which were originally shipped to you.
 
We will waive the Deactivation Fee if you return the Equipment to iTalkBB and iTalkBB receives the Equipment as described above within fifteen (15) days of the termination date (i.e. the date you contacted iTalkBB to obtain an Equipment return authorisation form).
 
1 Changes in Plans
 
If you are on a contract Plan, you cannot downgrade your Plan to a cheaper monthly Plan or change to a Plan which is not on contract during the Contract Term, without paying the relevant Early Termination Fee.
 
 
iTalkBB reserves the right to change the Agreement, Service or Plan at any time ("Change"). All Changes will be posted on iTalkBB's website thirty days before the effective date of the Change, except that iTalkBB reserves the right to make immediate changes to its Reasonable Residential Use Policy as set out in Section 4. If we consider that a Change may have major detrimental impact on you, we will contact you to notify you of the change. For all Changes which are not major detrimental Changes, notice is deemed received by Customer and Changes will be binding on Customer on the effective date of the Change(s) as posted on the website. If you can show that any Change has more than a minor detrimental impact on you, we will let you cancel the contract for the Service by only paying the charges accrued up to the date of termination, any installation fees and the Deactivation Fee (if it is not waived under section 7). In all other cases, if you elect to terminate the Service, you will be liable for all amounts due and an Early Termination Fee, if applicable. Customer may, at any time, request a change of Plan subject to paying the charges associated with such change of Plan. iTalkBB may reduce its fees for Service or Plans without prior notice to Customer. You must pay all subscription fees applicable to the plan for which you have registered. Failure to pay subscription or usage charges may result in the suspension or termination of your Service as set out in Section 6.
 
 
You are entitled to a Customer Service Guarantee (CSG) of times to connect services and repair faults. You are not obliged to waive the CSG but if you do not agree to do so, we may refuse to provide the Service to you or the cost for the relevant Plan may be higher.
 
 
iTalkBB provides technical support for the Service and Equipment described in this Agreement during its normal business hours.
 
 
Nothing in this Agreement excludes or limits any liability iTalkBB may have to you under the Australian Consumer Law. Subject to these rights, iTalkBB is not liable to you for any special, incidental, indirect or consequential loss, or for any loss of revenue, profit, data, content, anticipated savings or loss of value or equipment arising out of or related to this Agreement.
 
If you are on a business plan, our liability to you under the Australian Consumer Law is limited to (at our option), for goods: replacing, repairing or resupplying goods or paying for that to occur, and for services: supplying them again or paying to have them supplied again.
 
We are not liable for:
any loss caused by you or that results from your failing to take reasonable steps to minimise your loss;
any loss or damage to which you have contributed, to the extent of the contribution; and
any liability in contract, tort (including negligence) or otherwise for any interruptions to the Service or for suspending or terminating the Service in accordance with the Agreement, except for any liability under the Australian Consumer Law.
 
Reimbursement. Customer hereby agrees to reimburse iTalkBB and its officers, directors, shareholders and affiliates from and against any and all costs or expenses they incur arising from any intentional act or omission by Customer or others authorized by Customer to use the Service, which may or may not be in breach of this Agreement, (including, without limitation, claims for libel, slander, invasion of privacy or infringement of copyright arising out of material, data or information transmitted via the Service).
 
 
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 non-exclusive personal and subject matter jurisdiction of the courts of the State of Texas.
 
 
All software utilized or provided by iTalkBB in connection with the Service or Equipment shall be and at all times remain the sole property of iTalkBB and are protected by copyright laws and international treaties. To the extent required in order for the Service or Equipment to be used by the Customer for the Service, iTalkBB licences the software to the Customer for the sole purpose of the Customer using the Service or Equipment as contemplated pursuant to this Agreement and during the term of the Agreement.
 
 
iTalkBB 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 reasonable control.
 
 
Customer may not assign or transfer this Agreement or its obligations hereunder in whole or in part. iTalkBB may assign this Agreement at any time and in its sole discretion.
 
 
This Agreement constitutes the entire understanding and agreement between iTalkBB and Customer and supersedes all prior written or oral agreements related in any way to the subject matter hereof.
 
Updated: September 15, 2013
 
Copyright iTalk Global Communications, Inc. 2013