THESE TERMS AND CONDITIONS OF SERVICE GOVERNING YOUR USE OF Powell Labs VOICE SERVICE INCLUDE A BINDING ARBITRATION PROVISION IN THE GENERAL TERMS AND CONDITIONS FOR Powell Labs RESIDENTIAL SERVICES, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION.
Subscriber's use of Powell Labs Voice Service (also, "Voice Service") shall be deemed acknowledgment that Subscriber has read and agreed to the Terms of Service. Subscriber must activate all Powell Labs Voice Services ordered. Powell Labs shall have no liability whatsoever if the subscriber does not activate such Services. Any user who does not agree to be bound by the Terms of Service should immediately stop their use of the Voice Service and notify Powell Labs's Customer Service Department at 1-231-928-8101 to terminate the Voice Service. Terms that are initially capitalized but not defined, will have the defined meaning given to them in the other documents referenced above. This agreement (the "Agreement") is a binding legal document that may be amended unilaterally by Powell Labs with or without notice to Subscriber.
Powell Labs regularly updates and amends these Terms of Service. Subscriber should consult Powell Labs's website www.Powell Labs.com to be sure Subscriber remains in compliance.
1. Services Provided: Powell Labs Voice Service provides unlimited and/or measured calling within the United States and to those countries and US territories described in calling plans identified in the applicable Price Guide, in accordance with these terms and conditions. Subscribers must reside in an area where Powell Labs is authorized to provide Voice Service and where, in Powell Labs's sole discretion, it is technically and operationally feasible. Residential Voice Service is only intended for use by Subscriber, Subscriber's family and guests, and persons residing at Subscriber's residential premises, including persons temporarily subleasing Subscriber's residential premises.
2. Monthly Service Fee: Subscriber agrees to pay the monthly service charge for Powell Labs Voice Service which is comprised of various fees and related taxes and surcharges. Powell Labs reserves the right to increase or decrease any fee for Voice Service offered. Fees for Powell Labs Voice Service shall be posted in the applicable Price Guide at www.Powell Labs.com, under "Terms of Service/Policies." Powell Labs Voice Service will be terminated in the event Subscriber does not pay. Certain fees for Powell Labs Voice Service are based upon periodic studies that analyze the intrastate, interstate and international minutes of all customers purchasing Voice Service.
3. Voice Service Features: Powell Labs Voice Service is offered with the features below. In certain areas, Powell Labs also offers a mobile application, "SIP PowellLabs," that allows Subscribers to use their Voice Service away from their residence with access to suitable WiFi connectivity. Certain features may not be available with the SIP PowellLabs mobile application, or may be subject to additional terms and conditions presented within the SIP PowellLabs mobile application.
a. Calling and Features: Includes local, regional and/or long distance calling within the United States and to those countries and US territories described in calling plans identified in the applicable Price Guide, along with those calling features pertaining to each calling plan. Feature availability may vary by service area. A detailed list of features and calling plans may be found in the Price Guide at www.Powell Labs.com, under "Terms of Service/Policies." Direct dialed calls outside the coverage of any calling plan are available with per-minute charges or with one of Powell Labs's International calling plans. Existing Subscribers who may purchase a plan other than a plan described in this Agreement, can find a description of their plan in the Price Guide.
b. E-911: Enhanced 911 ("E-911") is a feature of Powell Labs Voice Service that allows emergency operators to automatically receive the telephone number and address of the dialing party. This E-911 feature has certain requirements in order to operate, as well as certain limitations:
- i. IMPORTANT: The emergency service provider handling the E-911 call, and the address the emergency service provider will see, are linked to the service address Powell Labs has on file when Subscriber originally signed up for service. If Subscriber does not correctly identify where Subscriber's voice modem is actually located, or if the voice modem is moved away from the original service address, Subscriber's E-911 calls may be misdirected to the wrong location(s) or to the wrong emergency service provider(s). Therefore, in order to have E-911 calls routed correctly, Subscriber agrees not to move the voice modem from the service address at which it was installed by Powell Labs and acknowledges responsibility to promptly notify Powell Labs of any change in service address prior to moving the voice modem.
- ii. IMPORTANT: Keeping Your Phone Number: Please be aware that during the first 72 hours of arriving at Subscriber's new service address, if Subscriber dials 911 from their Powell Labs Voice Service, Subscriber must relay to the emergency service operator the new (current) service address. This is necessary to ensure emergency services are dispatched to Subscriber's new service address and not the old service address in the event the emergency services operator may not have the new location in their records.
- iii. Powell Labs Voice Service does not have its own power supply. If there is a power outage, or if there is a disruption to the cable network or facilities, the Voice Service will not work. Subscriber expressly acknowledges that in such cases it will not be possible to place or receive calls including calls to access emergency 911 services.
- iv. If Subscriber chooses, Subscriber may separately purchase a battery backup for use with the voice modem by calling Powell Labs at 1-231-928-8101. Each battery backup is designed to provide power for up to 8 hours (or 5 hours of "talk" time) for a power outage at Subscriber's residence that is not also a network-related outage.
- v. In some locations, E-911 service may not yet be available. Such services are dependent on the equipment and facilities of the local governments in which Powell Labs provides Voice Service. In such cases, regular 911 service will be available and Subscriber will need to convey the location information to the emergency operator.
c. Number of Lines: Subscribers to Powell Labs Voice Service can purchase up to two (2) lines at their service address.
d. Installation: Powell Labs Voice Service offers professional installation and self-installation (not available in all areas).
- i. Professional installation includes activation of all existing working phone jacks or the installation and activation of one phone jack if there is not currently a working phone jack in Subscriber's residence. Additional wiring charges may apply if Subscriber requests additional jacks to be installed or activated. Additional charges may also apply for special construction needed to complete the installation. Powell Labs also provides and installs a voice modem, or Multimedia Terminal Adaptor (MTA), that is used to communicate with our private communications network.
- ii. Self-installation (not available in all areas) provides the option for the Subscriber to pick-up a voice modem or MTA from a Powell Labs retail location or have that equipment shipped to their home. Upon receipt of the equipment, the Subscriber must follow self-installation instructions provided by Powell Labs. In order to qualify for self-installation the following installation conditions must be met: Subscriber's home's phone system must consist of a base unit with any additional cordless phones supported by the base unit; Subscriber's alarm, security and fax systems must not be dependent on Powell Labs Voice Service; Subscriber's most recent voice provider was Powell Labs, or Subscriber has had active Powell Labs services in the last 2 years; and Subscriber will not need outlets moved or added.
Powell Labs does not provide a handset. Subscriber is responsible for maintaining all inside wire and phones within the home. Subscriber has the option of Powell Labs's Wire Maintenance Insurance that may help avoid costly repair charges. For a low monthly fee, we can provide repair service for Subscriber's jacks and inside wiring. (The wiring must meet certified technical standards.) Wire maintenance is included in some bundles. For more information about Wire Maintenance Insurance, go online to Powell Labs's Wire Maintenance plan information at www.Powell Labs.net/wiremaintenance. In certain buildings such as multiple dwelling units, Powell Labs's technicians may not have access to Subscriber's inside wiring located within the multiple dwelling unit. In these instances, Powell Labs has the right to determine how best to wire Subscriber's residence, subject to additional applicable charges.
e. International Calling: Powell Labs Voice Service offers a per minute calling plan for direct-dialed calls made from Subscriber's residence to locations outside of their calling plan. If Subscriber chooses to use this service Subscriber will be charged for direct-dial international calls in addition to the flat monthly recurring rate that Subscriber pays for Powell Labs Voice Service. Powell Labs Voice Service also offers optional flat rate international calling plans for direct-dialed calls made from Subscriber's residence to locations outside of their calling plan. If Subscriber chooses an international plan, Subscriber will be charged a flat monthly fee for direct-dial international calls in addition to the monthly recurring rate that Subscriber pays for Voice Service. After Subscriber's monthly international calling plan minutes are used, unless Subscriber's plan includes unlimited international calling, each additional minute will be charged at a per-minute rate. For both per-minute international calling and international calling plans, calls are measured in increments of one minute. All calls which are a fraction of a minute are rounded up to the next whole minute. Timing on completed calls begins when the call is answered by the called party. Answering is determined when call signaling provided by the terminating local carrier, and/or any intermediate carrier(s), so indicate. Timing terminates on all calls when the calling party hangs up or when Powell Labs's network receives a termination signal from the terminating local carrier and/or any intermediate carrier(s). Unused minutes per month do not roll over to the next month. You may access international rates and information about international calling plans online at www.Powell Labs.net/rates.
f. Voice Service Modifications: Powell Labs may, from time to time, offer additional Voice Service features or functionality, or discontinue certain Voice Service features or functionality. Information about these features or functions will be available in the applicable Price Guide at www.Powell Labs.com, under "Terms of Service/Policies." These additional Voice Services features or functions may be subject to additional specific terms and conditions, and may be subject to change at any time by Powell Labs.
g. Caller Name: Powell Labs Voice Service will associate Subscriber's name on the Powell Labs account to the telephone number to be displayed in association with the caller name lookup services ("CNAM") provided as part of the Voice Service for all calls made from any of the Powell Labs telephone numbers on the account. In the event that Subscriber wishes to modify the caller name associated with the CNAM, Subscriber agrees to the following: caller name submission(s) shall not mislead or impersonate any person or company; caller name submission(s) shall not contain false information and shall accurately represent the name of the person that subscribes to the Voice Service and that is included in directory listings, if any; caller name submission(s) shall not contain abusive, defamatory, vulgar, obscene, racist or any other language objectionable to any person or entity as determined by Powell Labs, in its sole discretion; and caller name submission(s) shall comply with all relevant laws, rules and regulations.
4. Voice Service Limitations:
a. Service Outages: The Powell Labs Voice Service modem is electrically powered and will not work in a power outage or if the broadband connection is disrupted or not operating. In the event of power outages, the modem, including all phones and Voice Services connected to or powered by it, will not work. Power outages will disrupt E-911 service and the use of Powell Labs Voice Service as the connection between a home security system and central monitoring services. To reduce this risk, Subscriber may choose to purchase a battery backup for use in the event of a non-network related outage.
b. Home Security Systems: Although Powell Labs Voice Service will supply a connection that will allow the operation of Subscriber's existing home security system, Powell Labs does not guarantee that any such system will be in complete operational order following the installation of the Voice Service. As such, it is Subscriber's obligation to contact their home security system provider to inform them of Powell Labs Voice Service installation, and any change in phone number, and to request a complete operational test of their system immediately following installation of the Voice Service. In addition, it is Subscriber's responsibility to test their system on a regular basis. In the event of a power outage or network outage (whether unplanned or maintenance related), Subscriber's Voice Service, including any home security system which uses the Voice Service to connect to central station monitoring, will not function. As set forth in Section 3(b)(iv) above, Subscriber may separately purchase a battery backup for use with their voice modem in the instance of a non-network related outage.
Like any other communications service provider, we do not represent that our service is fail-safe. In addition, Powell Labs prohibits the use of Powell Labs Voice Service as the connection between medical alert systems and a central station monitoring service, and will neither connect to such services nor provide technical support for the connection.
c. Additional Limitations:
- i. Currently, certain operator-assisted services such as busy line verification and busy line interruption, dial around services (10-10-XXX), pay services (900 and 976 services), and third-party billing are not offered with Voice Service.
- ii. If Subscriber receives Voicemail, Subscriber may be eligible for voice-to-text or voice-to-email ("Readable Voicemail") as part of the Voicemail feature. As a result of the voice-recognition software used by Powell Labs, some processed messages may not be fully transcribed and will appear as incomplete messages. In such cases, Subscriber may obtain the full message by listening to the Readable Voicemail message. As a condition of using the voice-to-text or voice-to-email feature, Subscriber consents to allow Powell Labs, or its service vendors, to process those voice files and to use voicemail messages, and other data associated with such messages, to enhance and/or improve the feature.
- iii. Powell Labs's obligation to furnish Voice Services is dependent upon its ability to secure and retain, without unreasonable expense, suitable facilities and rights for the construction and maintenance of the necessary facilities and equipment. Powell Labs may limit communications, refuse to provide Voice Services or discontinue Voice Services when necessary because of: (i) the lack of transmission medium, transmission capacity or any other facilities or equipment; (ii) the lack of available services from, or interconnection with, the services or facilities of service providers; or (iii) any cause beyond Powell Labs's control.
- iv. Powell Labs shall use reasonable efforts to make Voice Services available by the estimated service date. Powell Labs shall not be liable for any damages resulting from delays in meeting the estimated service date due to delays resulting from normal installation procedures. Such delays shall include, but not be limited to, delays in obtaining right-of-way approvals, delays in actual construction work being done by Powell Labs, including its contractors or representatives, and any delays due to any other service provider where Powell Labs is relying upon such provider to meet an estimated due date which is beyond Powell Labs's control.
- v. Powell Labs offers the use of its facilities for communications between Subscriber and other parties. Powell Labs is not responsible, and shall have no liability, for any communications or miscommunications between Subscriber (including any users) and other parties (including operator-assisted, 911 and E-911 calls).
- vi. At Powell Labs's discretion, facilities of other service providers may be used in establishing connections to points not reached by Powell Labs's facilities. In establishing connections with other providers, Powell Labs is not responsible or liable for any action or inaction of other service providers.
- vii. The SIP PowellLabs mobile application is provided by Powell Labs for use only by Powell Labs residential Voice Service customers, and only in certain areas. Certain features of Powell Labs's Voice Service may not be available with the SIP PowellLabs application, and certain features available within the SIP PowellLabs application may be subject to additional terms and conditions as presented within the SIP PowellLabs application.
d. Equipment: Powell Labs Voice Service requires a voice modem. Powell Labs will supply a voice modem for so long as Subscriber remains a Voice Service Subscriber or until Powell Labs changes its Voice Service offering. Depending on the Powell Labs Voice Service plan, there may be a monthly charge for the voice modem. Upon termination of Powell Labs Voice Service for any reason, Subscriber may be asked to return the Powell Labs-supplied voice modem within thirty (30) days or Subscriber will be charged an equipment fee equal to the fee charged by Powell Labs at the time the voice modem was supplied by Powell Labs. An exception to this return policy is when the modem is also supporting Internet service, in which case Subscriber may continue to use the modem until such time as Internet is no longer provided or Powell Labs requests a substitution of the modem. Equipment and facilities furnished by Powell Labs to provide Voice Service (except for inside wiring and inside jacks) are the property of Powell Labs. Telephone numbers assigned to Subscriber by Powell Labs are portable and transferable with Subscriber at the same location; however, Subscriber has no property right in telephone number(s) or any other call number designations associated with the Voice Services, and Powell Labs may change such numbers as deemed necessary.
5. Term: Powell Labs Voice Service shall continue until such time as terminated by Subscriber, which shall be effective upon notice, or terminated by Powell Labs for breach (including nonpayment) of this Agreement, or otherwise terminated by Powell Labs in accordance with the Terms of Service.
6. Directory Listing: Powell Labs Voice Service offers Subscriber a Private Number service as the default, or a directory listing upon request. Depending on the location and Subscriber's preference, Powell Labs Voice Service may include one (1) basic directory listing in an alphabetical white pages directory, or other comparable online directory, containing an alphabetical list of names, telephone numbers and addresses of all telephone customers in a particular geographic area set by the publisher. The alphabetical list of customer names is for the purpose of informing interested parties of the telephone number and address of listed customers, and special position or arrangement of names may be provided for an additional charge. Listings shall conform to the publisher's practices with respect to published directories. Powell Labs limits the length of any listing in the directory by the use of abbreviations when, in Powell Labs's opinion, the clarity of the listing or the identification of the customer is not impaired by doing so. The duration of directory listings, when the listings have been published, is the directory period. The directory period is from the day on which the directory is first distributed to customers to the day the succeeding directory is first distributed to customers. Powell Labs's liability for directory listing errors or omissions is set out in Section 7, "Limitation of Liability."
7. Limitation of Liability:
a. Powell Labs Voice Service is provided "AS IS." THE LIABILITY OF Powell Labs, OR ITS SERVICE VENDORS, FOR DAMAGES OR LOSSES ARISING OUT OF THE FURNISHING OF VOICE SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR OTHER DEFAULTS, REPRESENTATIONS OR USE OF THE VOICE SERVICES, OR ARISING OUT OF THE FAILURE TO FURNISH THE VOICE SERVICE, INCLUDING E-911/911 SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, AND/OR LOSS OF ELECTRICAL POWER, SHALL BE LIMITED TO AN ALLOWANCE PRORATED FOR THE TIME PERIOD OF THE VOICE SERVICE INTERRUPTION. Powell Labs, INCLUDING ITS SERVICE VENDORS, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSSES OR DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES AND PERSONAL INJURIES THAT A SUBSCRIBER, OR SUBSCRIBER'S USERS, MAY SUFFER. FINALLY, Powell Labs, AND ITS SERVICE VENDORS, SHALL NOT BE LIABLE FOR ANY LOSS OR INTERRUPTIONS IN VOICE SERVICE OR FOR ANY DAMAGES OR LOSSES DUE TO THE FAULT OR NEGLIGENCE OF SUBSCRIBER, ANY SUBSCRIBER USER, OR ANY OTHER PARTY OR PERSON(S), OR DUE TO THE FAILURE OR MALFUNCTION OF SUBSCRIBER-PROVIDED OR USER-PROVIDED EQUIPMENT OR FACILITIES, OR DUE TO THE FAILURE OF SUBSCRIBER TO FULFILL ANY OBLIGATION UNDER THIS AGREEMENT.
b. Directory Listings. Powell Labs'S LIABILITY FOR DAMAGES DUE TO ERRORS OR OMISSIONS IN DIRECTORY LISTINGS WILL BE LIMITED TO A ONE-TIME CREDIT EQUAL TO ONE MONTH'S RECURRING MONTHLY FEE FOR THE VOICE SERVICE (NOT INCLUDING ONE TIME CHARGES, MEASURED AND PER-CALL CHARGES AND RELATED TAXES AND FEES). SUBSCRIBER AGREES TO INDEMNIFY AND HOLD Powell Labs HARMLESS AGAINST ANY AND ALL CLAIMS FOR DAMAGES CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE PUBLICATION OF A LISTING WHICH SUBSCRIBER HAS REQUESTED TO BE OMITTED FROM THE APPLICABLE WHITE PAGES DIRECTORY, INCLUDING ANY ONLINE DIRECTORY, OR THE DISCLOSING OF SUCH A LISTING TO ANY PERSON (INCLUDING ANY MISTAKE OR ERROR IN SUCH LISTING).
8. Installation: Charges for installation services and equipment will be charged at the then current rate in effect.
9. Taxes: Applicable fees, taxes and surcharges, if any, will be added to Subscriber's monthly bill. For non-Powell Labs Pricing Plan packages, applicable fees, taxes and surcharges, will be disclosed on your monthly bill in addition to the Voice Service rate. For Powell Labs Pricing Plans, applicable fees, taxes and surcharges will be included in the monthly rate you pay and disclosed in the Billing Information section of your bill.
10. Proprietary Rights: Powell Labs and/or its service vendors own all rights in and to the Voice Services. Subscriber has a limited right to use the Voice Service in accordance with these Terms of Voice Service. However, the Terms of Service do not grant Subscriber (or any user) any rights to, or interests in, patents, copyrights, database rights, trade secrets, trade names, trademarks or service marks (whether registered or unregistered), or any other rights or licensees related to Powell Labs Voice Service (including all of its features) or any related documentation.
11. Prohibited Uses:
a. Non-Residential Use: Powell Labs Voice Service may be used as a residential voice service only and may not be used for commercial purposes, including, but not limited to, telemarketing, call center services, medical transcription or facsimile broadcasting. In addition, auto-dialers and predictive dialers may not be used with Powell Labs Voice Service. Powell Labs Voice Service is intended to be used consistent with its intended normal residential use. For instance, unlimited voice plans are intended to be used for continuous live dialog between Subscriber and a third party. Certain other activity such as excessive consistent usage, unusual call patterns, and lack of continuous dialog activity may be presumed indicative of use that is inconsistent with normal residential use of the Voice Service in violation of the Terms of Service. Voice Service may not be used to interfere with or impair Service over any facilities and associated Powell Labs equipment, or to impair the privacy of any communications over such facilities and associated Powell Labs equipment. Voice Service may not be used in any way, including by combining Service features, as to change the functionality of the Voice Service or its component features in any manner that is inconsistent with standard residential calling patterns and practices or the Terms of Service. Such non-standard calling patterns and practices include, but are not limited to, use of 3-Way Calling, Call Forwarding, and/or non-Powell Labs equipment that results in unusually high traffic volumes or excessive long distance usage. Powell Labs, in its sole discretion, reserves the right to: (i) reclassify Subscriber's Voice Service from residential to business, and to immediately apply business rates in the event of misuse or excessive use of the Voice Service by Subscriber, including any users of Subscriber's Voice Service; or (ii) immediately terminate Subscriber's Voice Service for such misuse or excessive use.
b. Fraud; Illegality: Powell Labs may block calls that are made to certain countries, cities or telephone exchanges, or that use certain authorization codes if, in its sole discretion, Powell Labs deems it reasonably necessary to prevent unlawful or fraudulent use of the Voice Service. Subscriber is responsible for securing Subscriber's telephone equipment, and Powell Labs's equipment located at Subscriber's premises, from being used to place fraudulent calls using Powell Labs Voice Service provided to Subscriber. Subscriber is also responsible for any fraudulent or unauthorized use of the Voice Service that occurs through Subscriber's account regardless of who is responsible for such usage. Subscriber shall be solely responsible for payment of all applicable charges for Voice Service provided by Powell Labs and charged to Subscriber's account, even where calls are originated by fraudulent means either from Subscriber's premises or from remote locations. Powell Labs is not liable for any damages or fees, including toll usage charges, Subscriber may incur as a result of unauthorized use of the Voice Service provided to Subscriber. Unauthorized use of Subscriber's facilities may include, but is not limited to, the placement of calls from Subscriber's premises and the placement of calls through Subscriber's equipment that are transmitted or carried on Powell Labs's network. Misuse of Voice Service could include voice modem hijacking, excessive usage of International calling, 411 directory assistance calls and other per-use charges.
c. Violations. In addition, Powell Labs reserves the right to discontinue Voice Service when Subscriber or its users is using the Voice Service in violation of law or the provisions of the Terms of Service.
12. Amendments: Powell Labs may, in its sole discretion, change, modify, add or remove portions of this Agreement and any of the Terms of Service at any time. Powell Labs may notify Subscriber of any such changes by posting notice of such changes on Powell Labs's website at www.Powell Labs.com, under "Terms of Service/Policies," or sending notice via electronic mail or U.S. postal mail. Subscriber's continued use of Powell Labs Voice Service following such change, modification or amendment shall be deemed to be Subscriber's acceptance of any such modification. If Subscriber does not agree to any modification of this Agreement, Subscriber must immediately cease using the Voice Service and notify Powell Labs that Subscriber is terminating the Voice Service. In addition, this Agreement is subject to change in compliance with applicable law without notice.
13. Entire Agreement: This Agreement shall be posted along with the Terms of Service governing Subscribers' use of Powell Labs Voice Service at www.PowellLabs.com, under "Terms of Service/Policies," and are the only terms and conditions that govern Powell Labs Voice Service. No undertaking, representation or warranty made by any agent or representative of Powell Labs in connection with the sale, installation, maintenance or removal of Voice Services shall modify or amend this Agreement or the Terms of Service.
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