TERMS OF USE AGREEMENT


1. GENERAL

This Terms of Use Agreement (the “Agreement”) covers the terms and conditions that apply to the voice over Internet services (the “VoIP services”) that KIWI SYSTEMS INC. (“KIWI”) offers through its affiliates or third party providers to you, our customer (“YOU”). If YOU buy KIWI’S VoIP services and products through KIWI’S affiliates or third party providers, YOU are the customer, along with anyone using our service, with or without YOUR consent. By enrolling, activating, signing up for, paying for, or using KIWI’S VoIP services, YOU expressly agree to these terms and conditions.

KIWI may modify or cancel service or take corrective action at anytime without prior notice as a result of YOUR violation of any of these terms and conditions. The terms and conditions may change from time to time, so please check the KIWI’S website (www.kiwitalk.com), to stay up-to-date.

YOU agree not to use KIWI VoIP services and products in any way that is illegal, fraudulent or abusive, as determined by KIWI. YOU may not alter any of the hardware or software on YOUR KIWI products and/or services.

2. SERVICE

The VoIP services are provided by KIWI using the InfiNET Network through VoIP telephones purchased from KIWI or one of its affiliates or third party providers. YOU cannot use KIWI’S service with any other telephone or device. Airtime is intended for domestic and international calling anywhere YOU connect to the Internet. Local telephone numbers and area codes (“virtual numbers”) may not be available in certain affiliate markets.

The quality of KIWI’S VoIP service may be affected by conditions beyond KIWI’S control, including atmospheric, geographic, or topographic conditions, Internet Service Providers, Wholesale Carriers, and/or power outages. KIWI expressly does not warrant or guarantee that its VoIP service will be available at any given time or geographic location, or that its VoIP service can be provided without interruption. KIWI may provide YOU with a credit for continuous service interruptions lasting more than 24 hours on a case-by-case basis, if such interruption was reasonably within KIWI’S control, and if YOU have notified KIWI at 626-793-3800 or support@kiwitalk.com within two (2) days of the interruption.

For KIWI’S VoIP service to work properly, YOU must have KIWI’S VoIP products and services, as well as access to the Internet.

3. SERVICE AND REGULATORY DISTINCTIONS

YOU acknowledge and agree that KIWI’S VoIP service is not intended as a replacement for basic telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between basic telephone service and KIWI’S enhanced VoIP service.

KIWI’S VoIP service is subject to different regulatory treatment than basic telephone service. KIWI’S VoIP service is not a local telephone service or regular long-distance telephone service and is not regulated by the FCC at this time. This may limit or otherwise affect YOUR rights of redress before Federal, State or Provincial telecommunications regulatory agencies.

4. NO EMERGENCY SERVICE OR 911 DIALING CAPABILITY

YOU acknowledge and understand that KIWI’S VoIP service does NOT support traditional 911 or E911 access to emergency services. KIWI’S VoIP service should not be relied upon for emergency or 911 calls, and KIWI’S VoIP service does not replace regular telephones or telephone service for emergency 911 calls.

KIWI specifically advises YOU to maintain regular telephone service for emergency 911 calls. YOU acknowledge and understand that KIWI does not offer primary line or lifeline services. YOU should always have an alternative means of accessing traditional 911 and E911 emergency services.

5. SERVICE OUTAGE

5.1 Power Failure or Disruption

YOU acknowledge and understand that KIWI’S VoIP service does not function in the event of a power failure or disruption. Should there be an interruption in YOUR power supply, KIWI’S VoIP service will not function until power is restored. In addition, a power failure or disruption may require that YOU reset or reconfigure YOUR equipment prior to again utilizing service.

5.2 Broadband Service, ISP Outage or Termination and/or Suspension or Termination by KIWI

YOU acknowledge and understand that service outages or suspension or termination of service by YOUR broadband provider and/or ISP or by KIWI will prevent ALL access to KIWI’S VoIP service; however, YOU will continue to be billed unless and until YOU have terminated KIWI’S VoIP service in accordance with the terms of this Agreement. YOU acknowledge that KIWI outsources the actual Internet telecommunications, who maintains the Voice over Internet switching infrastructure, and YOU acknowledge and agree that KIWI will not be liable for any interruptions of service, failure of service or termination of service.

5.3 Service Outage Due to Suspension of Your Account

YOU acknowledge and understand that service outages due to suspension of YOUR account as a result of billing issues will prevent ALL access to KIWI’S VoIP service.

5.4 Pay-Per-Call Services

YOU acknowledge and understand that KIWI will not directly complete any calls to 1-900, 1-976 or other pay-per-call services.

6. VIRTUAL TELEPHONE NUMBER

The virtual telephone number that KIWI assigns to YOU is not YOUR property. KIWI may assign the virtual telephone number to another customer if YOU cancel service, YOUR account becomes inactive, YOUR service is terminated under this Agreement, and/or for other technical reasons. There is no minimum period of time that the virtual telephone number will remain idle. KIWI reserves the right to reassign the virtual telephone number any time after the virtual telephone number becomes available.

In the event that KIWI has to assign YOU a different virtual telephone number during the term of this Agreement, KIWI will notify YOU in advance.

7. VIRTUAL PHONE NUMBER

YOU may be able to assign a landline telephone number to be YOUR KIWI virtual telephone number. This service, known as Virtual Phone Number (“VPN”), is available in certain limited areas. Please check with at My Account to determine if VPN is available in YOUR area.

Since KIWI’S VoIP service is Internet based, the calling patterns are not driven by the traditional area code format. As such, despite the fact that YOU do not reside in the U.S., YOUR virtual telephone number could have a U.S. based area code.

8. CHARGES

All annual subscriptions and any pre-payments (“recharges”) are non-refundable, regardless of who actually uses or possesses YOUR KIWI VoIP telephone after YOU buy airtime and/or whether the telephone usage is made with YOUR consent or knowledge.

Calls are billed in one-minute increments, with a minimum time per call of one minute. Charges for calls begin when YOU press the “send” or “talk” button, and ends when YOU hit the “end” key or both parties disconnect. All rates are subject to change without prior notice.

Commencing January 1, 2007, all airtime purchased from KIWI must be used within one (1) year of the date of purchase or such airtime shall expire. All airtime purchased, but not used prior to January 1, 2007, shall expire on December 31, 2007.

Unused prepayments and annual subscriptions and/or airtime that is not used within one (1) year from the date of purchase shall not be considered abandoned property under state escheat law, but shall be considered payable to KIWI as liquidated damages.

Please contact KIWI for more details.

9. DISPUTED CHARGES

If YOU believe that an erroneous charge has been posted to YOUR account, YOU must notify YOUR service provider [WHAT SERVICE PROVIDER? SHOULD THIS REFER TO KIWI?] within five (5) days after the charge has posted to YOUR account balance in order to request an adjustment.

10. RECHARGE

Charges are incurred by the minute, not by the month, and YOU must recharge YOUR account to keep it active for all calls to a non-KIWI VoIP telephone. YOU can log on to YOUR account and recharge YOUR account with a credit card in various increments. Please contact KIWI or YOUR service provider for details.

As stated above, all recharges are non-refundable and shall expire one (1) year from the date purchased.

11. REACTIVATION AND YOUR ACCOUNT

If YOU fail to recharge YOUR account after the first year, or it is otherwise terminated pursuant to the terms of this Agreement, YOUR account will become inactive and YOU will be required to reactivate it to continue to utilize KIWI’S VoIP service. YOU may be assigned a new virtual telephone number. This feature is service provider dependant.

12. LOST OR STOLEN EQUIPMENT

If YOUR KIWI VoIP telephone is lost or stolen, YOU are responsible for all charges incurred unless and until YOU notify KIWI or YOUR service provider. Once notified, KIWI and/or YOUR service provider will suspend YOUR account. Any money remaining in YOUR prior account will be transferred to YOUR new KIWI account once it has been opened.

13. COPYRIGHT, TRADEMARK, AND UNAUTHORIZED USAGE OF DEVICE, FIRMWARE & SOFTWARE

KIWI’S VoIP service and device, any and all firmware or software used to provide KIWI’S VoIP service or provided to YOU in conjunction with the provision of KIWI’S VoIP service, or embedded in the KIWI’S VoIP device, and all KIWI’S VoIP services, information, documents and materials on KIWI’S website(s) 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, the "marks") of KIWI are and shall remain the exclusive property of KIWI.

YOU acknowledge and agree that nothing in this Agreement shall grant YOU the right or license to use any of KIWI’S marks. YOU acknowledge and agree that YOU are not provided any license to use the firmware or software used to provide KIWI’S VoIP service or provided to YOU in conjunction with the provision of KIWI’S VoIP service, or embedded in the KIWI’S VoIP device, other than a nontransferable, fully revocable and limited license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement.

YOU expressly acknowledge agree that KIWI’S VoIP device is exclusively for use in connection with KIWI’S VoIP service and that KIWI will not provide YOU with any passwords, codes or other information or assistance that would enable YOU to use KIWI’S VoIP device for any other purpose. If YOU attempt to use KIWI’S VoIP service through an interface device not provided by KIWI – which KIWI reserves the right to prohibit – YOU warrant and represent that YOU possess all required rights, including software and/or firmware licenses, to use that interface device with KIWI’S VoIP service and that YOU shall indemnify and hold KIWI harmless against any and all potential liability arising out of YOUR use of such interface device with KIWI’S VoIP service. YOU further acknowledge and agree that YOU will not reverse compile, disassemble, reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

14. LIMITATION OF LIABILITY

KIWI AND ITS AFFILIATES AND/OR THIRD PARTY PROVIDERS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS (REGARDLESS OF WHETHER WE HAVE BEEN NOTIFIED THAT SUCH LOSS MAY OCCUR) BY REASON OF ANY ACT OR OMISSION IN OUR PROVISION OF PRODUCTS OR SERVICES. KIWI AND ITS AFFILIATES AND/OR THIRD PARTY PROVIDERS SHALL NOT BE LIABLE FOR ANY ACT OR OMISSION OF ANY OTHER COMPANY FURNISHING A PART OF THE SERVICE OR ANY EQUIPMENT PROVIDED FOR SUCH SERVICE – INCLUDING, BUT NOT LIMITED TO, ERRORS OR OMISSIONS OF ANY VENDORS PARTICIPATING IN OFFERS MADE THROUGH KIWI - OR FOR ANY DAMAGES THAT RESULT FROM ANY PRODUCT OR SERVICE PROVIDED BY OR MANUFACTURED BY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL KIWI OR ITS AFFILIATES AND/OR THIRD PARTY PROVIDERS BE LIABLE FOR AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE TELEPHONE AND SERVICE.

15. INDEMNIFICATION

YOU agree to indemnify and hold harmless KIWI and its affiliates and/or third party providers from any and all liabilities, penalties, claims, causes of action and demands brought by third parties (including the costs, expenses and attorneys' fees on account thereof) resulting from YOUR use of KIWI’S VoIP service or products, whether based in contract or tort (including strict liability) and regardless of the form of action.

16. LIMITED WARRANTY

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE MATERIALS ACCOMPANYING KIWI’S VOIP TELEPHONE, OR POSTED AT ITS WEBSITE WWW.KIWIUSA.COM, KIWI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED BY LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KIWI MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. KIWI DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AFFILIATES, AND/OR THIRD PARTY SERVICE PROVIDERS TO MAKE ANY WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY UPON ANY SUCH STATEMENT.

17. NOTICES

YOU may notify us by telephone (626)793-3800, by email to info@kiwitalk.com or via our Web site at www.kiwitalk.com. Any such notice will not be considered effective unless and until KIWI has received it. Any notice sent to YOU by KIWI will be sent to YOUR last known residence, to the electronic address as shown in KIWI’S records, or via electronic messaging to YOUR KIWI account.

18. USE OF YOUR SUBSCRIBER INFORMATION

KIWI may, from time to time, use the information that YOU have provided to it to market services to YOU that may be related to KIWI’S service offerings. KIWI will always handle YOUR information in a manner consistent with federal subscriber privacy laws and KIWI’S privacy policies included on its web site (www.kiwitalk.com).

19. CHOICE OF LAW; JURISDICTION

Any complaint, arbitration or other legal action concerning these terms and conditions shall be interpreted under the laws of the State of California, excluding the choice of law rules. Any dispute arising from the purchase or use of KIWI’S VoIP service and products shall be brought exclusively in the state or federal courts in Los Angeles County, California.

20. ENTIRE AGREEMENT

The terms and conditions set forth herein constitute the entire agreement between YOU and KIWI with respect to KIWI’S VoIP service and products and the terms and conditions under which they are offered and provided to YOU. These terms and conditions supersede all oral or written communications and understandings between YOU and KIWI with respect to KIWI’S VoIP service and products and the terms and conditions under which they are offered and provided to YOU.

21. SEVERABILITY

If any part of the terms and conditions of this Agreement shall be declared invalid or unenforceable, all other parts of these terms and conditions are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of these terms and conditions.

22. NO THIRD PARTY BENEFICIARIES

Except as expressly set forth herein, no provision of the terms and conditions of this Agreement provides any person or entity not a party to these terms and conditions with any remedy, claim, liability, reimbursement, or cause of action or create any other third party beneficiary rights.

Last Updated: December 1, 2006.

 
 
 
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