PhoneGnome License Terms and Conditions of Use Agreement
TelEvolution, Inc. ("TelEvolution" or "Us"), provides the PhoneGnome product (the "PhoneGnome") as well as the related basic services and applications (collectively known hereafter as the "Basic PhoneGnome Services"). We also administer additional services such as phone book features and PhoneGnome settings and will provide future services such as the ability to view your account history (the "Additional Services," with the Additional Services and Basic Services known hereafter as the "Services"). The following terms and conditions (the "Agreement") will govern your use of the PhoneGnome and PhoneGnome Services. Your use of the PhoneGnome and PhoneGnome Services indicates that you have read this Agreement in its entirety and agree to the terms and conditions contained herein. ONCE AGAIN, READ THIS ENTIRE AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT USE THE DEVICE AND PHONEGNOME THE SERVICES, AND RETURN IT THE PHONEGNOME TO TELEVOLUTION WITHIN THIRTY (30) DAYS OF YOUR DATE OF PURCHASE AND YOU WILL RECEIVE A FULL REFUND (OTHER THAN PAYMENT FOR SHIPPING AND HANDLING CHARGES). BY USING THE PHONEGNOME AND THE PHONEGNOME SERVICES YOU AGREE TO THESE TERMS AND CONDITIONS OF THIS AGREEMENT.
Use of the PhoneGnome Services
The following requirements apply to the use of the PhoneGnome Services:
(a) You will not use the PhoneGnome Services for any purpose that is unlawful, abusive, intrusive on another's privacy, harassing, libelous, defamatory, threatening or hateful, or in any other way that would violate any applicable governmental law.
(b) You may not offer the PhoneGnome Services, PhoneGnome or any part thereof for sale or transfer to another person or entity.
(c) TelEvolution offers the PhoneGnome Services to consumers located in the United States. While the PhoneGnome Services may be used to make and receive international calls, we do not represent that the use of the PhoneGnome Services is appropriate, possible or safe in locations outside the United States based on individual certification requirements in specific countries. If you choose to use the PhoneGnome and the Services from outside the United States, you use them at your own risk and are responsible for compliance with any and all governing foreign and local laws.
(d) You may not reverse engineer, distribute, publish, display, modify or in any way exploit the configuration parameters which we provide as a means to access the PhoneGnome Services.
(e) You may not use the PhoneGnome Services for telemarketing, broadcast fax, or to deliver unauthorized or unsolicited advertising, promotional materials or solicitations.
(f) You acknowledge that the PhoneGnome and any embedded software or firmware is exclusively for use with the PhoneGnome Services.
(g) You agree not to perform a factory reset of the PhoneGnome hardware.
(h) You may not use the PhoneGnome Services with or connect the hardware component of the PhoneGnome Service to a PBX or automated dialer.
(i) In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to TelEvolution will always be accurate, correct and up to date.
(j) You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by TelEvolution, unless you have been specifically allowed to do so in a separate agreement with TelEvolution. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts).
(k) As part of your continued use of the Services, you agree to make at least one purchase from the My PhoneGnome Store at http://my.phonegnome.com annually to maintain your account in good standing. An initial purchase must be made within 45 days of activating your Service.
(l) You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
(m) Unless you have been specifically permitted to do so in a separate agreement with TelEvolution, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
(n) You agree that you are solely responsible for (and that TelEvolution has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which TelEvolution may suffer) of any such breach.
Registration and password
You are responsible for maintaining the confidentiality of your password that you will use to access your account online, and shall be responsible for all usage of your user account and/or user name, whether authorized or unauthorized by you. You agree to immediately notify TelEvolution of any unauthorized use or your user account, user name or password.
Our services are void where prohibited by applicable laws. Our PhoneGnome Services is offered only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our PhoneGnome Services is not available to minors under the age of eighteen (18) in the jurisdiction or control of the United States or to anyone who may not be able to form a legal binding contract within such person's jurisdiction. Any misstatements and/or misrepresentations regarding the age, background, experience and/or eligibility of any users of the PhoneGnome Services are not the responsibility of TelEvolution. TelEvolution does hereby expressly disclaim any liability whatsoever for any misstatements and/or misrepresentations made by any users of the PhoneGnome Services. You hereby represent, understand and agree to hold TelEvolution harmless and to indemnify TelEvolution for any misstatements and/or misrepresentations, whether made intentionally or not, made by you.
Your Warranties and Representations
(a) are at least 18 years of age;
(b) have no expectation of privacy or confidentiality in any personal information, ideas, designs or inventions that you choose to disclose to TelEvolution in connection you're your use of the PhoneGnome Services;
(c) will use the content and materials made available to you by TelEvolution only for the purpose of using the PhoneGnome Services;
(d) do not provide services to a company (or were asked to use the PhoneGnome Services by a representative of a company) that is presently providing VOIP services; and
(e) will not misappropriate any of the intellectual property of TelEvolution or any other party.
We have no way of distinguishing the age of individuals who order the PhoneGnome Services, despite the representations made above. Therefore, we carry out the same policies for individuals of all ages. If a child under the age of 18 has provided us with personal information without parental or guardian consent, the parent or guardian should contact us to remove the information and opt out of promotional opportunities.
Because we are not involved in the actual contact between users, in the event that you have a dispute with one or more users and/or any parties unrelated to TelEvolution (including, but not limited to, any customers of TelEvolution), you release TelEvolution (and our officers, directors, principals, agents, investors, subsidiaries and employees) from all claims, demands and damages (actual and consequential) of every kind and nature whatsoever, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Disclaimer of Guarantee of Server Uptime
TelEvolution and their affiliates cannot guarantee the continuous operation of the PhoneGnome Services (including its servers). TelEvolution shall not be liable for any delay or failure of the PhoneGnome Services (including its servers) to perform. In the event of a systems incompatibility or inoperability with the PhoneGnome Services, the sole liability of TelEvolution and their affiliates shall be limited to any amounts actually paid to TelEvolution with respect to the affected period. TelEvolution, its parents, affiliates, officers, directors, employees, agents and other personnel shall not be liable for any delays, system failures, authentication failures, or system outages, which may, from time to time, affect the PhoneGnome Services operation.
Fair Use Policy
It is important to Us that all eligible PhoneGnome customers are able to access the PhoneGnome Services. Accordingly, We have devised a Fair Use Policy which applies to:
(a) usage of PhoneGnome free calls
(b) usage of promotions; and
(c) any other promotions which are advertised by TelEvolution as subject to the Fair Use Policy ("Fair Use Promotions").
We reserve the right to vary the terms of the Fair Use Policy from time to time.
PhoneGnome may rely on the Fair Use Policy:
(a) regarding usage of PhoneGnome free calls;
(b) participation in a Fair Use Promotion, is excessive or unreasonable, as defined below;
(c) for any other uses reasonably determined applicable at our sole discretion.
In the case of PhoneGnome free calls, there are restrictions on the maximum number of calls and the duration of the calls.
In the case of Fair Use Promotions, what is excessive use will either be advertised by PhoneGnome at the time of the relevant promotion or included in this Fair Use Policy prior to the commencement of the relevant promotion.
It is unreasonable use of PhoneGnome Services where Your use of PhoneGnome Services is reasonably considered by TelEvolution, at its sole discretion, to be fraudulent or to adversely affect the PhoneGnome Service or other PhoneGnome customers' use of or access to the PhoneGnome Service.
In addition you agree that any usage of more than 1,000 minutes per month will be deemed dispositive proof of Unreasonable Use. In the event you engage in Unreasonable Use, TelEvolution reserves the right to terminate service without notice or, at TelEvolution's sole discretion, to charge you at a rate specified on our Web site for calls that exceed the 1,000-minute per month limitation. This rate may be modified on our Web site from time to time.
Unless otherwise specifically mentioned, the PhoneGnome Services are provided to you solely for residential use. We reserve the right to immediately disconnect or modify your PhoneGnome Services if we determine, in our sole and absolute discretion, that your use of the PhoneGnome or the PhoneGnome Services is, or at any time was, inconsistent with normal residential usage patterns. In addition you will be required to pay our higher rates for commercial service for all periods in which your use of the PhoneGnome or the PhoneGnome Services was inconsistent with normal residential use.
As consideration for using the Service, you agree and understand that TelEvolution may insert advertising into calls and messages delivered or content we serve on your behalf, depending on our current advertising policies and the PhoneGnome service(s) you are using. You understand and agree that such advertisements are necessary for TelEvolution to provide the Service.
TelEvolution wants to ensure that you are satisfied with your purchase. If you are not, simply return the PhoneGnome, in its original condition and packaging, within 30 days of the date of your purchase and we will either exchange the PhoneGnome or refund your payment. Refunds will be made for your original purchase price minus our shipping costs. You are responsible for the shipping cost on all exchanged/returned items. You must follow all of the instructions listed under "RETURN REQUIREMENTS" below to ensure proper handling and resolution of your request.
TelEvolution warrants that the PhoneGnome will be free from defects in materials or workmanship for a period of ninety (90) days after purchase, as evidenced by your written receipt for the purchase of the PhoneGnome. During the warranty period, TelEvolution will, at its sole option and as your exclusive remedy for failure of the limited warranty repair or replace the PhoneGnome or refund the amounts actually paid to TelEvolution by you. This limited warranty does not apply to damage that is the result of misuse, abuse, mishandling or failure to install and operate the PhoneGnome and use the PhoneGnome Services as intended or directed, damage caused by accessories or use with other systems not provided by TelEvolution, and/ or damage caused by viruses, worms, programs or other files. TelEvolution will, at its sole discretion, make the determination as to the cause of the problem described. If we find that the PhoneGnome was damaged because you used the PhoneGnome outside of its normal operating parameters and you require a new PhoneGnome, you will be responsible for the cost of replacing or repairing the PhoneGnome if you desire to continue to use the PhoneGnome Services. This limited warranty is not transferable to subsequent purchasers of your PhoneGnome. If you have a claim covered under the Limited Warranty above, TelEvolution must receive your claim at #145 9000 Crow Canyon Road STE S, Danville CA 94506, within the ninety (90) day period described above and you must request an RMA (as described below) Number within such time period above. After receiving your RMA Number, you must follow all of the other requirements outlined under "RETURN REQUIREMENTS" below. Your claim must include a description of the problem you encountered with the hardware, your date of purchase and your original receipt for the purchase. After receiving your PhoneGnome, TelEvolution will contact you within a reasonable period thereafter not to exceed thirty (30) days with its determination and resolution, as described above.
Returns require an RMA Number (Return Material Authorization Number). Contact TelEvolution at firstname.lastname@example.org to obtain an RMA Number. All returns must be in original packaging with all accessories, cables, manuals and instructions. Any PhoneGnome or materials received that shows any sign of abuse or physical damage will NOT be accepted regardless of any other problem with the PhoneGnome. All returns must be packaged to prevent damage in return shipping. All products returned that are improperly packaged or damaged in shipping due to improper packaging will be returned to you without credits or further remedy. Proper packaging is determined to be that the PhoneGnome should be packaged in a box with sufficient padding inside the box around the product to prevent damage in transit. TelEvolution will not be responsible for loss of usage of the PhoneGnome during this period of time nor will a loaner product be made available.
TelEvolution must receive the returned item within 10 days after an RMA number has been issued. An assigned RMA number is valid for 10 days only and will expire on the 11th day after the date of issuance, at which time any returned products will be refused.
Your return of the PhoneGnome must also comply with the following requirements:
(a) You must return all of the software, materials and documentation and the PhoneGnome (collectively, the "PhoneGnome Materials") received in connection with your purchase of the PhoneGnome including the PhoneGnome in its original condition and all original packaging, documentation and accessory materials.
(b) The PhoneGnome must be free of any writing, stickers, or marks other than those which were on the PhoneGnome when you received it.
(c) The box which encloses the PhoneGnome Materials must be packed inside another cardboard shipping box.
You must return the PhoneGnome Materials to #145 9000 Crow Canyon Road STE S, Danville CA 94506. Refer to the store return policies: http://www.phonegnome.com/store/returns.html
DISCLAIMER OF WARRANTIES
A. DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY CONTAINED IN THE SECTION ABOVE IS THE ONLY WARRANTY APPLICABLE TO THE PHONEGNOME DEVICE AND THE PHONEGNOME SERVICES. THE LIMITED WARRANTY CANNOT BE MODIFIED, CHANGED OR OTHERWISE AMENDED. TELEVOLUTION SALES PERSONNEL ARE NOT AUTHORIZED TO MODIFY OR EXPAND THIS WARRANTY IN ANY WAY. ALL EXPRESS, OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE HEREBY EXCLUDED TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW.
B. ANY AND ALL LIABILITY, IF ANY, OF TELEVOLUTION, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS SHALL BE LIMITED TO THE PRICE PAID FOR THE PHONEGNOME. YOUR SOLE REMEDY SHALL BE REFUND OF ANY AMOUNTS ACTUALLY PAID TO TELEVOLUTION. TELEVOLUTION SHALL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS, LOSS OF USE OF PRODUCT, FACILITIES OR EQUIPMENT, COST OF SUBSTITUTE OR REPLACEMENT, DOWN TIME OR SIMILAR LOSS, EVEN IF TELEVOLUTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TELEVOLUTION SHALL NOT BE LIABLE FOR ANY CLAIMS, INCLUDING THIRD PARTY CLAIMS, FOR BODILY HARM, INJURY OR DEATH RESULTING FROM THE USE OR MISUSE OF THE PHONEGNOME OR PHONEGNOME SERVICE.
C. THE LIMITED WARRANTY PROVIDED HEREIN GIVES YOU CERTAIN SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS THAT VARY FROM STATE TO STATE. SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Governing Law and Venue
You agree that the laws of the State of California shall govern the terms of this Agreement and your use of the PhoneGnome and PhoneGnome Services. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Oakland, California, and you hereby consent to the personal jurisdiction and venue of these courts.
Copy of Agreement and Additional Questions
Should you have any questions concerning this Agreement please contact TelEvolution Inc., #145 9000 Crow Canyon Road STE S Danville CA 94506.
We may send you notices by mail or electronic means, in our sole discretion. Notices to you shall be effective 1) 3 days following the date deposited in the U.S. Mail or delivered to a nationally recognized courier or delivery service to your address as kept in our files and/or 2) immediately upon our transmission using an electronic means such as email or text messaging service. You are responsible for notifying us of any changes in your mailing or email address. Written notice to us shall be effective when directed to TelEvolution Inc., #145 9000 Crow Canyon Road STE S, Danville, CA 94506 and received by us. Your notice must contain specific information adequate to identify you and your PhoneGnome/PhoneGnome Services records. Oral and electronic notices shall be deemed effective on the date reflected in our records.
Changes to Our Policy or Terms and Conditions
TelEvolution reserves the right to change this Agreement at any time. Any changes will be posted on PhoneGnome website at www.phonegnome.com/policies.html.
Intellectual Property Rights; Copyright and Trademark Notice
You understand that TelEvolution or its affiliates owns all of the intellectual property rights in and to the PhoneGnome Materials. All information appearing in the PhoneGnome Materials including graphics, text, design, buttons, logos, images, and icons, as well as the selection, assembly, and arrangement, are the sole property of TelEvolution Inc., and are protected by U.S. and international copyright, trademark and patent laws. The PhoneGnome Materials are solely for your use of the PhoneGnome Services in strict accordance with this Agreement. Any other use including, without limitation, modification, reproduction, uploading, posting, transmission, or distribution in any form or by any means without TelEvolution's prior written permission is strictly prohibited. All rights not expressly granted herein are reserved by TelEvolution, Inc.
TelEvolution™ and PhoneGnome™ are trademarks and service marks of TelEvolution, Inc.
Any controversy or claim arising out of or relating to this Agreement, the PhoneGnome or our PhoneGnome Services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of California and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or TelEvolution may seek any interim or preliminary relief from a court of competent jurisdiction in the State of California, necessary to protect the rights or property of you or TelEvolution pending the completion of arbitration.
© 2009 TelEvolution, Inc. All Rights Reserved.