I.                    GENERAL TERMS AND CONDITIONS

II.                  RATES AND CHARGES

III.                ACCEPTABLE USE

IV.                911

V.                  PRIVACY

 

I.                    General Terms and Conditions

The following Lingo Telecom, LLC. dba Lingo (formerly known as Matrix Telecom, LLC. and hereinafter “Lingo”) Commercial Terms and Conditions are between you, the Customer, and Lingo. For the purposes of these Commercial Terms and Conditions, Lingo may be referred to herein as “we,” “our,” or “us.” “Customer,” “you” and “your” refer to the person or entity purchasing the Services. Lingo services have also been provided under the Lingo Communications, BullsEye, Bandwave, Excel, Impact, Impact Telecom, and Vartec brand names.

The following Terms will apply to your services with us (referred to herein as the “Service” or the “Services”).  Additional terms governing your Services may also be found in our tariffs and price lists or in applicable Service Schedules or Service Order Form (which are incorporated into and made a part of these Terms).

1. Acceptance

Lingo must formally accept your Service Order and Credit Application by countersigning the Service Order Form.

2. Service Authorization; Turn-Up Date

The individual executing the Service Order Form on behalf of Customer hereby represents and warrants to Lingo that he or she is duly authorized to execute and deliver the Service Order Form on behalf of Customer. Customer authorizes Lingo to provide, or cause to be provided, the services selected on the Service Order Form (collectively, the “Services”) at the location or locations set forth in the Service Order Form (the “Service Locations”) during the Service Term (as defined below). In order for Customer to receive Service, Customer must cooperate in good faith with Lingo as may be reasonably necessary for Lingo to commence and continue to provide Services. Lingo will use commercially reasonable efforts to commence Service within ninety (90) days of the Effective Date, but in no event will Lingo incur any liability whatsoever to Customer for any inability to commence services by such date.

3.  Customer Authorized Representative; Customer

Customer must authorize and identify to Lingo in writing at least one individual who is authorized to represent Customer on any aspect of the Services and Customer’s account (including all requests for moves, additions, deletions or changes to the Services). Lingo has the right to rely on the instructions given by such representative until Customer notifies Lingo in writing of its selection of a different authorized representative.  

Customer will provide or designate a technical contact responsible for assisting Lingo in diagnosing reported trouble and or configuring and maintaining the Customer’s equipment, including but not limited to, the PBX, firewall, wiring and LAN. In the event Customer is not able to provide a certified technical contact for the installation or regular maintenance, Lingo may invoice the Customer for such support at Lingo’s applicable hourly rate.

If Customer’s authorized representative technical contact changes, Customer must immediately notify Lingo in writing of the name and contact information of the new authorized representative and technical contact.

Customer will be responsible for any expenses, losses or claims incurred by Lingo as a result of Customer’s breach of the obligations in this Section.

Porting to Lingo. In the event you are transferring (or “porting”) an existing phone number from another provider for use with your Lingo Service, you hereby authorize Lingo to process your order for Lingo Service and to notify your existing provider of your decision to switch your local, local toll, and long distance services to Lingo Service, and you represent that you are authorized to take this action. (Note: not all telephone numbers are eligible for porting to Lingo Service.)

4. Service Term

The term commitment for the Service (“Service Term”) will be reflected on the Service Order Form. The Service Term shall commence on the first (1st) day of the calendar month immediately following the calendar month during which the Service is made available to the Customer by Lingo, or the circuit used to provide Service (or any portion thereof) is first delivered to Customer, or when IP addresses for authentication are first made available (“Turn Up Date”). Service may be provided for month-to-month terms or for longer, fixed time periods, depending on your plan. The Service term automatically renews for successive terms of equal duration unless you provide us written notice of no less than ninety (90) days prior to the expiration of the current term of your intent not to renew. The renewal begins on the day after the last day of your Service term. If you choose a one (1) year, a two (2) year or a longer fixed term of service, you agree to purchase Service for the full term and any renewal term, if applicable. If you terminate Service before the end of your fixed term (or any renewal term), or we terminate following your default, you will be in material breach of this Agreement and will be subject to the Early Termination Charges described in Section 18(d) below.

In addition, upon the conclusion of your term commitment period, Lingo will automatically begin charging the applicable charges for the renewal period, including charging the credit card you previously authorized to pay for the Services, unless you cancel the Service by providing at least written notice of your intent not to renew Services at least ninety (90) days prior to the end of the current term.  If you were receiving a discount based upon a term commitment, your discount may cease and you may be billed the standard monthly rate for the Services during the renewal term. If you subscribe to a prepaid plan, your subscription will automatically renew at the end of each term for successive terms of equal duration. Lingo may charge your credit card for the prepayment to cover the renewal term, unless you cancel the Service by providing at least written notice of your intent not to renew Services at least ninety (90) days prior to the end of the current term. Lingo does not refund any prepaid fees for unused service.

Rates and charges in effect on the last business day of the Initial Term or Renewal Term, as applicable, shall be the rates and charges in effect for such Renewal Term until changed in accordance with these Terms. If during the Service Term, Customer submits a change order that requires Lingo to activate additional circuits and there is less than twelve (12) months remaining in the Service Term at the time such circuits are activated, then Customer expressly agrees that the Service Term shall be automatically extended to the first (1st) anniversary of the date the last circuit related to such change order is activated. Customer is responsible for Early Termination Charges (defined below) if the Agreement is terminated either (a) prior to the Turn-Up Date or (b) prior to the expiration of the then current Service Term. (Please see Section 23 below for Early Termination Charges.)

5. Equipment

Telephones, mobile phones, analog telephone adaptors (ATA’s) (and other voice over Internet Protocol (VoIP) devices), computers, and other telecommunications equipment (referred to herein collectively as “Equipment”) will either be provided by the customer (“Customer Equipment”) or, if available, will be rented directly from Lingo (“Lingo Equipment”).

Customer Equipment. Customer shall be solely responsible for acquiring, installing and maintaining all Customer Equipment that is necessary in order to receive and use the Services. Lingo does not warranty any Customer Equipment and shall not be responsible for any failure, degradation, or other defects in the Service due to Customer Equipment or the lack thereof. When Customer chooses “SI Certified CPE” or other customer-provided equipment category on the Service Order Form, Customer acknowledges that it is required to provide its own Equipment at its sole cost and expense. The installation, operation, maintenance, repair or removal of any software, program, or other hardware related to the Services, on Customer’s Equipment (computer(s), network(s) or other hardware) may result in service outage, loss or damage to that Customer Equipment or any data, information or files on Customer’s Equipment. Customer shall be solely responsible for all data and software back up, and customer is solely responsible for protecting its computer and network data, information and files. Customer assumes all responsibility for Lingo’s loss or damage to its computer or network hardware, data, information, files, peripherals, or other equipment associated with installing, operating or removing any Customer Equipment, software or other hardware. Any warranty covering Customer’s computer, network or other equipment may become void when customer opens that computer or equipment to install and use such equipment with the Services. Lingo does not commit or warrant that Customer’s installation or use of any computer, equipment, software or other hardware will permit customer to access, operate, or use any Service.

Lingo Equipment. Customer will bear all the risk of loss, theft, or damage to the Lingo Equipment. This risk is from the time we ship your Lingo Equipment to you, if you receive cartons or Lingo Equipment that is visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them. You must then immediately contact Lingo Customer Service.

Rental fees to your Lingo Equipment will apply for the Service Term or Renewal Term, and will be charged separately, in addition to any applicable taxes and governmental surcharges. Customer acknowledges that Lingo, or its assignees, have the right to file a Uniform Commercial Code Form 1 (UCC-1) to protect Lingo’s interest in the Lingo Equipment or any other type of filing to effectuate Lingo or its assignee’s rights to title of the Lingo Equipment.  Neither the Customer nor its creditors, landlord(s), or any other third-parties have any property, security or other interest in the Lingo Equipment. The Customer is responsible for maintaining all-risk property damage insurance covering the Lingo Equipment in an amount not less than the retail value of the Lingo Equipment at the date of delivery. The Customer is responsible for providing adequate facilities and space to house, maintain and operate the Lingo Equipment in accordance with the manufacturer’s requirements. Customer hereby agrees to comply with all instructions and requirements regarding the use and/or care of the Lingo Equipment, and to take reasonable measures to protect the Lingo Equipment at all times. Customer must not change the serial number, electronic serial number or equipment identifier, encryption keys, other authentication, or technical data or perform a factory reset of the Lingo Equipment, without express permission from Lingo. Lingo reserves the right to terminate the Service should Customer tamper with the Lingo Equipment. If leased Lingo Equipment was damaged due to Customer’s intentional acts, negligence, or use inconsistent with these Terms, as determined by Lingo, the Customer will be responsible for the price of repair or replacement of the Lingo Equipment. Any tampering with the Lingo Equipment, including, for example, opening and attempting to modify the Lingo Equipment, or attempting to connect it to unauthorized hardware, will be treated as damage due to Customer’s intentional acts or negligence.

Customers agree to maintain the premises where Lingo Equipment is installed using good business judgment in a manner that protects the Lingo Equipment from excessive wear and tear and overheating, and keeps the Lingo Equipment functional. Customer is required to provide the physical location of all Lingo Equipment and must notify Lingo within five (5) days if any Lingo Equipment is moved to another location. Customers (a) authorize Lingo or its contractors to install the Lingo Equipment in space meeting Lingo’s minimum installation requirements, and (b) represents and warrants that Customer has the right and authority to (i) provide Lingo and/or its contractor’s access to such space and (ii) use such space to house and maintain the Lingo Equipment.

Customer shall be responsible for all property and business taxes associated with the Lingo Equipment.

Equipment Upgrades: Upon completion of the Initial Term (minimum three year term) and Customer renews its services for a Renewal term, Customer may be eligible for a Lingo Equipment upgrade or update. In addition, if Customer request an upgrade of its Lingo Equipment and an upgrade is provided, Customer will be responsible for any increase in the monthly lease fee for the upgraded equipment. Customer will also be responsible for restocking fees and shipping and handling charges for the returned items associated with Lingo Equipment upgrades requested by Customer. Lingo may provide some equipment updates automatically. During this automatic update you may be unable to obtain a dial tone or make and receive calls, including the ability to make 911 calls.

Prohibited Equipment: You are prohibited from using the Lingo Service with any equipment other than Lingo-approved Equipment received from retailers or from us. Lingo may not allow for any non-Lingo equipment for some Services.

Equipment Purchased from Retailers: If you purchased your Customer Equipment from a retail provider, you may return your Customer Equipment only to that retail provider. All Customer Equipment returns are subject to the return policy of the retail provider and are not subject to any warranties described in this Section. We will not accept any Customer Equipment returned to us from a retail provider.

Lingo Equipment Warranty. If you purchased the Lingo Equipment, you must notify Lingo within thirty (30) days of receipt of the Lingo Equipment or within the warranty period provided by the manufacturer whichever is later, if you suspect that the Lingo Equipment has a defect. If the defective Lingo Equipment is not returned within thirty (30) days or within the above warranty period you may be charged a replacement fee equal to full replacement cost of the Lingo Equipment. If you notify us within such time period, the leased or purchased Lingo Equipment will be repaired, replaced, replaced with comparable equipment, or refurbished, at Lingo or manufacture’s discretion, at no charge (except for any applicable restocking fee and shipping and handling charges for the returned items). 

If you rent the Lingo Equipment, Lingo shall warranty such equipment during the Initial Term, and during the Renewal Term for any rented Lingo Equipment. Such rental Lingo Equipment warranty shall be subject to the following

All returns are subject to trouble-shooting, inspection and confirmation of the defect by Lingo’s (or the manufacturers) technical support personnel. Lingo or Manufacturer warranties do not apply to any defect or failure other than a manufacturing defect. Without limiting the generality of the warranty, it does not apply to any defect caused by damage in the handling of your Lingo Equipment by you or any other person after it is delivered to you.

For returns subject to this limited warranty by Lingo, you must comply with the following:

(1) We receive your Lingo Equipment, in its original condition (reasonable wear and tear excluded) together with the original packaging, all parts, accessories, and documentation;

(2) Before returning your Lingo Equipment to us, you need to obtain a valid return authorization number from Lingo,

(3) You pay all costs of shipping your Lingo Equipment back to us.

Your only remedy for breach of any limited warranty or breach of any duty regarding Lingo Equipment is to get repaired or comparable replacement Lingo Equipment by following our return procedures.

OTHER THAN EXPRESS WARRANTIES FOR THE EQUIPMENT IN THE DOCUMENTATION THAT COMES WITH YOUR EQUIPMENT, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM, ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE EQUIPMENT FOR A PARTICULAR PURPOSE, AVAILABILITY, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE EQUIPMENT OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE”, AVAILABLE FOR THE SENDING OR RECEIPT OF CALLS OR WILL MEET YOUR REQUIREMENTS. THIS SECTION DOES NOT LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY IN THE DOCUMENTATION PROVIDED WITH YOUR EQUIPMENT.

Some States do not allow limitations on how long an implied warranty lasts and some of the above limitations may not apply to you.

Lingo Equipment Return Upon Termination. Upon termination of the Services, for whatever reason, you must return the rented Lingo Equipment, undamaged, within twenty-one (21) calendar days to Lingo. All components must be included and Equipment must be in good condition, as determined by Lingo. Lingo will provide a return label for shipping of the Equipment and you will not be responsible for paying for the applicable return shipping and handling fees. If the Equipment is not returned within twenty-one (21) calendar days, or is returned damaged, you will be charged the full replacement cost for the Equipment. Lingo may retain any advance payment or deposit, or portion thereof that previously had not been refunded if you fail to return the Equipment within the twenty-one (21) day time period. If the Equipment is returned within twenty-one (21) days of termination, any unused advance payment or deposit will be refunded. No refunds will be made for any Equipment returned more than twenty-one (21) days after termination. If the Lingo Equipment is returned during the Initial Term or any Renewal Term, Customer shall be responsible for applicable restocking fees and shipping and handling charges for the returned items.

All Equipment and Telephone Numbers. You agree that you will use the Equipment and any Telephone Number we provision for you only for their intended use, and not for any other purpose.

6. Software

The Services and/or the Equipment may use and include certain software and/or firmware (the “Software”) provided by Lingo, by either the Equipment manufacturer or by third-parties.

End User License. If you downloaded or installed Software, your use of that Software is subject to the End User License Agreement that accompanied that Software.

Non-Lingo Software. Your use of the Services and the Equipment may cause you to use or interact with software of non-Lingo third-parties. In such cases, those third-parties’ terms and conditions apply to your access and use of such non-Lingo software. Lingo is not liable to you for any loss or injury arising out of or caused, in whole or in part, by your use of any such software accessed through, or in conjunction with, the Service or Equipment.

Lingo License. With regard to any Lingo Software (including Software upgrades, changes, or supplements) which is not accompanied by an End User License Agreement, and which is incorporated into the Services or the Lingo Equipment, Lingo, or its applicable third- party licensors, grants you a limited, personal, nontransferable, and nonexclusive right and license to use the object code of its Software on the Services and the Equipment; provided that you do not (and do not allow any third-party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or structure, sequence and organization of, sell, assign, sublicense, distribute, rent, lease, grant a security interest in, or otherwise transfer any right in the Software. You acknowledge that this license is not a sale of intellectual property and that Lingo or its third-party licensors, providers, or suppliers continue to own all rights, title, and interest to the Software and related documentation. The Software is protected by the copyright laws of the United States and international copyright treaties.

Export Limits. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.

NOTICE ABOUT AUTOMATIC SOFTWARE UPGRADES. Lingo, or its applicable third-party licensors may provide Software upgrades, updates, or supplements (such as, but not limited to, adding or removing features or updating security components). You understand and agree that Lingo, or applicable third-party licensors, have the unrestricted right, but not the obligation, to upgrade, update, or supplement the Software on the Services and/or Equipment at any time. Software upgrades, updates, or supplements could reset your Equipment and erase saved preferences and stored content.

7.  Third-Party Products and Services

Customer understands that our Services and the Equipment can be used to access, acquire or purchase goods, content, and services (including subscription plans) like graphics, games, news alerts, applications, software, hardware and other goods and services that are provided by non-Lingo third-parties. Customer understands that Customer is responsible for all charges associated with such items purchased through the use of the Services and Equipment assigned to Customer’s Lingo account.

LINGO IS NOT A PUBLISHER OF THIRD-PARTY INFORMATION, APPLICATIONS, OR OTHER CONTENT AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE, STATEMENTS, OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY THIRD-PARTIES.

Policies regarding intellectual property, privacy and other policies or terms of use may differ among content or service providers and Customer is bound by such policies or terms when Customer visits their respective sites or use their services. It is Customer’s responsibility to read the rules or service agreements of each content provider or service provider. Any information Customer involuntarily or voluntarily provides to third-parties is governed by their policies or terms. The accuracy, appropriateness, content, completeness, timeliness, usefulness, security, safety, merchantability, fitness for a particular purpose, transmission or correct sequencing of any application, information or downloaded data is not guaranteed or warranted by Lingo. Delays or omissions may occur. Lingo shall not be liable to Customer for any loss or injury arising out of or caused, in whole or in part, by Customer’s use of any information, application or content, or any information, application, or other content acquired through the use of Customer’s Services and Equipment.

8. Fraudulent Conduct; Security Measures

Customer agrees to keep confidential all passwords, user IDs, IP addresses, and other account identifiers and is solely responsible for any liability or damages resulting from Customer’s failure to maintain that confidentiality. Customer is solely and fully responsible and liable for all activities that occur under Customer’s Lingo account, assigned telephone number(s), password, user ID, or IP address. Customer agrees to ensure Customer exits from Customer’s online account as applicable at the end of each session and to periodically change Customer’s password.

If Customer suspects any breach of security such as loss, theft, public use or unauthorized disclosure or use of the Services, Customer’s Lingo account, password, user ID, or any credit card number provided to Lingo, Customer must immediately contact Customer Service.

Assumption of Risk; Hacking. There is a risk that other users may attempt to access Customer’s Services, such as through the internet or connected networks or through hacking. Customer acknowledges this risk as inherent to the nature of the Services and Customer agrees to take full responsibility for maintaining adequate security precautions to restrict access to the Services, or through the Services, to Customer’s facilities, equipment, hardware, software, systems, computers, servers, IP Addresses, telephone numbers and Lingo Equipment, to prevent hacking, theft, tampering and/or unauthorized access and prevent the fraudulent, unauthorized, illegal or improper use of the Lingo Services, equipment and systems and of the services, equipment and systems of non-Lingo third-parties.

In addition, Customer is responsible for establishing and maintaining such security measures to protect against PBX hacking and other such fraud or other hacking by external third-parties. Customer may contact Lingo if it needs any information relating to the prevention of PBX hacking.

Regardless of Customer’s Service, Customer agrees to pay any Service fees and charges (and any applicable taxes and governmental surcharges) incurred from the use of the Services (including usage charges) even if these result from the fraudulent, unauthorized, illegal or improper use of the Services by third-parties. Customer agrees to pay any claims, costs, damages, liabilities and expenses incurred by Lingo as a result of the fraudulent, unauthorized, illegal or improper use of the Lingo Services.

Customer agrees to notify Lingo immediately, by contacting Customer Service, if the Customer Equipment or Lingo Equipment is stolen or if Customer becomes aware at any time that Services are being stolen or fraudulently used. When Customer contacts Customer Service, Customer must provide Customer’s Lingo Account number and a detailed description of the circumstances of the theft or unauthorized use, including documentation (e.g., a copy of a police report). Customer will be responsible for all charges incurred under Customer’s Lingo account (including usage charges) until Customer reports the theft or fraudulent use of the Services. Customer will be responsible for stolen or damaged Equipment and is advised to maintain adequate insurance coverage to protect against such loss. Failure to provide notice to Lingo of any theft or fraudulent use of the Services or the Equipment in a timely manner may result in the termination of Customer’s Services and additional charges to Customer. 

9. Resale Prohibited

Customer is authorized to use the Services solely for its own internal business purposes. Customer is prohibited from reselling, or permitting to be resold, the Services or any portion thereof. In addition to other responsibilities under this Agreement, Customer agrees that it and anyone using the Services will (a) upon request, take all actions necessary in order to install and activate the Services; (b) comply with any Lingo Acceptable Use Policy applicable to the Services and published by Lingo from time to time (on the website); (c) comply with all federal, state, and local laws, rules, regulations and tariffs that apply to the Services or these Terms.

10. Completed Calls

Customer is liable for all completed calls made utilizing the Customer Equipment and/or the Lingo Equipment or any other equipment operated at Customer’s Service Locations, whether such calls are authorized or unauthorized, and regardless of suitability for Customer’s applications, and/or any failure of other network elements or services which may impact Customer’s ability to operate. Customer shall not hold Lingo liable for any fraudulent calls that may occur using the Lingo Business Service on any equipment located at the Customer’s Service Locations, including any fraud related to unauthorized access of Customer’s telecommunications equipment. Lingo or its underlying carriers reserve the right to discontinue furnishing Services, cancel the Customer’s account, and/or block the Customer’s access to the underlying carrier network, without incurring any liability, immediately and without notice, if Lingo deems that such action is necessary to prevent or to protect against fraud or to otherwise protect Lingo’s personnel, agents, facilities or Services. Regardless of whether or not Lingo blocks Service, Customer shall still be fully liable for all completed calls made using the Services, whether or not these are fraudulent.

11.  Service Levels

Lingo will provide Customer with the rights and remedies set forth in its service levels guidelines and Customer’s exclusive remedy or recovery for any loss of Service or network outages shall be as provided under such guidelines. Damages and credits arising out of or related to the Services shall not exceed the amount of the credit described in the service level guidelines. In addition, Customer may terminate the Service as described in Section 18 (b) below. All network outage credit requests are subject to Lingo’s review and verification. Customer must be current on all payments in order to receive credit under the service level guidelines. Credits will appear within two (2) billing cycles after credit approval.

12. Lingo as Reseller or Licensor

Lingo is acting only as a reseller or licensor of certain components of the Services (certain services, hardware, software and equipment) which components are provided or have been manufactured by a third-parties (“Non-Lingo Products and Services”). Customer agrees that Lingo may release Customer’s name and billing information directly to such third-parties so that Customer may be billed directly, if applicable, as to those Non-Lingo Products and Services. Lingo shall not be responsible for any changes in the Services that caused the Non-Lingo Products and Services to become obsolete, require modification or alteration, or that otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Lingo Products and Services sold, licensed, used or provided by Lingo to Customer or purchased directly by Customer and used in connection with the Services will not be deemed a breach of Lingo’s obligations under this Service Schedule. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Lingo Products and Services are limited to those rights extended to Customer by the manufacturer or provider of such Non-Lingo Products and Services. Customer is entitled to use any Non-Lingo Products and Services supplied by Lingo only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Lingo to Customer through any Non-Lingo Products and Services and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Services or Non-Lingo Products and Services, or any technical data derived therefrom, in violation of any applicable United States or foreign law. Customer understands and agrees that Lingo utilizes various underlying providers to provide portions of the Services to Customer and reserves the right, without consent of Customer, to change underlying providers at any time during the Service Term.

13. Toll-Free Directory Assistance

Upon Customer request and to the extent available to Lingo, Toll-Free Directory Assistance (“TFDA”) listing is available for those toll-free numbers provided to Customer by Lingo. Since TFDA is provided either via Lingo’s underlying network provider or via a third-party, provisioning is subject to the applicable terms and conditions and/or policies and procedures of such other parties. Customer understands that toll-free numbers listed with TFDA are only available either on a call-in basis or online, and not via a directory publication. Charges for the monthly listing fee for the TFDA service are set forth in Lingo Service Details and Rates or Lingo tariffs. These charges are subject to change without notice to the Customer.

14. Service Locations; Relocation

Lingo will only provide the types of Services listed on the Service Order Form for the Service Location listed on the Service Order Form for use solely by Customer at such Service Locations. Only one class of Lingo value bundle may be purchased for any Service Location. For Customers with multiple Service Locations, Lingo has the option (but not the obligation) to apply Per Minute Usage Rates from one Service Location to another Service Location. If Customer desires to transfer Service for any Service Location to a different Service Location, Customer must request that move in writing to Lingo at least six (6) weeks in advance. If Customer’s new Service Location is within Lingo’s service area, then Customer and Lingo must enter into a new agreement with a Service Term of no less than the original Initial Term. The new agreement may include additional or different installation, non-recurring, recurring and other charges and fees, including without limitation non-recurring fees for circuit and the premises installation. If the Service at the prior location terminates upon Customer’s relocation and Customer’s new Service Location is not within Lingo’s service area, or Lingo and Customer do not enter into a new agreement for the new location, then Customer will be deemed to have terminated the Service and Early Termination Charges will apply if the termination occurs during the Initial Term.

15. Call Jurisdiction

Call jurisdiction for rating of calls as Local or Long Distance will be based on the Charge Number (“CGN”). If the CGN is not valid (as determined by Lingo), then call jurisdiction will be based on the Calling Party Number (“CPN”). If the CPN is not valid (as determined by Lingo), then the call jurisdiction will be based on the Billing Telephone Number (“BTN”) as determined by Lingo. Local service is limited to Lingo’s rate centers for local terminating services. If no local terminating services are provided by Lingo in an area, calls will be rated as long distance in such areas, regardless of actual call jurisdiction.

16. Optional Monitoring

Lingo has no obligation to monitor the Commercial Services, but may do so and disclose information regarding the use of the Services for any reason if Lingo, in its sole and absolute discretion, believes that it is reasonable to do so, including, without limitation, to satisfy laws, regulations, or governmental or legal requests; operate the services properly; or protect itself and its customers. Lingo may immediately remove Customer’s materials or information from Lingo’s servers, in whole or in part, where Lingo, in its sole and absolute discretion, determines that such materials or information possibly infringe another’s property rights or possibly violate these Terms or other policies or laws.

17. Service Interruptions, Limits, Modifications

Service may be temporarily interrupted or otherwise limited for a variety of reasons; some beyond the control of Lingo. Lingo reserves the right to refuse credit allowances for interruptions of Service. Lingo also reserves the right to modify or discontinue, temporarily or permanently, at any time and from time to time, the Services (or any function or feature of the Services or any part thereof) without liability. You acknowledge that Lingo may establish general practices and limits concerning use of the Services, including without limitation, the limits set forth in any Service Schedule or on the Lingo Websites.

18. Termination Rights; Early Termination Charges

(a) Lingo. Lingo may terminate and/or limit, suspend or discontinue Commercial Service:

(1) If Customer fails to take any action requested by Lingo to establish Service, and such failure continues for ten (10) days after notice from Lingo; or

(2) Customer fails to perform or comply with any other obligation under these Lingo Commercial Terms and Conditions, including any applicable Service Order or Service Schedule and such failure continues without being cured to Lingo’s reasonable satisfaction within fifteen (15) days after notice from Lingo;

(3) If Customer fails to:

(i) Pay an invoice and this failure remains uncorrected for fifteen (15) days after the due date; or

(ii) Fails to provide any security or additional security within the timeframe required under these Terms;

(4) Immediately, if:

(i) Usage by Customer exceeds or is projected to exceed Customer’s credit limit without the

prior written consent of Lingo;

(ii) Customer provides false or misleading Customer credit, billing or other information;

(iii) Customer (or its parent) files any voluntary or involuntary petition in bankruptcy court which

names Customer (or its parent) as the debtor or upon filing to seek dissolution or cessation of Customer’s (or its parent’s) business operations;

(iv) Lingo is ordered or requested to terminate Service by a governmental entity or upon state PUC or FCC  approval, and Commission required customer notice, should Lingo file to withdraw its authority to provide Services;

(v) The Service(s) are no longer made available to Lingo by the underlying carrier or the underlying facilities are no longer available;

(vi) Lingo, in its sole and absolute discretion, detects fraudulent or illegal use of the Services, or Lingo, in its sole and absolute discretion, believes that Customer has materially violated Lingo’s service policies or determines that Customer’s use of the Services is prohibited (including without limitation, with respect to web hosting services, if Customer’s web site or content violates any Lingo web hosting acceptable use policy or these Terms).

(b) Customer. Customer may terminate its Commercial Service without liability:

(1) In accordance with any applicable service level guidelines, or

(2) If Lingo fails to perform or comply with any material obligation under these Terms or any Service Schedule or Service Order and such failure is not cured (as reasonably determined by Lingo) within thirty (30) days after written notice from Customer.

(c)  Termination for Convenience. Customer may terminate the Service at any other time so long as Customer pays Early Termination Charges specified in this Service Schedule. Customer is responsible for all fees and charges incurred prior to any termination of the Service.

(d) Early Termination Charges. In the event Customer terminates Service prior to the end of the Initial Term or any Renewal Term or has Service discontinued for any reason (other than under Section 18 (b), above, Customer agrees to pay Lingo early termination charges (“Early Termination Charges”) as liquidated damages and a reasonable approximation of Lingo’s loss from early termination (not as a penalty), in an amount equal to:

(1) All fixed recurring charges (including all “Minimum Usage Commits,” if any) for the number

of months remaining in the current Term (pro-rated for any partial months), and

(2) All outstanding but unpaid non-recurring charges and other unpaid charges incurred prior to

termination.

 

In addition, Customer agrees to return the Lingo Equipment in accordance with these Terms.

Any suspension or termination of the Service may continue until satisfactory arrangements have been made for the payment of all past unpaid charges. While Customer’s Service is suspended, billing will continue for Customer’s recurring charges and any usage-based charges plus any applicable taxes and governmental surcharges.

Prepaid Plans. Prepaid Service plans terminate (a) when Customer provides written notice of intent not to renew Services at least ninety (90) days prior to the end of the current term, (b) when the charges applicable to the Service cannot be charged to Customer’s authorized credit card for any reason (c) when the account balance is depleted, if the account is not recharged, (d) six (6) months from the date of the first charge or last recharge, whichever occurs latest (“Account Expiration”). An Administrative Account Fee may be assessed upon the date of the Account Expiration.  Customer must provide written notice of intent not to renew Services at least ninety (90) days prior to the end of the current term to stop further prepaid charges to Customer’s credit card account.

Termination or cancellation of Service by Lingo does not excuse Customer from paying all unpaid and/or accrued charges due in relation to these Terms, including any early termination fees that may apply, all of which immediately become due and payable. If Customer leases Lingo Equipment, Customer may also be charged its full replacement cost if the Lingo Equipment is not returned in accordance with Section 5. Termination or suspension by Lingo of the Services also constitutes termination or suspension (as applicable) of Customer’s license to use any Software.

Preferred Provider Changes. Lingo will continue to bill Customer’s account until (a) Customer’s Service or telephone number is successfully transferred to an alternate carrier or provider and (b) Customer contacts Lingo to cancel Customer’s Lingo Service. It is Customer’s responsibility to make the necessary arrangements with Customer’s new provider to transfer Customer’s service. If Lingo is Customer’s local provider or preferred long distance carrier, that means that Customer will need to contact Customer’s new local exchange carrier to transfer such Services to stop further billing by us. The new service provider will transfer the services; Lingo cannot initiate or effectuate the transfer. However, Customer must also contact Lingo to cancel the Lingo Services. Until the transfer of Service is successful and confirmed, Customer will remain responsible for charges applicable to Customer’s Lingo Service. 

Porting from Lingo.  Customer may be able to transfer, or port, Customer’s current Lingo phone number to another service provider. To avoid interruption of service, it is strongly recommended that Customer first verify that Customer’s phone number has been successfully ported to Customer’s new carrier or service provider prior to terminating Services with Lingo.  Should Customer’s Service be terminated with Lingo prior to successfully porting Customer’s number to a new service provider, Lingo will not be able to port that number to Customer’s new service provider.

Please be aware that Lingo will only terminate Services specifically designated by Customer.  For that reason, if Customer is seeking to port multiple numbers and/or additional Equipment, Customer must inform Lingo of Customer’s intent to terminate all the Services on Customer’s account, prior to the successful completion of the requested port.

If a port is unsuccessful for any reason, it is imperative that Customer again requests disconnection as stated in these Terms.  Otherwise, Customer’s Service will otherwise remain active and Customer will continue to be responsible for all charges and fees associated with Customer’s Lingo Account.

Once Customer’s Service is terminated and/or Customer’s telephone number has been ported, Customer will remain responsible for all charges and fees through the end of the current billing cycle, including any unbilled charges, as well as any applicable early termination fees that apply.

Unless required by law, recurring fees will not be prorated in any partial termination month.

19. Disclaimer of Warranties; Limitation of Liability

YOU UNDERSTAND AND AGREE THAT:

(a) No Warranties:

(1) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LINGO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

(2) LINGO MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (v) THE SERVICES WILL NOT CONFLICT OR INTERFERE WITH OTHER SERVICES FROM LINGO OR THIRD-PARTIES THAT YOU RECEIVE AT YOUR PREMISES.

(3) Credit allowances for interruption of Service or Service Outages or for Service defects or errors, including international calling services, will be not be provided, unless required by law or specified in service level guidelines.

(4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LINGO OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

(b) Limitation of Liability:

(1) YOU UNDERSTAND AND AGREE THAT, UNLESS PROHIBITED BY LAW, LINGO SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF REVENUE OR PROFITS, BUSINESS OR GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF LINGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) USE OF THE SERVICES (WHICH INCLUDES EQUIPMENT, SOFTWARE, AND INSIDE OR OUTSIDE WIRING), (b) THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, (c) THE INSTALLATION, MAINTENANCE, REMOVAL, OR TECHNICAL SUPPORT OF THE SERVICES, EVEN IF SUCH DAMAGE RESULTS FROM THE NEGLIGENCE OR GROSS NEGLIGENCE OF AN LINGO INSTALLER, TECHNICIAN, OR OTHER REPRESENTATIVE, AND/OR (d) ANY INABILITY TO REACH 911 EMERGENCY SERVICES, ANY ALLEGED INTERFERENCE WITH ALARM OR MEDICAL MONITORING SIGNALS, OR ANY FAILURE OF ALARM OR MEDICAL MONITORING SIGNALS TO REACH THEIR INTENDED MONITORING STATIONS ALLEGEDLY AS A RESULT OF THE SERVICES.  (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.)

(2)  IN ADDITION, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH LINGO IN CONNECTION WITH THE SERVICE, INCLUDING ANY DIRECT DAMAGES ARISING FROM OR RESULTING FROM ANY OF THE CAUSES LISTED IN SECTIONS B(1) (a) THROUGH (d) IN THE PRECEDING PARAGRAPH, IS A REFUND NOT TO EXCEED THE TOTAL AMOUNT OF THE SERVICE FEES PAID DURING THE IMMEDIATELY PRECEEDING TWELVE MONTH PERIOD.

(c) Network Management:

Lingo may (1) deny, for any lawful reason, your request for Service, or (2) limit or allocate the facilities available to or used by any Service, if necessary, to manage its network in an efficient manner, meet reasonable Service expectations, furnish Service to existing and future customers based on forecasted customer requirements, or for any other lawful reason.  Lingo may, without notice (consistent with governing laws or regulations), block traffic to or from specific countries, country codes, cities, city codes, local telephone exchanges (“NXX exchanges”), individual telephone stations, groups or ranges of individual telephone stations, or calls using certain customer authorization codes, whenever Lingo deems it necessary to take such action to prevent (a) the unlawful use of Service; (b) nonpayment for Service; (c) the use of Service in violation of this Agreement; or (d) network blockage or the degradation of Service furnished to you or other customers.

20. Notice from Lingo to You

As noted in Section 32, certain rates and charges shall remain unchanged during Customer’s Initial Term; others will be subject to change with prior notice as specified in that Section.

Lingo may, from time to time, change the Terms and the other rates and charges for Services by giving notice of the changes. Unless otherwise stated in these Terms, notice to you may be made via email, regular mail, posting online at www.lingo.com (or on any other website operated by Lingo that describes your Service), recorded announcement, bill message, bill insert, postcard, letter, or call to your billed telephone number.  It is your responsibility to check these materials for updates and notices.  Unless otherwise stated in these Terms, notice will be considered given, and will become effective prospectively, fifteen (15) days (30 days for Canadian customers) after the date that the change is posted on www.lingo.com or fifteen (15) days (30 days for Canadian customers) after such change is communicated to you as specified in this Section, or as otherwise required by law.

21. Notice from You to Lingo

All notices or other communications under the Agreement, except as provided for elsewhere herein, must be in writing and will be deemed to have been duly delivered or given when (a) delivered by hand (with written confirmation of receipt) before 5:00 p.m. local time on a business day (or otherwise on the next succeeding business day); (b) sent by email before 5:00 p.m. local time on a business day (or otherwise on the next succeeding business day) and a written confirmation of the transmission is received by the sender; or (c) the next business day after being deposited for delivery with a nationally recognized overnight delivery service, such as Federal Express, UPS, DHL, and addressed or sent to the appropriate address or email address as set forth below (or to such other addresses or facsimile numbers as a Party may designate by notice to the other Party).

Mailing Address:              Lingo Telecom, LLC.

                                                Attn: Contracts Management

25925 Telegraph Rd., Suite 210

Southfield, MI 48033

Email:    contracts@lingo.com

 

22. Intellectual Property

All portions of the Services and Equipment and any firmware or software used to provide the Services or provided to you in conjunction with providing the Services, or embedded in the Equipment, and all Services, information, documents, and materials on related website(s) are the property of Lingo or third-party providers and 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 “Marks”) of Lingo or third-party providers are and shall remain the exclusive property of Lingo or third-party providers, and nothing in this Agreement shall grant you the right or license to use such Marks.

23. Indemnity

You agree to indemnify, defend and hold harmless Lingo and its direct and indirect subsidiaries and affiliates and the directors, officers, agents, and employees of any of these (the “Lingo Indemnified Parties”) from any claim, demand, action, citation, or legal proceeding, including, but not limited to, those arising out of or resulting from the death or bodily injury of any person, or the damage, loss, or destruction of any real or tangible personal property, and for reasonable attorneys’ fees, made by any party against the Lingo Indemnified Parties that arise out of or result from your use of or inability to use the Services or your violation of any of these Terms, or your violation of any rights of any third-party.

24. Dispute Resolution

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

(a) In this Section 24, references to “Lingo” “Customer,” “you,” and “us” include our respective subsidiaries, affiliates, providers, and the agents, employees, predecessors in interest, successors, and assigns, of any of these as well as all authorized or unauthorized users or beneficiaries of the Services or Equipment under this or prior Agreements between us.

Most concerns can be resolved quickly by contacting Customer Service. If we cannot agree on an informal resolution, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction. However, any action or claim by Lingo for collection of payment will not be subject to the arbitration or small claims court requirements. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court, and is subject to very limited review by courts. Arbitrators can award the damages that a court can award subject to any limitations specified in these Terms. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.

(b) Arbitration Agreement

(1)  IF YOU THINK THERE HAS BEEN AN ERROR IN A CHARGE POSTED TO YOUR ACCOUNT OR YOU HAVE A DISPUTE ABOUT OUR SERVICES, YOU MUST FIRST NOTIFY US WITHIN THIRTY (30) DAYS AFTER THE CHARGE IS POSTED TO YOUR ACCOUNT BALANCE.

IF WE HAVE NOT RESOLVED THIS DISPUTE TO YOUR SATISFACTION, ANY CLAIM OR DISPUTE ARISING OUT OF THIS OR ANY OTHER MATTER RELATING TO THIS AGREEMENT, MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE DATE ON WHICH THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES.

 

(2) Lingo and Customer agree to arbitrate all disputes and claims arising out of or relating to any aspect of the Services. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

• claims arising out of or relating to any aspect of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);

• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

• claims that may arise after the termination of this Agreement.

Notwithstanding the foregoing, either party may bring an individual lawsuit (instead of arbitration) but only in small claims court.

This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission (FCC) or the Canadian Radio-television Telecommunications Commission. Such agencies can, if the law allows, seek relief against us on your behalf.

(3) Waiver of Certain Punitive Damage Claims. The arbitrator will have no authority to award consequential, incidental, punitive, or exemplary damages.  Both you and Lingo expressly waive any rights to any such damages, whether the proceeding takes place before an arbitrator or court of law. To the extent such damages may not be so waived, if an arbitrator or judge decides to award such damages they shall be limited to the total amount of the Service fees paid during the immediately preceding twelve (12) month period. Unless applicable substantive law provides otherwise, each party pays its own expenses to participate in the arbitration or legal proceeding, including attorney’s fees and expenses for witnesses and production and presentation of evidence. All waivers specified in this Section apply even if these Terms are amended or modified and they will survive termination of this Agreement.

(4) Waiver of Jury Trial; Jurisdiction. IF FOR SOME REASON THESE ARBITRATION REQUIREMENTS DO NOT APPLY, YOU AND WE EACH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY. INSTEAD, A JUDGE WILL DECIDE ANY DISPUTE. YOU AGREE TO SUBMIT YOURSELF TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS.

(5) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Lingo should be addressed to: Lingo Telecom, LLC., Attn.: Legal Department, 25925 Telegraph Rd., Suite 210, Southfield, MI 48033 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Lingo and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Lingo may commence an arbitration proceeding.

(6) All administrative fees and expenses of arbitration will be divided equally between you and us. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org , or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except those issues relating to the scope and enforceability of the arbitration. Unless Lingo and you agree otherwise, any arbitration hearings will take place in the county (or province) of your billing address.  If your claim is for $10,000 or less, you and we agree that the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic hearing, or, if you and we agree, by an in-person hearing. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of fees and costs will be governed by the AAA Rules. In such case, you agree to reimburse Lingo for these fees and costs. Each party bears the expense of its own preparation and presentation of evidence at the arbitration hearing, including the expense of its own counsel, experts, witnesses and other preparation.

(7) The arbitrator may award declaratory or injunctive relief. The arbitrator may not award punitive or exemplary damages. The arbitrator may award a monetary award in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND LINGO AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Lingo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding anything in this Arbitration Agreement to the contrary, if this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

Any arbitration shall remain confidential. Neither you nor Lingo may disclose the existence, content or results of any arbitration or award, except as may be required by law, or to confirm and enforce an award.

25. Assignment

Lingo may assign this Agreement and its rights and obligations hereunder or pertaining to the provision of the Services, or parts thereof, to a parent or affiliated company or to a successor in interest, with or without notice to you, unless required by law. You may not assign this Agreement or your rights or obligations hereunder or pertaining to the Services or any parts thereof without the written consent of Lingo.

26. Force Majeure

Other than with respect to Customer’s failure (a) to make payments when due, (b) provide any required security or (c) implement Security Measures, neither Lingo nor Customer shall be liable for delays, failures to perform, damages, losses, destruction, or malfunction of any equipment, or any consequence thereof, caused by, or due to any cause beyond its reasonable control, including, but not limited to, fire, earthquake, flood, water, the elements, acts of God, third-party labor disputes, utility curtailments, cable cuts, power failures, explosions, civil disturbances, vandalism, governmental actions, shortages of equipment or supplies, availability of underlying carrier services, or unavailability of transportation or facilities. Lingo shall be excused from its failure to perform any obligation to the extent such failure is caused by Customer’s delay.

27. Regulatory Modifications

If the Federal Communications Commission (“FCC”), a state Public Utility or Service Commission, a court of competent jurisdiction, (or in Canada, the Canadian Radio-television Telecommunications Commission or any provincial authority) or other governmental entity issues a rule, regulation, law or order that has the effect of canceling, changing or superseding any material term or provision of the Service (“Regulatory Requirement”), we may modify, discontinue or limit the Service, or impose requirements, as necessary to meet changing regulatory rules and standards.

28. No Relationship

No agents, representatives or employees of other carriers shall be deemed to be agents or employees of Lingo. Nothing in the Agreement, or in the course of dealing between Lingo and Customer shall be deemed to create between them (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship. Neither Party shall have the authority to commit or legally bind the other Party in any manner whatsoever, including, but not limited to, the acceptance or making of any agreement, representation or warranty.

29. Waivers and Amendments

Unless otherwise expressly specified in these Terms (including any applicable Service Order, Service Schedule or acceptable use policy):

(a) No failure or delay by either Lingo or the Customer in exercising any right, power or remedy will operate as a waiver of that right (i.e., all waivers will be enforceable only if it is in writing and signed by the party waiving the term or condition); and

(b) This Agreement between Lingo and Customer may not be modified or amended except by a writing signed by both Lingo and Customer (provided, however that the Agreement may be amended by any addendum, attachment or change order executed by Customer and accepted by Lingo). Notwithstanding the foregoing, Lingo may modify the availability and scope of its Services by giving Customer no less than fifteen (15) days prior written notice of said modifications).

30. General Terms

(1) These Terms do not provide any third-party with a remedy, claim, or right of reimbursement.

(2) These Terms (including the contents of any Service Schedules, Service Orders, tariffs, price lists, signed contracts, policies, service level guidelines, or other documents referenced herein and applicable to your Service) constitute the entire agreement between Lingo and Customer and supersede any prior agreements and representations between Customer and Lingo with respect to the subject matter of these Terms, the Services and Equipment.

(3) These Terms and the relationship between Customer and Lingo will be governed by the law of the State of Texas for U.S. Customers (or the Province of British Columbia for Canadian Customers) except to the extent such law is preempted by or is inconsistent with applicable federal or national law.

(4) If any provision of these Terms is found by a court or agency of competent jurisdiction to be unenforceable, Customer and Lingo nevertheless agree that the remaining provisions of these Terms shall remain in full force and effect.  The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that provision is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.

(5) To the fullest extent permitted by law, you and Lingo agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or arising from or related to these Terms must be filed within two (2) years after such claim or cause of action arose or be forever barred.

(6) The section titles and paragraph headings in these Terms are for convenience only and have no legal or contractual effect.

(7) All sections relating to confidentiality, limitation of liability, indemnity and other terms that by their nature and import are intended to survive, shall survive the termination or expiration of this Agreement.

 

II.                  Rates and Charges

31. Fees and Charges; Taxes and Governmental Surcharges; Collection

Rates, Charges and Taxes. Customer agrees to pay all recurring, nonrecurring, usage and access charges, and charges for features, data usage, directory listing, directory assistance, calling card, operator assistance (such as collect calls), and for charges incurred at Customer’s specific request, and charges and administrative fees related to all build out or installations, associated Equipment and Equipment installation and maintenance, and all other charges associated with your Lingo Services. This responsibility is not changed by virtue of any use, misuse, or abuse of your Services undertaken or caused by third-parties. If you subscribe to or activate Services on behalf of another but were unauthorized to do so, you will be personally responsible for all charges to the account and will be fully bound by these Terms as though you had activated Services on your own behalf. Any fixed recurring charge applicable to your Service is billed in advance and applies whether or not you make any calls, and whether or not your billing period covers a full billing cycle, (unless proration of the recurring charge is required by law). If you discontinue your Lingo Services as your primary local or long distance carrier, you must contact your new service provider and Lingo to cancel Lingo Services.  Until the transfer of the Service is successful and confirmed, you will remain responsible for charges applicable to your Lingo Services.

DID Numbers/My Country. Lingo charges an additional monthly fee for international (non-United States) direct inward dial phone numbers (“DID”) for those customers who wish to order that feature.  Monthly fees for international DID numbers vary and are available from Lingo’s Customer Service Department.  Customers that have international DIDs are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without notice and Lingo may be required to discontinue DID Service, without notice. Lingo reserves the right to discontinue International DID services for any reason at any time and is only obligated to refund the pro-rated monthly fee.

Minimum Usage Commit/Guarantee Shortfall Charge. The Minimum Usage Commit or Minimum Usage Guarantee for each billing cycle will be stated on the Service Order Form. If Customer’s net charges (after any applied discounts) for local, long distance, and toll-free usage during any billing cycle total less than the “Minimum Usage Commit” or “Minimum Usage Guarantee” noted on the Service Order Form, then, in addition to paying for the actual recurring and nonrecurring charges incurred, Customer also shall pay the Minimum Usage Commit or Minimum Usage Guarantee “shortfall” charge for such billing cycle calculated as the difference between Minimum Usage Commit or Minimum Commit Guarantee and the actual usage charges incurred by Customer for local, long distance, and toll-free usage (“the Minimum Usage Commit/Guarantee Shortfall Charge”). Federal Universal Service surcharges, and taxes and governmental surcharges, non-recurring charges, operator/directory assistance charges, local loop and third-party charges and regulatory pass-through charges are not included in the usage that counts toward the “Minimum Usage Commit” or “Minimum Usage Guarantee“. Customer’s “Minimum Usage Commit” or “Minimum Usage Guarantee“ (if any) will begin on the first day of the first full billing cycle of the Service Term.

International Mobile Destinations. Lingo’s advertised rates for international calls are generally the rates charged for calls to landline telephones. Most calls to international mobile telephones are charged a different (usually higher) rate than calls to landline telephones.

False Callout/No Trouble Found (NTF) Charges. Customer may be charged at Lingo’s standard hourly rates when a reported Service interruption results in the use of the Lingo’s technical support staff or the dispatch of Lingo technician and: (a) the technician is denied access to the Customer’s premises; (b) no trouble is found by the technician; or (c) the cause of the interruption was not due to Lingo facilities, Equipment or systems used to provide Service.

Routine/Non-routine Installation/Date Moves/Maintenance. Customer understands that the installation charge stated in the Service Order Form covers standard installation configurations only. Any non-standard or custom installation is subject to additional charges. At Customer’s request, Lingo will install or maintain Services outside of Lingo’s regular business hours. In such cases, charges based on actual labor and other costs incurred will apply, as well any fees associated with the administration of any third party charges. If installation or maintenance extends beyond Lingo’s regular business hours, additional charges may also apply. In addition, Customer will be charged a fee associated with any date changes or cancellations by Customer for a scheduled installation or port. If hazardous conditions are present where installation or maintenance is requested by Customer, and Lingo chooses to perform the installation or maintenance, additional charges will apply. Non-routine Installation and Maintenance where the Customer’s site does not provide adequate facilities, the site requires extended wiring or any other services that Lingo determines to be non-routine, then Lingo may perform these services at its standard hourly rates and recover all other expenses including materials to complete such services.

Customer Expedite Charges. At Customer’s request, Lingo will process orders to install or maintain Services outside of Lingo’s standard service level agreements or hours of operations. In such cases, Lingo will charge Lingo’s Expedited Fee, Lingo’s Standard Hourly Rate and any other costs incurred by Lingo. Customer acknowledges that such expedited requests may not result in Services being rendered sooner than the standard service level intervals. Regardless of the actual delivery of the Services, Customer agrees the Expedited Charges and any other costs will still be due by Customer.

Activation/Reactivation/Deactivation Charges. Customer will pay charges associated with activating, reactivating, or deactivating Customer’s traffic or Services on Lingo’s network.

Early Termination Third-Party Charges. If Customer submits a change order that is accepted by Lingo that will result in an early termination charge to Lingo from an underlying provider, Customer shall pay Lingo the amount of such early termination charge in addition to other fees due hereunder.

Local Service Charges. Customer agrees to pay Lingo as a result of Services provided to Customer, any and all local service assessed charges resulting from features that are part of the Customer’s Services when ported, including Non-Published Listing/Non-Listing, Voice Mailboxes, Foreign Listing, Metro Services, and charges associated with PICC services (other than access charges otherwise included under pricing).

Ancillary Charges.  Customer agrees to pay ancillary charges and fees added from time to time by Lingo upon written notice to Customer.

Paper Bill Fee. If applicable and where permitted by law, the Paper Bill Fee is applied to customers who choose to receive paper bills. The Paper Bill Fee is applied per billing cycle and equals $2.00 per invoice.

Third-Party Billing. You are also responsible for any charges from third-parties that arise when you use your phone numbers as a billing mechanism for third-party products and services.

911 and E911 Fees.  Lingo will assess a fee for providing 911 and E911 Services.

Federal Universal Service Surcharge: Lingo imposes a surcharge to recover the Federal Universal Service Fee (“FUSF”) that all telecommunications carriers are required to pay to the federal program that ensures that basic phone service is available in all areas of the country at affordable rates. This surcharge is not a government mandated charge but is added to invoices to recover this cost from customers. The FUSF contribution percentage is reviewed and adjusted quarterly by the FCC.

Subscriber Line Charge or End User Common Line Charge: Lingo imposes an access surcharge to recover the costs of interconnecting with the incumbent local exchange carrier or an interexchange carrier to the local network. This is a monthly flat rate charge.

Taxes and Governmental Surcharges. Customer agrees to pay all taxes and governmental fees, surcharges, and assessments applicable to the Services. In addition, in order to provide Customer with the Services, Lingo may pay taxes and governmental fees and surcharges to the federal and state governments and to municipalities and other governmental entities, which Lingo may pass on to Customer as a surcharge or regulatory fee as permitted by law.

Exemptions. If Customer is exempt from payment of any Taxes or Federal Universal Service Surcharges, Customer may provide Lingo with a valid original exemption certificate in a form and substance satisfactory to Lingo (an “Exemption Certificate”). The exemption will only apply to Taxes and USF Surcharges incurred after the date Lingo receives the Exemption Certificate. Customer will not receive credit for any Taxes and USF Surcharges already paid by Lingo prior to processing a valid Exemption Certificate, and Customer must seek credit directly from the taxing jurisdiction. If Customer provides Lingo with a valid original Exemption Certificate, Customer is responsible for the collection and remittance of all Federal, state and local sales, use, excise or utility taxes and governmental assessments, surcharges or fees and for all USF contributions pertaining to Customer’s use of the Services, as may be applicable. Lingo may revoke the Exemption Certificate at any time, and Customer shall immediately remit payment to Lingo for any Taxes and USF Surcharges owed for previous billing periods but not paid, if Lingo determines the information or disclosures in the Exemption Certificate are not, were not or will not be, true, correct and accurate in all respects.

Rounding. Each call completed will have an initial minimum charge of at least one minute, unless a greater or lesser billing increment is specified in the Service Schedule, and any time beyond that minimum will be billed in additional one minute increments, rounded up to the next whole minute, unless a greater or lesser billing increment is specified in the Service Schedule.

Timing of Calls. Timing of metered calls generally begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom Lingo must interconnect in order to terminate calls to foreign countries) designate a call as “answered” when the called party’s line rings or after a certain number of rings, and will charge Lingo for a completed call. In these situations, Lingo will charge for the call as if it were answered by the called party.

Call Duration. Lingo’s U.S. domestic rates set forth in its Rate Sheet, as modified from time to time, are contingent on Customer maintaining a call duration of greater than six (6) seconds for at least 80% of Customer’s calls in each month of the Term.  In any calendar month in which more than 20% of Customer’s calls are less than or equal to six (6) seconds, Customer acknowledges and agrees that, in addition to its standard charges for the Services set forth in the Rate Sheet, Lingo shall charge Customer for each U.S. domestic call that equals or is under six (6) seconds in length (each a “Short Duration Call”) an additional $.01 surcharge per Short Duration Call (“Short Duration Surcharge”). The Short Duration Surcharge shall be applied only on U.S. domestic calls above the 20% threshold.  Additionally, if the U.S. domestic traffic traversing a Customer’s trunk group or trunk groups has an average call duration of less than sixty (60) seconds over ten (10) consecutive calendar days, Customer will be subject to the $.01 Short Duration Surcharge per call. Any trunk group(s) for which the Short Duration Surcharges are applicable will not accommodate invalid ANI’s or DNIS, and will not utilize random number generators.  If Customer is subject to either of the two (2) short duration penalties in two (2) consecutive months, Lingo will implement the short duration rate deck on the trunk group(s) identified as violating the short duration thresholds.  The U.S. domestic short duration rate deck and its implementation shall become effective upon e-mail notification to Customer. Lingo may elect to suspend the Services to the trunk group(s) subject to the short duration rate decks at any time.

No Rollover. If Customer selects a plan that includes an unlimited or predetermined allotment of services (for example, an unlimited or predetermined allotment of voice minutes), unless otherwise specifically provided as part of such Service plan, any unused allotment of services from one billing cycle will not carry over to the next billing cycle.

No Refunds. Neither non-usage of the Service nor misdialing while using the Service entitles Customer to a credit for, or refund of, any portion of a payment made to us.

Collection. Lingo may assign unpaid late balances to a collection agency or attorney for appropriate action. Even if we accept late or partial payments (including those marked “Paid in Full” or similar text), it will not waive any of our rights to collect the full amount due to us for the Services.  Customer agrees to reimburse Lingo for all reasonable costs and legal expenses incurred to recover sums due, including the fees of any collection agency or attorney.  Customer expressly authorizes, and specifically consents to allowing Lingo and/or its outside collection agencies, outside counsel, or other agents to contact Customer in connection with any and all matters relating to unpaid past due charges billed by Lingo to you. Customer agrees that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, email address, or any other electronic address that Customer has provided, or may in the future provide, to Lingo. Customer agrees that any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set email messages delivered by an automatic emailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.

Returned Payment Charges: Customer will be charged a fee greater of $25 or 5% of the amount of the payment for any check or other instrument (including credit card charge-backs) tendered by Customer and returned unpaid by a financial institution for any reason.

32. Service and Rate Changes

Notwithstanding the provisions of the Terms to the contrary, during the Initial Term of the Lingo Commercial Services, Lingo will not increase the (a) Monthly Recurring Service Rates, (b) Minimum Usage Commit/Guarantee, (c) Voice Channel Charge, or (d) Per Minute Usage Rates (if applicable) for intrastate or interstate calls (i.e., calls originating and terminating within the continental U.S. and between the U.S. and Canada) that are stated on the Service Order Form. After the Initial Term, Lingo may revise and/or increase the rates and charges noted in (a) through (d) above at any time upon thirty (30) days prior written notice to Customer. Notification of any such changes and of any change to the terms and conditions of the Service will be provided consistent with Notice methods specified in Section 21 (Notice To You by Lingo) of these Terms.

Notwithstanding the foregoing, during the Initial and any Renewal Service Term, Lingo may change and/or increase the international per-minute rates and charges (for calls from the U.S. to countries other than Canada) and/or for calls to extended U.S. domestic destinations (i.e., U.S. destinations outside the continental U.S.) effective five (5) days after the date that the change is posted on www.lingo.com for your Services. In addition, during the Initial and any Renewal Service Term, Lingo may be forced to increase its Monthly Recurring Service Rates as a result of increased rate(s) or newly implemented underlying carrier charges.  In such an event, where applicable, Lingo shall provide a thirty (30) day written notice to the Customer. If the Customer elects to terminate the Services affected by the rate increase, the Customer shall be released from the term agreement relative to the Service(s) directly impacted by the rate increase with no early termination fee assessed. However, the Customer must notify Lingo within thirty (30) days of such notice in writing if Customer elects to terminate applicable Service(s).  Your continued use of the Services following notice of any changes to the Services and the applicable rates, fees and charges constitutes your acceptance of those changes.

33. Credit Evaluation; Credit Reporting Authorization

Customer must have and maintain credit satisfactory to Lingo to receive and continue to receive Services. As permitted under applicable laws and without limitation to other rights provided in these Terms or other applicable policies, Customer authorizes Lingo to (a) disclose Customer’s account information, including Customer’s payment history and confidential information, to credit reporting agencies or private credit reporting associations, and (b) periodically obtain and use Customer’s credit report and other credit information from any source in connection with Lingo’s offering of the Services. Customer understands that if Customer fails to fulfill the terms of Customer’s obligations under these Terms, Lingo may report Customer’s failure to a credit reporting agency.

We may require Customer to make deposits or advance payments for Services, which we may use to satisfy or offset against any unpaid balance due and owing to Lingo under Customer’s Lingo account. We may require additional advance payments or deposits if we determine that the initial payment was inadequate. Upon determination solely by Lingo of satisfactory payment history or as required by law, Lingo may begin refunding the deposit or advance payment through bill credits, cash payments, or as otherwise determined solely by Lingo. Based on Customer’s creditworthiness, we may require Customer to enroll, and remain enrolled, in an automatic payment or electronic funds transfer plan.

We will notify our business customers by letter, fax or e-mail if we will require security amounts in the form of (a) a cash deposit, (b) an irrevocable, stand-by letter of credit from a financial institution and in a format acceptable to Lingo, (c) a guarantee by one or more owners or affiliates of our customer or third-parties, or (d) some other form of security acceptable to Lingo in its sole discretion. Lingo is not obligated to provide or continue to provide any Services, until Lingo receives the required security.

Lingo may assign our business customers a credit limit. If Customer’s account balance goes beyond the limit we set, we may immediately interrupt or suspend service until the account balance is brought below the limit. Any charges incurred in excess of the credit limit become immediately due. In addition, if Customer’s charges for the Services are projected to exceed (based on Lingo’s measurement of Customer’s daily usage run rate), or do exceed, the credit limit, Lingo may require additional security of its choice from the customer in an amount to be determined by Lingo in its sole discretion. Customer must provide this additional security to Lingo within five (5) business days.

Lingo reserves the right at any time, upon notice to Customer, to withdraw credit approval for Customer, limit the amount of credit Lingo may make available to Customer, change the length of billing cycle and/or due date and/or change the security requirements applicable to Customer from time to time hereunder in Lingo’s sole discretion. Lingo shall be entitled to suspend or terminate, in whole or in part, any or all Services hereunder if Lingo has withdrawn its credit approval of Customer, Customer has exceeded or, in Lingo’s sole determination, will soon exceed its credit limit, or Customer has failed to comply with the then applicable security requirements hereunder.

Additionally, if at any time Lingo determines that, in its sole and absolute discretion, payment for Services may not be made when due, Lingo may suspend the Services. Lingo may suspend the Services, apply any deposit, draw on any letter of credit, collect from any guarantor, or apply other security if any amounts due by Customer for the Services (including early termination charges), not properly disputed, are not paid in full by the due date. Customer agrees to restore any security to the amounts previously in place after Lingo applies any of the security to Customer’s obligations. Lingo will return the unapplied portion of any deposit to Customer at the end of the Service Term. Interest will not be paid on advance payments or deposits unless required by law.

34. Invoicing and Payment

Invoices. On the first invoice following the Turn-Up Date, Customer agrees to pay (a) all non-recurring charges (b) the first billing cycle’s fixed recurring charge (prorated if it is a partial billing cycle) and (c) the fixed recurring charge for the second billing cycle.  Thereafter, fixed recurring charges (other than usage) will be billed in advance. Usage and Minimum Usage Commit Shortfall Charges will be assessed and billed in arrears, beginning with the second (2nd) invoice. Non-recurring and usage-based charges for the Services generally will be billed in the billing cycle following the transaction and may be back billed in a subsequent month to the extent allowed by applicable law. Any charges not included in your rate plan and any additional usage charges may be billed in a later billing period. We may initiate mid-cycle billing of additional amounts due that exceed $75.00.

Lingo will invoice Customer for the billing cycle specified for the Services selected by Customer. Lingo will invoice Customer via email, regular mail or another reasonably acceptable method to the Billing Address set forth on the Service Order Form. Customer represents that the address provided to Lingo for billing purposes is either Customer’s business street address or the post office box to which Customer receives all of its bills.  Unless otherwise permitted in the section below (titled “Billing Disputes”) Customer shall pay each invoice in full upon receipt in immediately available U.S. Dollars (Canadian Dollars for Canada Customers). No payment due for the Services is otherwise subject to reduction, set-off or adjustment of any nature by Customer. If payment is not received by the payment due date, Customer will be charged a late payment charge of one and one-half percent (1.5%) plus $1.50 per month (two percent (2%) per month for Canada customers), or the highest rate allowed by law, calculated from the billing date on all unpaid sums due and owing to Lingo. Payments made via credit card are subject to the “Credit Card” terms below (in the section titled “Credit Card Payments”). Customer agrees to pay any Service fees and charges (and any applicable taxes and governmental surcharges) incurred from the use of the Services (including usage charges) even if these result from the fraudulent, unauthorized, illegal or improper use of the Services by third-parties, including Customer’s employees. Customer agrees to pay any claims, costs, damages, liabilities and expenses incurred by Lingo as a result of Customer’s failure to establish and maintain adequate security measures to protect against the fraudulent, unauthorized, illegal or improper use of the Lingo Services.

Billing Agent. If we choose to use a payment agent instead of rendering a bill directly to Customer, then all charges due by Customer are payable to any agency duly authorized to receive such payments. The billing agent may be a local exchange telephone company, credit card company or other billing service.

Billing Disputes. Customer shall have the affirmative obligation of providing written notice of any good faith dispute within thirty (30) days of the invoice date (which notice shall include sufficient detail for Lingo to investigate the dispute). Customer may withhold payment only on amounts so disputed in good faith within such period and may not withhold payment of amounts disputed thereafter. If Customer does not report a dispute with respect to an invoice within such thirty (30) day period, Customer is deemed to have waived its dispute rights for that invoice and to have agreed to pay that invoice in full. If Customer has provided sufficient detail for investigation of a timely good faith dispute, Lingo will use reasonable good faith efforts to resolve and communicate its resolution of the dispute within thirty (30) days of its receipt of the dispute notice. If the dispute is resolved in Lingo’s favor, any amounts to be paid by Customer are subject to the late payment charges retroactive to the due date of the disputed invoice. Notwithstanding the foregoing, Customer shall not withhold any disputed amounts while its Lingo account is delinquent, and claims of fraudulent usage shall not constitute a valid basis for a dispute. If a dispute is resolved in Customer’s favor, Lingo will apply a credit for the amount determined by Lingo on Customer’s future invoices. Customer’s sole remedy for any disputed invoice shall be as provided in this Section, and Customer shall not be eligible to receive the cash value of any dispute resolved in Customer’s favor. Customer must be current on all payments (i.e., no balance older than thirty (30) days) in order to receive any credits.

Credit Card Payments. Customer may be asked to provide Lingo with a valid email address and a credit card number from a card issuer that we accept in order to activate Customer’s Services as well as other information to enable us to bill Customer’s credit card account. Customer authorizes the issuer of the credit card to pay any amounts incurred by Customer as described in these Terms without requiring a signed receipt, and Customer agrees that these Terms are to be accepted as authorization to the issuer of the credit card to pay all such amounts. Customer authorizes Lingo and/or any other company who bills products or services, or acts as billing agent for Lingo to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Customer’s credit card until such amounts are paid in full. In addition, Customer hereby authorizes Lingo to charge and/or place a hold on Customer’s credit card with respect to any unpaid charges related to the Services. Customer agrees to provide Lingo with updated credit card information upon Lingo’s request. If, at any time the information Customer previously provided is no longer valid, Customer is solely responsible for maintaining and updating the credit card information we have for Customer on file. Customer will remain responsible for all Lingo charges, fees, taxes and surcharges even if these cannot be paid through Customer’s authorized credit card account for any reason. Customer acknowledges and agrees that Lingo will have no liability for any non-sufficient funds or other charges incurred by Customer as a result of such attempts to charge, and/or place holds, on Customer’s credit card. If Customer mistakenly provides a different credit card number, instead of the number Customer intended to provide, Customer authorizes all charges described herein to be applied to the credit card number Customer has provided to us. In the event Customer is enrolled, or later enrolls, in an automatic payment or electronic funds transfer plan, Customer agrees that all sums described herein may be charged, at Lingo’s option, to the account number provided for such automatic payment or electronic funds transfer plan. Lingo reserves the right to charge credit card handling fees of up to three percent (4%) of the bill or any higher industry standard rate as may become applicable. All charges owed at the time of cancellation or termination will be immediately payable.  We will immediately charge the credit card you have provided to us for payment, or initiate an electronic funds transfer if that is your payment method, for all amounts due at that time. We will pursue collection for unpaid amounts and may report these unpaid charges to credit bureaus.

Automatic Prepayments. By registering for automatic prepayment Customer agrees to have an amount Customer selects deducted from Customer’s credit card account and added to Customer’s Lingo Account. All Lingo charges, rates and fees, plus applicable taxes and governmental surcharges applicable to Customer’s Services will automatically be deducted from Customer’s prepaid account balance. There are no refunds for any unused services and automatic prepayments are non-refundable. Customer must call us at least ninety (90) days prior to the end of Customer’s account billing cycle to stop further prepaid charges to Customer’s credit card account.

If any charges, fees, taxes or any other assessments cannot be deducted in real time from your account balance (for example, due to system errors, insufficient account balance or other factors), they will be deducted as soon as the cause of the delay is cured.

No Credit for Non-Usage or Misdialing.  Neither non-usage of the Services nor misdialing while using the services entitles Customer to a credit for, or refund of, any portion of a payment made to us.

Promotions. Any and all benefits provided you under a promotion are provided to you so long as you continue to meet qualification requirements. Any promotional benefits may be modified or terminated at any time as set forth in these Terms or if you change your Services after installation. Standard monthly rates will be charged at the conclusion of the promotional benefits period or when you no longer qualify for the benefits.

III.                Acceptable Use

 

34. Compliance with Laws and Acceptable Use; Usage Limitations

(a) In addition to compliance with Lingo’s current Acceptable Use Policy found at www.lingo.com/ legal/, Customers shall comply with all federal, state and local laws and regulations applicable to its business operations and use of the Services, including, without limitation, laws and regulations relating to data protection, privacy, do–not-call restrictions, CAN-SPAM, unsolicited faxes and anti-pornography laws. Customer agrees to abide by the Lingo’s acceptable use of services as provided herein as well as the acceptable use policies of underlying providers, as applicable.

(b) Further, Customer agrees that Customer will NOT use Customer’s Lingo Commercial Service:

(1) To engage in monitoring services, data transmissions, transmission of recorded material, auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for other connections that do not consist of uninterrupted live dialog between two individuals or for uses that result in excessive usage patterns inconsistent with normal commercial use.

(2) As an announcement service, particularly with regard to Lingo messaging, which is provided as an integral component of Lingo’s Service and is designed as a voicemail, not an announcement, service. Customer agrees that Customer will not use our voice and messaging services to send messages that (i) contain advertising or a commercial solicitation, (ii) are bulk messages (iii) are automatically generated; (iv) can disrupt Lingo’s network; (v) interfere with another customer’s use or enjoyment of Lingo’s Services; (vi) generate significant or serious customer complaints, or (vii) falsify or mask the sender/originator of the message. Use of Lingo messaging Services as an announcement service and/or other improper or excessive use may impair Lingo’s ability to provide reasonable service to other customers.

(c) For conduct that Lingo believes (i) is illegal, fraudulent, harassing, abusive, or intended to intimidate or threaten; (ii) constitutes a violation of any law, regulation, or tariff (including, without limitation, copyright and intellectual property laws); or (iii) is a violation of these Terms.

(d) For usage that exceeds traffic blends of 70/30 RBOC/non-RBOC usage for domestic long distance.  RBOC traffic that exceeds 30% of the traffic submitted to Lingo will be charged at 4 cents per minute. For usage that exceeds Lingo’s Acceptable Use Policy or the Acceptable Use Policy of an underlying provider of the Services.

(e) To connect Customer’s Lingo Service to a device which converts use of the Service to an outbound trunk line for use by more than one individual or entity.

If Lingo determines, in its sole discretion, that Customer is reselling or transferring the Lingo Service or that Customer is using the Lingo Service in violation of the above Terms, or otherwise determines that Customer’s usage is excessive or unreasonable, Lingo reserves the right, without advance notice, to immediately terminate, suspend or modify the Services, or to change Customer’s calling plan to a different offer on a prospective basis, including to one with no unlimited usage components or to one with higher rates, and in addition, to assess additional charges for each month in which excessive usage occurred. If Customer subscribes to a calling plan or service which includes unlimited calling of any type, UNLIMITED DOES NOT MEAN AND DOES NOT PERMIT EXCESSIVE OR UNREASONABLE USE.  Lingo reserves the right to cancel Customer’s Lingo Service at any time, with or without notice, if, as determined solely by Lingo, based on its network/service design and usage experience, Customer’s messaging service is (a) consistently generating excessive usage, or (b) affecting Lingo’s ability to provide reasonable service to other customers. Lingo may refer any illegal, fraudulent or harassing use to law enforcement authorities without notice to Customer.

 

IV.                911

35. Emergency 911 and E-911 (Traditional Voice and VoIP Services)

Registered Location. Customer shall be required to provide Lingo with the area code and number for all outpulsed Calling Party Numbers and provide Lingo with the true, accurate and complete physical street address for all equipment and devices associated with such Calling Party Number (“Registered Location”). Customer further agrees that all equipment and devices associated with such Calling Party Number and its domain shall not be moved to another location without first providing Lingo with written notification of such move and the new physical address on a change of address form designated by Lingo. Customer understands that the address registered with Lingo as being associated with a device and area code and number for the outpulsed Calling Party Number will be the address provided when Emergency 911 service is accessed from such device and/or area code and number.

Outpulsing. Customer’s premises equipment must outpulse a valid Calling Party Number (“CPN”) via the CPN field with an area code and telephone number previously registered with Lingo on Lingo’s approved form. The CPN that is outpulsed and the associated address previously registered with Lingo will be used for 911 routing. All outpulsed numbers must be registered with a true, accurate and complete street addresses for Lingo’s Emergency 911 service. Customer dialed Emergency 911 calls using unregistered CPN will not be recognized by 911 responders and emergency calls will fail.

Other Limitations. There are certain circumstances in which Emergency 911 service will not function properly or be available, including without limitation (a) any loss of power to the system, equipment or a particular telephone device, (b) the telephone device to which a particular number has been assigned is moved to another location or area where it was originally installed and registered (the Lingo Commercial Service does not cover “nomadic” devices unless Customer has subscribed to a VoIP Service – see the current Lingo VoIP Service Schedule), and (c) there is an outage, degradation or other disruption to Customer’s broadband connection. Lingo has made available to Customer stickers that may be placed on telephone equipment alerting users of the above limitations, and Lingo recommends Customer places them on each device that may be used to make calls. Also, any Service that does not include local service will not include Emergency 911 service.

V.                  Privacy

 

35. Privacy and CPNI

Lingo’s Privacy Policy (including information relating to Customer Proprietary Network Information (CPNI)) may be found at www.lingo.com/legal/.

36. Confidentiality

(a) Lingo and Customer each agree that all non-public information furnished by Lingo or Customer in connection with the Services:

(1)          that is designated or labeled as “confidential” or

(2)          that relates to the disclosing party’s financial, business operations, trade secrets, customers, prices and customer lists, is confidential and proprietary information or trade secrets (collectively, “Proprietary Information”) of the disclosing Party and will remain the sole and exclusive property of the disclosing Party.

(b) Except as provided for these Terms, Lingo and Customer shall each:

(1)          make reasonable efforts to protect the Proprietary Information from disclosure to anyone other than its employees and agents who have a need to know it in connection with the performance of the such Party’s obligations under these Terms; 

(2)          advise those to whom disclosure of the Proprietary Information is made of the confidential nature of the Proprietary Information and of these prohibitions;

(3)          not duplicate such Proprietary Information, except as reasonably necessary to perform the Party’s duties under these Terms;

(4)          not remove or destroy any proprietary or copyright notice appearing on the Proprietary Information; and

(5)          return all Proprietary Information (including all copies thereof in any media) to the disclosing Party at the disclosing Party’s request and in any event on the termination or expiration of the Service.

(c) If the receiving Party is requested or legally compelled by a governmental agency or court order or as otherwise required by law, or in any legal or arbitration proceeding; to disclose any of the Proprietary Information of the disclosing Party, the receiving Party agrees that it will provide the disclosing Party with prompt written notice of these requests (if permitted by law) so that the disclosing Party has the opportunity to pursue its legal and equitable remedies regarding potential disclosure.

37. No Publicity

Customer agrees not to issue any publicity materials, press releases or other public statements that refer to or describe any aspect of the Services without the prior written approval of Lingo.

 

Version 10.2024