By indicating your acceptance of these terms and conditions, you ("Subscriber" or "You") acknowledge and agree to be bound by the provisions of this agreement for the use of the SmashTel services ("services") provided by SmashTel, LLC, ("SmashTel"). If you are not willing to be bound by these terms and conditions do not click the box next to "I Agree to the Terms of Service" box. By clicking this box or by using or accessing the service, you agree to be bound by the following terms and conditions.
In response to the Children's Online Privacy Protection Act ("COPPA") we require that subscriber be at least 13 years old to use SmashTel services.
GRANT OF RIGHTS TO USE SERVICES
Effective upon acceptance of this Agreement, SmashTel hereby grants to Subscriber a personal, nonexclusive, nontransferable, revocable license to access and use the Services (as defined below), for Subscriber's use. Subscriber shall have no right to sell, resell, reproduce, duplicate, copy, distribute, create derivative works or exploit for commercial purposes, any portion of the Services, access to the Services, or use of the Services nor make any claim that it does have such right.
THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND SMASHTEL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF. SMASHTEL MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY SUBSCRIBER.
SMASHTEL MAKES NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. SMASHTEL IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL.
SMASHTEL DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICES OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES. SUBSCRIBER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES ARE AT SUBSCRIBER'S SOLE RISK AND DISCRETION AND SMASHTEL WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER OR SUBSCRIBER'S PROPERTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM SMASHTEL, IT'S EMPLOYEES, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO SUBSCRIBER.
SmashTel's PROPRIETARY RIGHTS
As between the parties, SmashTel shall retain all right, title and interest to the Services including all copyrights, trademarks, patents and all other intellectual property rights thereto, including without limitation with respect to all technology and telephone numbers used in connection with or provided as part of the Services. Subscriber may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. Subscriber may not allow any third party to access the Services for any purpose whatsoever. The copyright notices and other proprietary legends shall not be removed from the Services and no right to use any trademark is granted under this Agreement. Subscriber may not grant any sublicense, lease or other right in the Services to any third party. All rights not expressly granted under this Agreement are retained by SmashTel.
THE SMASHTEL SERVICE
Use of the forwarding service will permit to obtain telephone number(s) directly from SmashTel and cause any inbound call to such number(s) to forward to any other number that you control.
Subscriber agrees to provide true, accurate, current and complete data to SmashTel upon signing up for the Services and at subsequent times as requested by SmashTel
Subscriber is solely responsible for the maintaining the confidentiality of Subscriber's password and PIN, and will be responsible for all transactions and activities that occur as a result of Subscriber's disclosure of such password and/or PIN, whether or not such transactions and/or activities were authorized by Subscriber.
Subscriber shall not give account information to third parties and shall at all times be responsible and liable for any transactions or activities that occur on Subscriber's account.
To maintain or improve the Services, to prevent fraud, or for any other reason determined by SmashTel, its sole discretion, SmashTel may restrict, suspend, terminate or modify Subscriber's service with or without notice. Upon any termination in accordance with the foregoing, SmashTel may immediately deactivate or delete Subscriber's account and all related information and files in Subscriber's account, reassign any telephone numbers associated with the account, and/or bar any further access to such files, information, or the Services.
SmashTel shall not be liable to Subscriber or any third party for any reason for terminating this Agreement or access to Services or for modifying this Agreement and/or the Services.
LIMITATION OF LIABILITY
IN NO EVENT SHALL SMASHTEL BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY. SMASHTEL’s LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE LICENSE FEE PAID BY SUBSCRIBER FOR THE SERVICES, IF ANY.
The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
Subscriber shall indemnify and hold harmless SmashTel, its directors, officers, employees and agents from and against all liabilities, losses, costs, expenses (including reasonable attorneys' fees), and damages resulting from any negligent acts, omissions or willful misconduct by Subscriber, Subscriber's use of the Services and/or any breach of the terms and conditions of this Agreement by Subscriber.
SmashTel makes no representation that materials on its web site(s) are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Subscriber agrees to comply with all applicable foreign and domestic laws, rules and regulations regarding the transmission of technical data exported from or imported to the United States or the country in which Subscriber resides.
MODIFICATION TO SERVICES
During the term of this Agreement, SmashTel may modify or discontinue the Services at any time and with or without notice to Subscriber, subject to any applicable laws. Without limiting the generality of the foregoing, SmashTel may, from time to time, with or without notice and at its sole discretion, establish or change various practices, limitations and restrictions for administering such Services, including without limitation: (a) how often all or a part of the Services or account may be accessed; (b) the duration of any access; (c) the maximum number of days that messages or postings will be retained; (d) the maximum number of messages or postings allowed; (e) the size and nature messages and postings; (f) the maximum storage space available for an account; and (g) any other matter related to the administration of the Services. Subscriber agrees that SmashTel shall not be responsible or liable in any way for deactivation or deletion of accounts or for loss of emails, voice mails, communications, postings, data or information as a result of, or arising out of, administration of the Services, whether or not Subscriber is given prior notice thereof.
SmashTel may delete accounts that are inactive for an extended period of time as determined by SmashTel in its sole discretion. SmashTel may delete pending accounts that have not yet been validated by Subscriber after a period of time as determined by SmashTel in its sole discretion. SmashTel shall not be liable to the Subscriber or any third party for any reason for SmashTel modifying or terminating the Services, in whole or in part. Subscriber is responsible for creating a back-up copy of any important or critical information that is stored on the Services. SmashTel shall not be responsible or liable in any way for any information or data loss in connection with the Services.
MODIFICATION TO AGREEMENT
SmashTel reserves the right to change the terms and conditions of this Agreement, by posting a revised version of the Agreement at Terms of Service or its successor site.
Use of the Services signifies Subscriber's agreement to all terms, conditions and notices contained or referenced herein. Continued use of any part of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes, and all changes shall thereupon become binding upon the Subscriber. If Subscriber does not agree to the changes, Subscriber shall immediately cease all use of the Services.
You agree to pay SmashTel the then-applicable fees as set forth in any service plan in effect from time to time, if any (the "Fees"). Unless otherwise agreed in this Agreement, SmashTel may increase or add Fees upon thirty (30) days prior notice to You. All fees under these Terms of Service are irrevocable and nonrefundable.
If any Fees are payable, you agree to provide SmashTel with accurate billing information and with truthful, accurate and complete contact information, including Your legal name, street address, e-mail address and telephone number, and to update this information within thirty (30) days of any change to it. If the contact information You have provided is false or fraudulent, SmashTel reserves the right to terminate Your access to the Services immediately without any obligation to return Your Data.
For credit card payments, Your account will be considered delinquent if Your credit card company refuses for any reason to pay the amount billed to it.
Your access to the Services may be suspended if Your account is delinquent. SmashTel may impose a charge to restore Your Data from delinquent accounts. SmashTel’s suspension of the Services based on Your failure to make payment will not excuse You from Your obligation to make payment(s). Any account which is suspended for more than thirty (30) days will be terminated without any obligation on the part of SmashTel to maintain Your Data.
SmashTel will charge Subscriber the rates in effect under Subscriber's subscription plan, plus any enhanced service charges at the time of subscription, as such rates may be updated by SmashTel from time to time. Some charges (such as, but not limited to, surcharges) may accumulate in Subscriber's account before Subscriber is charged for such amounts, or such amounts may be charged to Subscriber as assessed. If Subscriber has enrolled in a then-current subscription plan and chooses to change the plan, and if there are one or more days remaining on Subscriber's current subscription, Subscriber will be credited for those days in the calculation of Subscriber's charges. Subscriber's billing cycle starts on the day the subscription purchase is successfully processed. If there is a change in subscription plan, there may be a resulting change in Subscriber's billing date.
Subscriber agrees that all payments will be made to SmashTel via credit or debit card, issued by a US bank, including MasterCard, VISA®, American Express®, or Discover®. SmashTel may change the credit cards accepted at any time, at its sole discretion. Subscriber's name and address as it appears on Subscriber's SmashTel account must also be on the credit account from which Payment is made. If Subscriber provides a credit card number that SmashTel accepts for payment of Subscriber's monthly bills, Subscriber is authorizing SmashTel to charge the amounts Subscriber owes, then or later, to that credit card account and to demand immediate payment from the card issuer. Subscriber also agrees to pay, under the terms of Subscriber's agreement with the card's issuer, the amounts charged to Subscriber's credit card. Every time Subscriber uses SmashTel Services, Subscriber re-affirms that SmashTel is authorized to charge Subscriber's card. Subscriber agrees to authorize SmashTel to charge purchases made online to the credit card account supplied to SmashTel when the subscription was initiated, or the card that SmashTel has on file when the purchase is made. Subscriber agrees to pay all costs and expenses, including without limitation attorney's fees, incurred by SmashTel to collect any monies due under terms of this Agreement.
RETURNS, REFUNDS & REPLACEMENTS
Due to the nature of SmashTel's Services, returns, refunds or replacements are not always possible. SmashTel's Call Management Service is a marketplace/search engine that aggregates phone numbers from various vendors and suppliers. Subscriber's selected phone number is secured on behalf of the Subscriber directly from SmashTel's vendors who retain their own return policies. Within 48 hours, purchase price can be refunded minus a 25% restocking fee. Phone numbers priced $100 or more are not eligible for a refund once order has been placed. Not all phone numbers are available to be transferred to any carrier. Subscriber will need to confirm with their preferred carrier first if they will accept the Subscriber's selected number(s) before purchasing.
RULES AND REGULATIONS
Subscriber shall be solely liable for any transmissions sent through the Services. SmashTel has no control over the content of any transmission nor will it be liable for such content.
SmashTel has the right to restrict termination to any telephone numbers in its sole discretion, to the extent permitted by law. These may include, but are not limited to certain geographic locations, special services numbers, satellite telephony services, and other call forwarding services. Subscriber shall not use the Services to create or distribute any images, sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent infringing or libelous, nor use the Services for any activity that may be considered or are unethical, immoral, violative of any third party's rights, or illegal. Further, Subscriber will abide by all rules, regulations, procedures and policies of SmashTel and any policies of the networks connected to the Services. Subscriber agrees to abide by all applicable local, state, national, foreign and international laws and regulations and is solely responsible for all acts or omissions that occur under Subscriber's account or password, including the content of Subscriber's transmissions through the Service. By way of example, and not as a limitation, Subscriber agrees not to: Use the Service in connection with chain letters, junk email, voice mail, faxes, spamming or any duplicative or unsolicited messages (commercial or otherwise); Harvest or otherwise collect information about others, including email addresses, without their consent; Create a false identity or forged email address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
Transmit through the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity; Transmit any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs; Violate any U.S. or foreign law regarding the transmission of technical data or software exported through the Service;
Interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks; Attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Service, through password mining or any other means; Interfere with another member's use and enjoyment of the Services or another entity's use and enjoyment of similar services.
COMMUNICATIONS WITH SMASHTEL
SmashTel's plans and other Services, including unlimited plans, are offered with the following restrictions:
May only be used for normal personal/business use.
Are provided only for dialog between two individuals at one time per line.
Exclude international calling.
Are issued on a "one (1) user per line basis", meaning that only one registered user may be assigned to use the Services for any one line.
All plans and other Services, including unlimited plans, also may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services):
SIP trunking or forwarding Your SmashTel number to (an)other phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
Spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail, SMS or faxes simultaneously).
Bulk call-in lines (e.g., customer support or sales call centers, "hotlines", 900 numbers, sports-line numbers, radio station call-in numbers, etc.).
Auto-dialing or "predictive" dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls).
Some of SmashTel’s plans and other Services offer "unlimited use", such as “unlimited minutes” or “unlimited SMS”. The term "unlimited use" means that there are no minute caps or overages for domestic calling on a single line (e.g. a single conversation at a time). These plans are intended to forward calls to a single individual, and are not designed for situations involving multiple simultaneous calls, such as forwarding to a call center, private branch exchange (PBX), hunt group, or key system. "Unlimited use" means one unlimited line, not unlimited minutes on unlimited lines. When an unlimited line is in use, a second call may come in and notify the callee of the new call ("call waiting"), but subsequent simultaneous calls will go directly to voicemail on SmashTel’s system.
Unlimited minutes are issued on a “single concurrent call basis”, meaning that in case of concurrent (simultaneous) calls only the first call will be unlimited and other concurrent calls will be assessed minutes.
Unlimited usage is monitored and reviewed at 2500 minutes for potential abuse or violation of these terms.
In addition, unusually high usage of the Services may impair SmashTel's ability to provide high quality Services to others and/or indicate unauthorized use of the Services, in which case SmashTel may suspend or terminate Your Account or, upon prior notice, convert Your Account to a metered calling plan that charges significantly higher usage rates.
PHONE NUMBER LICENSING
Usage: During the License Term (as hereinafter defined) of the license, SmashTel grants the licensee the right to use the telephone number (the “Number”). Under the Call Management Service, SmashTel will forward all calls to the licensed telephone number onto the designated destination telephone number as listed within the licensee's account control panel. The license is subject to any and all rules, obligations and conditions under applicable taxes (including, without limitation, tariffs in relation to the non-payment for service, abuse of service or fraud), statutory and common law and any other laws or regulations promulgated by agencies having jurisdiction over the subject matter hereof.
Duration: The license terms are effective on the date of telephone number activation (the "create date"). The license is month-to-month and can be cancelled at any time by the licensee, or terminated by SmashTel if licensee's account is delinquent due to non-payment (or in violation of terms of service).
Monthly fees: The licensee shall agree to pay: (i) a one-time activation fee if listed, (ii) the monthly license amount as displayed at the time of checkout and within the licensee's control panel, and (iii) the automated annual increase if so indicated at the time of purchase. Customer warrants, represents, acknowledges and agrees that Customer shall be solely responsible for and shall pay any and all Billed Charges incurred on and after the Effective Date including all applicable Federal, State, municipal and all other local taxes, surcharges and regulatory fees of any description billed by any such telecommunications carrier.
Reconnection: If the telephone number is deleted from licensee's account after two week's of non-payment, there is no guarantee of reconnection or continuance of license as the telephone number will be cancelled from licensee's account and reassigned to the original owner. It is the sole responsibility of the licensee to maintain its account in good standing.
PLAN CREDITS, TAXES, CHARGES, FEES AND CHARGEBACKS
Unlimited Plan. SmashTel offers unlimited monthly plans for some of its products and Services. An unlimited plan provides You with a local or toll-free telephone number and is subject to the terms and restrictions of the Use Policy set forth above and other restrictions described in this Agreement. If, for any reason, SmashTel believes that You are using the unlimited plan for a prohibited purpose and/or Your call usage violates the Use Policy, then SmashTel may, in its sole discretion with or without notice, either terminate Your unlimited plan or immediately convert Your unlimited plan to a metered plan, as set forth above.
SmashTel does not warehouse, or hoard telephone numbers, as defined by the FCC.
Our search results include phone numbers that are aggregated from dozens of sources and then distilled using our proprietary search algorithm. In general, SmashTel does not own, nor hold any title to, listed telephone numbers until a bonafide subscriber establishes service through our website. Activation (setup) fees are not to be construed as the "purchase price" of a phone number; these fees cover the development and operational costs of our search engine service, as well as costs associated with service establishment through our underlying carriers/vendors.
Although it is rare, there is a chance that inventory reported herein may not be available due to database timing or other factors. Because availability is not guaranteed, you should make no assumptions about numbers that you order until we have notified you that your order is complete, and until you have placed a test call to verify operation of your new numbers. Our liability for unavailable numbers is limited to the cost paid for the number, and we are not responsible for any consequential damages such as printing or marketing costs.
CHARGES AND PAYMENT
When supply is sufficient, SmashTel will make available to Subscriber a list of DID/ telephone numbers from which Subscriber may choose their DID/ telephone numbers. Subscriber will not be the owner of any DID/ telephone number (including fax numbers) assigned to Subscriber by SmashTel, and Subscriber will not transfer or attempt to transfer its number(s) to anyone else (except as provided in Section 9.2 below with respect to Porting Out). SmashTel reserves the right to change, cancel, withdraw, or move such numbers at its sole discretion immediately upon notice.
LOCAL NUMBER PORTABILITY
Subscriber or a third-party provider acting as agent on behalf of Subscriber (“Requesting Party”) may request that SmashTel port a number assigned to Subscriber by SmashTel to a third-party provider (“Port-Out”). SmashTel will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and SmashTel’s standard operating procedures. In the event of any Port-Out, Subscriber agrees that until such time as the Port-Out is complete and Subscriber terminates the Service for such DID/ telephone number, Subscriber shall remain bound by the terms of the Terms of Service and this Addendum related to that DID/ telephone number. Once the Port-Out is complete, Subscriber must terminate the Services associated with such ported DID/ telephone number in order to stop incurring charges for such DID/ telephone number. Subscriber recognizes and agrees that in the event of a Port-Out Subscriber shall remain responsible for paying the required monthly service fees, along with taxes, governmental fees and other charges required, incurred up to the date of termination of the service.