Section 1: Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. EMERGENCY SERVICES – 911 DIALING
1.1 911 Dialing. Freshphone’s VoIP trunk providers use the same national 911 network that all traditional telephone companies use. Be aware that 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning. Disconnection of your account will prevent all Service, including 911 Dialing, from functioning. Your ISP, broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. If you suspect this has happened to you, you should alert us to this situation and we will work with you to attempt to resolve the issue. During the period that the ports are being blocked or your Service is impeded, your Service, including 911 Dialing, may not function. You acknowledge that Freshphone is not responsible for the blocking of ports by any third party or any other impediment to your usage of the Service, and any loss of Service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
You authorize us to disclose your name and address to third parties involved with providing 911 Dialing to you, including, by way of illustration but not limitation, call routers, call centers and local emergency centers.
1.2 Registration of Physical Location Required. For each device that you utilize with Freshphone service, you must register the physical location where you will be using the Service with us. Your initial location will be registered as a part of subscribing to the Service. It is incumbent on you to confirm the accuracy of your physical address through your online account and update it if you have any changes, additions or transfers of phone numbers. When you move the Device to another location, you must update your location. If you do not update your location, 911 calls you make may be sent to an emergency center near your old address. You may update a location by notifying Freshphone and we will update your online account. For purposes of 911 Dialing, you may only register one location at a time for each phone line. It is understood that all phone extensions attached to that phone line will remain in one geographic location associated with the address.
1.3 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should make arrangements for an alternate means of accessing traditional 911 or E911 services or disconnecting the Service. You understand that additional arrangements should be made to access emergency services. To access emergency services, you acknowledge and accept that it is your sole responsibility to purchase, with a third-party separately from Freshphone, traditional wireless or wireline telephone service that offers access to emergency services. You further recognize that Freshphone is not a replacement for your primary telephone service and you are hereby advised to maintain a traditional wireline or wire-based telephone service at all times. By agreeing to these terms of service and by your use of the Device, you acknowledge and accept that the Device may not support or provide emergency service at all times. You represent and warrant to Freshphone that you already have made additional arrangements with a third party to access emergency services.
1.4 Network Congestion. Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
1.5 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We expressly disclaim any and all responsibility for the conduct of such local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Freshphone nor any of its officers, directors, members or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arise from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Freshphone, its officers, directors, members, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
1.6 Notify All Users. You should inform all household residents, guests and other third persons that may be present at the physical location where you utilize the Service of the important differences in and limitations of 911 Dialing as compared with basic 911 or E911. If VoIP/SIP devices are purchased from Freshphone, the documentation that accompanies each device will include information and/or a sticker concerning the potential non-availability of basic 911 or E911 (the “911 Sticker”). It is your responsibility, in accordance with the instructions that accompany each device, to place a notice or the 911 Sticker on each device that you use with the Service. If you did not receive a 911 Sticker with your device, or you require additional 911 Stickers, please contact Freshphone.
2. Service. Freshphone will provide you with digital phone service, subject to the terms and conditions set forth herein (the “Service”). We recommend waiting until the Service is installed and tested for a few weeks before assuming that the Service will be available and of good quality. You acknowledge that you have control of every number that you request Freshphone to port. Furthermore, by subscribing to service with Freshphone, you give Freshphone the permission and authority to manage each DID number for your benefit in your place for the duration of service.
3. Subscriber Information. You acknowledge that you are eighteen (18) years of age or older, and you agree that you have the legal authority to enter into this Agreement and affirm that the information you supply to us is correct and complete. You understand that Freshphone relies on the information you supply and that providing false or incorrect information may result in Service delays or the suspension or termination of your Service. You agree to promptly notify Freshphone whenever your personal or billing information changes, including without limitation, your name, address, telephone number, and credit card number and expiration date, if applicable.
4. General Pricing and Fees. Freshphone’s prices are listed on https://freshphone.com/pricing. You will be charged each month based on the current pricing for your plan and options, plus all applicable taxes and fees. Service is billed using a month-to-month or annual subscription model. You are not required to sign a long-term contract. If Freshphone revises the pricing for your Service, according to Section 14 of this agreement, you will receive a revised invoice at the next renewal of your term. If you are a Monthly Subscriber, the update will occur the month following when the revisions are posted on Freshphone’s website. If you are an Annual Subscriber, the update will occur upon the automatic renewal of your Annual Term. If you have a different contract term, the update will occur after that term is complete.
4.1 Taxes and Fees on Free Services. Any plan that comes with free service will be assessed applicable taxes, surcharges, and fees periodically, based on the details of the plan selected. These fees will be calculated based on the standard price for the service. You are responsible to pay applicable taxes and fees necessary for your service as required by law. Services are subject to suspension and termination if balances are not paid in a timely manner.
5. Payment, Late Fees and Other Charges. There is no money back guarantee for any services unless specifically granted in writing. There are no prorated refunds for unused time or service. Unless other payment arrangements are made, all services will be charged via automatic credit card withdrawal. By signing this agreement, you consent to have your supplied payment method charged automatically at the beginning of your billing cycle. For any hardware purchases and one-off charges, Freshphone may add the amount owed to the subscriber’s monthly invoice at the beginning of the next billing cycle or automatically charge the card on file. Subscribers are responsible for paying monthly subscription fees while services are suspended due to non-payment. In the event that an account is terminated for any reason with an outstanding balance, Freshphone will continue to electronically charge the credit card on file for the outstanding balance until all balances are fully resolved. All disconnected accounts and all accounts suspended for non-payment are subject to a fifteen-dollar ($15.00) reconnection fee. Any requests for a change in telephone number are subject to a fifteen-dollar ($15.00) change fee. Subscribers are responsible for any disputed charges beyond sixty (60) days from the date of the charge. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges. Subscribers must pay a twenty-five dollar ($25.00) service charge on disputed credit cards and credit card chargebacks. Past due accounts will accrue a monthly charge of five percent (5%) of the past due balance. You are responsible for all charges attributable to your account incurred with respect to the Services. You agree to notify Freshphone immediately, in writing or by calling the Freshphone customer care line at the number posted on https://freshphone.com/contact, if you become aware at any time that Services are being stolen or fraudulently used. You are responsible for all usage charges attributable to your account, even if incurred as the result of fraudulent or unauthorized use by third parties, until you report the theft or fraudulent use of the Services. You are solely responsible for securing all passwords and access numbers to guard against and prevent unauthorized access to Services by third parties. Freshphone may, but is not obligated to, detect or report unauthorized use or fraudulent use of Services. You agree to save, defend, indemnify and hold Freshphone harmless from all claims, costs, liabilities and damages arising out of such fraudulent use.
5.1 Long Distance. Freshphone includes all local and long distance minutes within the continental US as part of your Service. Actual long distance minutes may be measured but not charged so long as the client remains below their specific plan’s usage thresholds.
5.2 Normal Reasonable Use (Fair Use Policy). Any of Freshphone’s Products that offer unlimited minutes of PSTN calls (“Unlimited Plans”) are for reasonable business use of Customer only. Activities such as auto-dialing, continuous or extensive call forwarding, use of virtual extensions for regular business use, continuous connectivity, fax broadcast, fax blasting, unlawful or unauthorized telemarketing, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process are not Reasonable Business Use as intended for the Product. The Monthly Reasonable Minute Usage for voice minutes is 5000 minutes plus 500 additional minutes per extension. If the Customer’s total monthly minute usage exceeds the Monthly Reasonable Minute Usage, the Customer has exceeded the Reasonable Business Use as intended for the Product. If Freshphone determines that Customer use of the Product is not within the scope of Normal Reasonable Use, Freshphone reserves the right to invoice Customer for additional usage (including the right to charge Customer’s Credit Card) at the current per-minute rate and/or to terminate or modify the terms of Customer’s Product. The current per-minute price is $0.01 per minute of inbound or outbound calling and will be charged in increments of one dollar ($1.00). As it relates to data traffic through the phone server, the Customer shall be allotted one gigabyte per extension per month. The Customer will be billed for any data usage exceeding their allotment. The rate of data usage is variable depending on costs incurred on a case-by-case basis.
5.3 International Calling. International calling is disabled by default. Customers may request to enable or disable it at anytime by notifying Freshphone. All International calls are billed at their respective international rates. Any and all call charges are rounded to the nearest whole penny. Each customer account is given a credit limit for international calls. If an international calling balance exceeds the credit limit prior to their next bill date, the account will be charged the balance immediately. Failure to pay will result in suspension of service.
5.4 Directory Assistance and Operator Services. Directory Assistance is charged at $0.99 per call and $0.10 per minute after two minutes. Directory Assistance is disabled by default on all new phone lines. Operator calls are billed at $3.00 per call. Operator calling is disabled by default on all new phone lines.
5.5 Call Forwarding. Certain features such as call forwarding may incur outgoing minutes automatically when they are enabled. All forwarded calls count against standard minute usage caps. Before activating these features, consider this usage and whether it will affect your usage thresholds.
5.6 Toll-Free and Fax Numbers. Toll Free numbers can be attached to any Freshphone service plan. Toll-Free numbers cost $5 per month plus $0.025 per minute for inbound calls, billed in one (1) minute increments, with the additional billing increment of six (6) seconds. Fax numbers cost the equivalent of one additional extension per month. Fax minute overages exceeding the included 200 minute maximum are charged at the rate of $0.05 per minute.
5.7 Billing Increments. Any and all call charges are rounded to the nearest whole penny. Current billing increments for available new plans are as follows:
||Initial Billing Increment (seconds)
||Additional Billing Increment (seconds)
||Rate per Minute
|Calling a Toll-Free Number
|International (If Available)
|Fax (After 200 minutes per month maximum)
5.8 Click2Call. Click2Call calls are always two physical calls, one to the source number and one to the destination number. Both of these calls are evaluated for billing and accounting purposes.
5.9 Answer to Seizure Ratio (ASR). For each billing cycle, if a Subscriber’s outbound call attempts (including calls with a duration less than 60 seconds) exceed their completed calls by a factor of three (3) or more, Freshphone reserves the right to charge an additional $.003 per call attempt for each call attempted, completed or not, during that billing period. This ratio is calculated based on the ASR over the entire billing period.
6. Equipment. Freshphone does not necessarily offer the option to purchase or lease any phone or telecommunication equipment apart from the approved Freshphone equipment. Any request to integrate third party equipment with your Freshphone system is subject to approval by an authorized Freshphone representative.
6.1 Subscriber Supplied Equipment. If a Subscriber supplies their own equipment, subject to Freshphone approval, the Subscriber assumes all risks, including but not limited to incompatibility and maintenance. Incompatible Subscriber equipment shall not relieve Subscribers from any of their obligations under this Agreement while troubleshooting defective or incompatible equipment even if Subscriber’s Service is interrupted during such periods of troubleshooting. Freshphone reserves the right to update, maintain, and/or alter the software on Subscriber’s equipment in order to facilitate compatibility with Freshphone’s service. Any device used with Freshphone’s service must not be locked or currently provisioned to any other provider. Access to said devices must be made available to Freshphone upon request for the purpose of service and support.
7. Term. This Agreement is effective upon Subscriber’s acceptance as provided above and shall continue until terminated by Subscriber or Freshphone pursuant to this Agreement. Subscriber may elect Monthly or Annual terms when signing up for service. Subscriber may request to change the term by contacting Freshphone.
7.1 Monthly Subscribers. For Subscribers who elect to use the month-to-month contract term, this agreement shall automatically renew each month on the monthly anniversary of their service commencement.
7.2 Annual Subscribers. For Subscribers who elect to use the annual contract term, this agreement shall automatically renew each year on the annual anniversary of their service commencement.
8. Termination By Subscriber. Subscribers may terminate their service at any time for any reason by providing Freshphone with a thirty (30) day written notice in the form of a valid written termination request and paying all fees and other charges accrued or otherwise payable under the terms of this Agreement. The thirty (30) day period begins on the date on which Freshphone receives Subscriber’s valid written termination request. A Monthly Subscriber’s termination will be effective on the later of (a) the end of last day of the calendar month during which the thirty (30) day period ends (e.g., a valid written termination request received by Freshphone any time during January will result in termination effective at the end of February), or (b) the end of last day of the calendar month requested by the Monthly Subscriber. Subscriber must pay within thirty (30) days of termination all amounts that have accrued on the account, and all sums remaining unpaid for the Service for the full remainder of the then-current term. If Freshphone receives a written termination request from a Subscriber, Freshphone may, in its sole discretion, terminate this Agreement on a date earlier than the date otherwise prescribed by this agreement. For such waiver to apply, the reason for the waiver must have occurred before termination, and the Subscriber must report the reason for termination to Freshphone in the Subscriber’s valid written termination request. Freshphone must in turn be given the opportunity to resolve the problem, and the Subscriber must be willing and able to troubleshoot with Freshphone. Freshphone does not necessarily monitor Subscriber accounts for activity, and absence of activity or cancellation of a Subscriber’s Internet service will never constitute a termination request. A written termination request is valid only if it includes your VOIP phone number, authorized user’s name, date you wish the service to be cancelled, and is submitted using one of the following approved methods:
Via email to: email@example.com
Via mail to:
Attn: Cancellation Department
517 Baldwin Street
Jenison, MI 49428
8.1 Return of Donated hardware. If the Subscriber has Freshphone donated hardware, then any donated hardware must be returned to Freshphone within 30 days of cancellation unless other arrangements are made between Freshphone and the Subscriber. Any hardware not returned within 30 days will be billed to the Subscriber at current retail price.
9. Termination By Freshphone. If, in Freshphone’s sole and absolute discretion, (a) a Subscriber is in breach of any of the terms of this Agreement (including but not limited to the Acceptable Use Policy); (b) a Subscriber’s use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Freshphone’s servers or other equipment, or the use and enjoyment of other users; (c) a Subscriber acts in an abusive or menacing manner when dealing with Freshphone’s technical support staff, customer service staff or any other Freshphone employees or representatives; (d) Freshphone receives an order from a court of competent jurisdiction to terminate a Subscriber’s Service; or (e) Freshphone for any reason ceases to offer the Service, then Freshphone at its sole election may terminate or suspend such Subscriber’s Service immediately without notice. For a termination in accordance with this paragraph, Subscriber remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the equipment charges set forth herein, if applicable.
10. Terminated Subscriber. Freshphone, in its sole and absolute discretion may refuse to accept a Subscriber’s application for renewal or re-subscription following a termination or suspension of such Subscriber’s use of the Service. If a Subscriber’s Service is terminated for any reason, such Subscriber, upon approval by Freshphone, may enter into a new Agreement and must pay a new setup or activation fee as provided above. Upon the termination of a Subscriber’s use of the Service, Freshphone has the right to immediately delete all data, files and other information stored in or for the Subscriber’s account without further notice to the Subscriber.
11. Technical Support. Freshphone assumes that all Subscribers possess a basic understanding of their computers and their limitations. Freshphone will not train you in basic computer skills. Technical support is intended to facilitate the setup of your properly functioning internal computer network for access to our services. If you are having problems connecting to the Internet, you will need to contact your Internet Service Provider (ISP) or Information Technology (IT) provider for assistance getting connected first. Our technical support staff has no obligation to, and will not assist you in installing and/or troubleshooting modems, network cards, routers, network configurations or telephone lines, neither will they provide any technical assistance or support for third party software unrelated to service. The scope of support is limited to any SIP device which needs to connect to your VOIP service. It is the Subscriber’s responsibility to initiate and be available for technical support during Freshphone’s hours of operation. If a Subscriber wishes to utilize Freshphone’s technical support, the Subscriber must be available at the same location as the hardware to help troubleshoot the connection or computer setup. Freshphone assumes no obligation to provide support services for any third party products or services, including but not limited to the quality of the connection provided by the Internet Service Provider (ISP) and/or problems with our service caused by third party products or services. It is the responsibility of the subscriber to troubleshoot any issues with third party products or services with the provider of that service.
11.1 Incompatibility With Other Services
(a) Non-Voice Equipment Limitations. You acknowledge that our service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, medical monitoring equipment, TIVO, satellite television systems, PBX, Centrex, other private telephone networks, and dial-up modems. You waive any claim against Freshphone for interference with or disruption of these services and equipment, as well as any claim that Freshphone is responsible for any disruption to your business, if applicable.
(b) Hardware Compatibility Issues. There may be other Internet services or hardware with which our service may be incompatible, including but not limited to: Fixed Wireless, Satellite, and Power over Ethernet connections. Some providers of broadband service may provide modems that prevent the transmission of communications using our service. We do not warrant that our services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our service with any particular broadband service.
12. WARRANTIES AND LIMITATIONS OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT AND SOFTWARE SUPPLIED HEREUNDER ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY FRESHPHONE (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). FRESHPHONE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, AND PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON- INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY FRESHPHONE OR ITS REPRESENTATIVES SHALL CONSTITUTE A WARRANTY. USE OF FRESHPHONE TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
FRESHPHONE DOES NOT WARRANT OR GUARANTEE THAT VOIP SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF FRESHPHONE HAS ACCEPTED YOUR ORDER FOR VOIP SERVICE. THE PROVISIONING OF VOIP SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR FRESHPHONE SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
FRESHPHONE DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY FRESHPHONE WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED OR ERROR-FREE. FRESHPHONE SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. FRESHPHONE MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT, AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL FRESHPHONE (OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS, OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF FRESHPHONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY. ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 12 ALSO APPLY TO FRESHPHONE’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH FRESHPHONE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), FRESHPHONE’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. FRESHPHONE RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.) WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS FRESHPHONE (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEMENT OR SUBJECTING FRESHPHONE (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIONAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF FRESHPHONE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
13. Indemnification. You agree to defend, indemnify and hold harmless Freshphone and its officers, directors, members and employees from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, the Software, the Equipment or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment or the Internet.
14. Revisions. Freshphone may revise the terms and conditions of this Agreement at any time (including any of the policies which may be applicable to usage of the Service) without notice. Changes will be posted to our website at https://freshphone.com/terms. You agree to periodically visit this page and the links therein to be aware of and review any such revisions. Increases to the monthly price of the Service for Monthly Subscribers shall be effective beginning with the calendar month following the calendar month in which such increases are posted. Revisions to any other terms and conditions shall be effective upon posting. By continuing to use the Service after revisions are in effect, a Subscriber accepts and agrees to the revisions and to abide by them. Any Subscriber who does not agree to the revision(s) must request termination of their Service.
15. Assignment. You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. Freshphone may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
16. DISPUTE RESOLUTION WITH FRESHPHONE BY BINDING ARBITRATION. PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting Freshphone Customer Care at the number posted on https://freshphone.com/contact. In the event that Freshphone is unable to resolve a complaint you may have to your satisfaction, both parties agree to resolve such disputes through binding arbitration, for claims of $5,000 and greater, or small claims court, in the event the claim is less than $5,000, instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $6,000, Freshphone agrees to pay all costs of the arbitration, but in no event shall Freshphone be responsible for costs incurred in bringing an action in small claims court, unless directed otherwise by the court. In arbitration you are entitled to recover attorneys’ fees from Freshphone to at least the same extent as you would be in court. Further, under certain circumstances (as explained below), Freshphone will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what Freshphone has offered you to settle the dispute.
16.1 Arbitration Agreement.
(a) Freshphone and you agree to arbitrate all disputes and claims between you and Freshphone of $5,000 and greater. All claims less than $5,000 shall be addressed in small claims court. 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 relationship between us, 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. References to “Freshphone”, “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND FRESHPHONE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(b) A party who intends to seek arbitration must first send to the other a written notice of the dispute by certified mail (“Notice”). The Notice to Freshphone should be addressed to: Freshphone 517 Baldwin Street, Jenison, MI 49428 (“Notice Address”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). If Freshphone and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Freshphone may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Freshphone or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Freshphone is entitled.
(c) After Freshphone receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $6,000. The arbitration will be governed by the Commercial Arbitration Procedures 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 http://adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Freshphone and you agree otherwise, any arbitration hearings will take place in the county of Freshphone’s Notice Address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. 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. Except as otherwise provided for herein, Freshphone will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, 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 all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Freshphone for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
(d) If, after a finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of Freshphone’s last written settlement offer made before an arbitrator was selected, then Freshphone will: pay you the amount of the award; and pay your attorney, if any, the amount of attorney’s fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”). If Freshphone did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
(e) The right to attorney’s fees and expenses discussed in paragraph (d) supplements any right to attorney’s fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs. Although under some laws Freshphone may have a right to an award of attorney’s fees and expenses if it prevails in an arbitration, Freshphone agrees that it will not seek such an award.
(f) The arbitrator may award declaratory or injunctive relief only 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 FRESHPHONE AGREE THAT EACH 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 Freshphone 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(g) Notwithstanding any provision in this Agreement to the contrary, you agree that if Freshphone makes any future change to this arbitration provision (other than a change to the Notice Address) during the period of time that you are receiving Services, you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
17. Choice of Law. You and Freshphone agree that the substantive laws of the state of your billing address except to the extent such law is preempted for inconsistent with Federal law, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. In the event of a dispute between us, the law of the state of your billing address at the time the dispute is commenced, whether in litigation or arbitration, shall govern except to the extent that such law is preempted by or inconsistent with applicable Federal law. To the fullest extent permitted by law, you and Freshphone 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 this Agreement must be filed within one hundred eighty (180) days after such claim or cause of action arose or be forever barred.
18. Compliance. Freshphone’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties. 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.
19. Things Beyond Freshphone’s Control. Freshphone will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
20. Entire Agreement. This Agreement, including all policies posted on Freshphone’s website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and Freshphone with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
21. Notice. Notices by Freshphone to you shall be deemed given: (a) when sent to your primary contact email address, (b) when deposited in the United States mail addressed to you at the address you have specified in your account options or (c) when hand delivered to your service address, as applicable.
22. Acceptable Use. Subscriber agrees to use the VOIP Service in accordance with Freshphone’s acceptable use policy (“Acceptable Use Policy”), published at https://freshphone.com/policies/acceptable-use. Freshphone reserves the right to make changes to the Acceptable Use Policy without notice.
24. Survival. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.
25. Phone Number Changes. Phone number changes may incur a one-time fifteen-dollar ($15) processing fee.
26. Transferring Numbers. Freshphone gives customers the option of transferring telephone numbers to or from our service. If transferring a number away from Freshphone, it is the customer’s responsibility to cancel their service after the number has successfully transferred. Disconnected telephone numbers are not eligible for transfer to or from our service. Canceling an order to transfer a telephone number to Freshphone will require a $100 expedite fee to cancel.
27. Return Policy. You must request a Return Authorization before returning any hardware. You are responsible for all costs associated with returns of non-defective equipment. These costs include, but are not limited to, shipping, handling, and restocking fees. Returns may be contingent upon Freshphone’s suppliers and their return policies. Return of equipment defective out of the box will not incur any fee. Return of equipment that breaks during use is subject to warranty and Freshphone approval.
28. Caller ID Service. Freshphone sends current Caller ID information with every call placed. For residential customers, Caller ID information is “Last Name, First Name”, with a maximum of 15 characters. For business customers, Caller ID information is the business name, with a maximum of 15 characters. Caller ID information is not customizable. Freshphone has no control over the information that any terminating telephone company chooses to display. All telephone carriers update their Caller ID information periodically, but many companies do not update as often as Freshphone sends updated data. If a disparity is found between the information that Freshphone is sending and the information that a terminating telephone company is displaying, it is the Subscriber’s responsibility to contact the terminating telephone company and request that they display the correct data. Freshphone is not responsible for errors involving spelling, punctuation, or capitalization of Caller ID information.
29. Expedite Fee. Any modifications made to an order prior to the port date will incur an expedite fee of either $100.00 or an amount stated by Freshphone and approved by Subscriber.
30. Electronic Communications. Initiation of service and/or email correspondence constitutes consent for the Subscriber to receive electronic communications from Freshphone. It is the responsibility of the subscriber to maintain and update a valid email address with Freshphone at all times. Freshphone will not be held responsible for interruptions in service or cancellation of service for non-payment due to an email not being received by the subscriber or filtered out by the email provider being utilized by the subscriber. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Freshphone sends regular account notifications, balance notifications, and subscription renewal emails, these emails cannot be opted out of. Periodic newsletters and feature update announcements can be opted out of by the subscriber by clicking a link at the bottom of all optional email correspondence or contacting Customer Care.
31. Voicemail Recovery Attempt. If a customer wishes to have voicemails that have been deleted from their account recovered for any reason, a thirty-five dollar ($35) processing fee will be incurred. This is a single charge regardless of the number of messages recovered. Recovery of any or all voicemails is not guaranteed. If no voicemails are eligible for recovery the fee will not be incurred. Partial recoveries will still incur the fee.
Section 2: Acceptable Use Policy
Use of the Services is subject to the Acceptable Use Policy which is available at https://freshphone.com/policies/acceptable-use or such other URL as may be provided by Freshphone. Use of the Services is also governed by the policies posted on the Policies web page which is available at https://freshphone.com/policies.
Section 4: Security, Elevator, and Fire Alarm Information
Use of the Services is subject to the Security, Elevator, and Fire Alarm Information Policy which is available at https://freshphone.com/policies/security-elevator-and-fire-alarm-information or such other URL as may be provided by Freshphone.
By using the Services provided by Freshphone you in good faith execute this agreement and confirm that you understand all of the concerns listed above regarding voice over IP digital phone service as a means of security or fire alarm signal transmission. You confirm that you understand the benefits of using cellular backup service as a backup means of communication and that using voice over IP digital phone service as a method of transmission does not guarantee successful alarm signal transmission and that there are factors involved that are outside of the control of myself and Freshphone that could affect the transmission of my alarm signals. You will not hold Freshphone or any of its agents or employees responsible for the failure of communication from the fire or security alarm while utilizing Freshphone’s service. You will perform all of the above listed steps in order to minimize the downtime or inability to transmit alarm signals over the digital phone system. You understand that there may be additional fees involved due to the additional connection and testing that is necessary for alarm connection to the VoIP System.
Last Updated September 25, 2019.