Terms of Service

Effective Date: June 1, 2009

These Terms and Conditions constitute an agreement ("Agreement") between you ("you", "your", "user" or "Customer") and FonGenie, Inc. ("FonGenie", "us", "we" or "our") for virtual telecommunication services and any related products or services ("Services"). This Agreement governs both the Services and any assigned toll-free and/or local number account ("Account") used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization or registration of the Services, either on the telephone or through the FonGenie website (www.FonGenie.com) or through any of the FonGeniesubdomains (e.g. blog.FonGenie.com) (the FonGenie website and subdomains are collectively referred to herein as, the "Site"); or (ii) through the use of your Account and PASSWORD (defined below); or (iii) your use of the Site.

Ownership

All Materials (defined below), Services, Accounts and content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the Site or through the Services ("Content"), are provided by FonGenie unless indicated otherwise. All intellectual property rights in the Materials, Content, Services and Accounts (including copyrights, trademarks, service marks, trade secrets and patents) are the property of FonGenie. FonGenie retains all copyrights in the individual pages, and their components, and collective works available at the Site.
The Materials, Content, Services and Accounts are copyrighted and are protected by federal and worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way without FonGenie's prior written permission.
Trademarks and copyrights including FonGenie, the "FonGenie" characters and elements and the FonGenie logo are the property of FonGenie. All other names and trademarks are the property of their respective holders.

Single Copy License

You may download one copy of the materials (the "Materials") and/or Content found on this Site for use with the Services and/or Accounts. This is a license, not a transfer of title, and is subject to the following restrictions: unless you receive prior written consent from us and unless you receive any required regulatory approvals, you may not: (a) modify the Materials, Content, Services or Accounts or use them for any commercial purpose or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts; (d) unless otherwise provided herein, transfer or resell the Materials, Content, Services or your Account to another person. You agree to prevent any unauthorized copying of the Materials, Content, Services and Accounts.

Term

The term of this Agreement begins on the date we activate Service for you or your FonGenieNumber. If you select a service plan, which requires a fixed term of more than one month (such as a one-year plan), you agree to purchase service on that plan for the full term. After the term expires, this Agreement will continue from month to month until terminated by either party upon 30 days notice.

Order Acceptance Policy

Your submission of your order on the Site or receipt of an email confirmation signifies acceptance by FonGenie of your order and the provision of your Account. FonGenie may verify orders to prevent fraud. Should FonGenie suspect the placement of a fraudulent order (even after you have received an email confirmation of acceptance of your order and the provision of your Account), FonGenie may contact you by email or telephone regarding such suspected fraudulent order and, in sole discretion, interrupt, restrict or terminate your Account without notice to you by FonGenie.

Use of Services and Account

You represent and warrant that you are at least 18 years of age or the applicable state age of majority and that you possess the legal right and ability to enter into this Agreement. You agree not to use the Materials, Content, Services and your Account for any unlawful or abusive purpose or in any way, which interferes with our ability to provide Services to our customers, or damages our property.
Certain pages on the Site or the access to the Services and/or your Account may be accessed only by use of a Password ("PASSWORD"). You are solely responsible for all uses of the Site and/or the Services and/or your Account with your PASSWORD. You should change your (PASSWORD) once each month. If your Services or Accounts are fraudulently used, you agree to immediately notify us of such unauthorized use. We have the right to interrupt, restrict or terminate Services to your Account, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe.

Charges

You are responsible for paying all charges to your Account for Services, including but not limited to, long distance and directory assistance charges, regulatory and government fees, and for all taxes and surcharges, including regulatory recovery fees, imposed on you or us as a result of your use of the Services.
Each service plan, for both toll-free and local numbers, has (i) a flat monthly service fee (this service fee, which is posted on the Site, is the basic charge associated with your Service. This fee includes the calling charges defined by your Service plan within the continental United States (excluding Alaska, Hawaii and United States territories such as Puerto Rico) and Canada); (ii) a certain number of "free" minutes to be used in the continental United States (excluding Alaska and Hawaii and United States territories such as Puerto Rico) and Canada as posted on the Site, and (iii) an additional minute rate (if you exceed the number of calling minutes and number of calls on your Service plan, FonGenie will bill you for the minutes and calls you use above your allowance) as posted on the Site.
FonGenie may charge initiation fees and additional fees for optional features, add-ons, and other added products and Services. Such fees are posted on the Site. FonGenie reserves the right to change its pricing and/or billing practices in its sole discretion. FonGenie may introduce new products and Services at special introductory pricing. Introductory pricing may change at discretion by FonGenie. FonGenie bills usage charges in sixty (60) second increments with an sixty (60) second minimum, or as otherwise stated by your Service plan.
Service plans are charged once a month or upon the usage of an additional 1000 minutes, whichever comes first.
Customers with past due balance on previous or multiple accounts will be charged the full balance due upon opening a new account or updating their credit or debit card on file.

Billing and Payment

Any applicable initiation fees and monthly recurring charges are billed in advance of the month of usage. You will also be billed for additional minutes you used (which exceeded the number of calling minutes in your plan); either on the month following such usage or upon the usage of an additional 1000 minutes, whichever comes first. Usage charges are billed in arrears. Unless otherwise agreed to in writing, you are to pay for all charges by credit or debit card. Credit or debit cards will automatically be billed monthly or upon the usage of an additional 1000 minutes, whichever comes first, and no additional notice or consent will be required for billings to that credit or debit card or account. You will advise us of any changes to your credit or debit card account, such as account number, billing address, or expiration date changes. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and pro-rations. Time is of the essence for payment. Therefore, you agree to pay us interest at the lesser of (a) 18% per annum or (b) the highest amount allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked "Paid in Full") shall not waive any of our rights to collect the full amount due under this Agreement. Notice of any disputes must be in writing and received by us at our address within thirty (30) days after the invoice date or you will waive any objection.

Default/Termination

After the initial 30-day money back guarantee period, you may terminate this Agreement at any time with thirty (30) days notice in accordance with the immediately following procedure. You must give such notice of termination by "Submitting a Ticket" to our Billing Department. You can "Submit a Ticket" on the Support Center page of the Site at http://support.FonGenie.com. Upon receipt of your Ticket, indicating your desire to terminate this Agreement, we will generate a Cancellation Ticket to cancel your Account. We will send to you, by e-mail, a Cancellation Ticket Number to confirm that your termination notice was received. If you do not receive a Cancellation Ticket Number, your termination notice may not have been received by us. You may contact our Customer Support Department at 1-877-755-3377 or 1-650-200-4400 to verify the generation of a Cancellation Ticket Number. Your termination request will be fulfilled within 1 (one) business day. Because minutes are paid in arrears, a final payment for minute usage will be processed on your next billing date after termination.
We may terminate this Agreement at any time without notice as provided in this agreement herein. Notwithstanding our "30 Day Money-back Guarantee" as posted on the Site, upon termination, and at our sole discretion, the fees for our services (e.g. the initial sign up charges) may be refunded to you. Any additional charges incurred after the initial signup will not be included in this refund.
If you fail to pay any amount owed to us within 5 days after the due date, or if you have in the past failed to pay amounts due us or an affiliate of ours, or if you breach any representation to us or fail to perform any of the promises you have made in this Agreement, or if you are subject to any proceeding under the Bankruptcy Act or similar laws, you will be in default and we may, in our sole discretion and with or without prior notice, restrict or terminate Services and/or terminate this Agreement, in addition to all other remedies available to us.
Upon termination of this Agreement and/or your Services, your right to use the Services immediately ceases. You shall have no right and we will have no obligation thereafter to forward any unread or unsent messages to you or any third party. We may require reactivation charges to renew Services after termination or suspension.
Upon termination, you are responsible for paying all amounts and charges owing under this Agreement.
Should your credit or debit card decline for any reason, we will attempt to charge it again in 5 (five) days. If the third attempt to bill your credit or debit card is unsuccessful on the 10th (tenth) day, your account will be terminated and we will notify you of such termination by email, by message sent to your voicemail box, or by telephone.
Accounts will be terminated if we are not able to confirm an order by phone and do not receive any replies from the account holder. A credit or debit card authorization form will be required to reactivate such accounts.

Account Changes

You may change Service features or Service plans by notifying us in writing or by telephone. All requests need to provide name, address, account number, and administrative PASSWORD or be submitted from the original email address on file.

Ownership of Number

You understand and agree that you are not the owner of any telephone number assigned to you by FonGenie. Ownership of any such phone number is vested solely in FonGenie (who will assign or re-assign such numbers to you for your use during the term of this Agreement). You understand and agree that (a) FonGenie may from time to time need to change the number assigned to you (due to an area code split or for any other reason outside of FonGenie’s control) and (b) following the termination of your FonGenie account for any reason you will no longer have access to such number. In either case, such phone number may be re-assigned immediately to another customer and you agree that FonGenie will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and you hereby waive any claims with respect to any such re-assignment, whether based on contract, tort or other grounds, even if FonGenie has been advised of the possibility of damages.

Modification to Prices or Billing Terms

FonGenie reserves the right, at any time, to change its prices and billing methods for Materials, Content, Services and Accounts, effective immediately upon posting on the Site or by e-mail delivery to you.

Modification; Assignment

We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of FonGenie), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at our Site (www.FonGenie.com). If you do not agree to a significant change, you may terminate this Agreement by giving us written notice within 15 days of receipt of our notice of such significant change. No hand-marked changes on this Agreement or any amendment by you will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original.

Assignment

We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of FonGenie to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.

NO WARRANTIES

THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS ARE PROVIDED "AS IS." WE MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by FonGenie, your sole remedy for such reliance is against the third person making such representation or warranty.

LIMITATION OF LIABILITY

IN NO EVENT SHALL FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF FonGenie HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FonGenie ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1) WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNT.
IN NO EVENT SHALL FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, FonGenie SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND FonGenie AGREE THAT IN NO EVENT SHALL LIABILITY OF FonGenie TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY.
YOU AND FonGenie AGREE THAT THIS SECTION 16 OF THE AGREEMENT, "LIMITATION OF LIABILITY", IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND FonGenie. YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, FonGenie WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

Indemnity

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT OR PASSWORD YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF FonGenie OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

Emergencies

FonGenie IS NOT A "DIAL-TONE" PROVIDER. IN THE EVENT OF AN EMERGENCY WHILE USING YOUR SERVICES, HANG UP AND DIAL "911". YOU MUST USE THE TELEPHONE SERVICE PROVIDED BY YOUR LOCAL CARRIER TO MAKE A 911 CALL.

Force Majeure

Either party shall be excused from any delay or failure in performance hereunder, other than the payment of moneys, caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, terrorism, war or government requirements.

Privacy

Privacy Policy of FonGenie is set forth on the Site (www.FonGenie.com). In addition, you authorize our monitoring and recording of your calls to us concerning your Account or the Services and you consent to our contacting you from time to time by means of (a) automatic dialing equipment, or (b) your FonGenie voicemail box.

Cooperation With Government Authorities

If necessary and in accordance with applicable law, FonGenie will cooperate with local, state, federal, international and/or worldwide government authorities to protect this Site, Materials, Content, Services, Accounts, visitors, customers, FonGenie, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of this Site, Materials, Content, Services and Accounts.

Links to Other Materials

The linked sites are not necessarily under the control of FonGenie and FonGenie is not responsible for the content of any linked site or any link contained in a non-affiliated linked site. FonGenie reserves the right to terminate any link or linking program at any time. FonGenie has selected the links for your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk. Any links to any portion of the Site shall be the responsibility of the linking party, and FonGenie shall not be responsible for notification of any change in name or location of any information on the Site.

Dealings With Advertisers

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through this Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. YOU AGREE THAT FonGenie, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS OR AS A RESULT OF SUCH ADVERTISERS ON THE SITE.

Notices

Except as otherwise provided in this Agreement, notices and other communications under this Agreement shall be in writing and shall be delivered, mailed by first-class mail, postage pre-paid or sent by facsimile or electronic mail, addressed, (a) if to you, at the address as kept in our files or at such other address as you shall have furnished to us in writing, or (b) if to us at 650 Castro Street, Suite 120-450, Mountain View, CA 94041, attention Customer Support Department. Your notice must specify your name and Account. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent by facsimile, when sent and receipt is telephonically confirmed or (iii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. Oral notices shall be deemed effective on the date reflected in our records.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding that body of law applicable to conflicts of law.

Jurisdiction and Venue

You and FonGenie agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted only in a New York state or federal court sitting in NYC, New York, United States of America. You and FonGenie each waive any objection you or FonGenie may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submit to the jurisdiction of any such court in any such suit, action or proceeding.

General Information

If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect.
You hereby consent to FonGenie publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of promotional and marketing activities from time to time by FonGenie.
This Agreement constitutes the entire agreement between FonGenie and you with respect to your use of FonGenie Site, Materials, Content, Services and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between FonGenie and you with respect thereto.
The failure of FonGenie to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.