In this Agreement, each of the following terms and expressions shall have the meaning stated next to it, unless the context indicates otherwise:
1.1 "Access Number" – any of the Access Numbers specified as such on the Website, that enable placing certain calls through the Product.
1.3 "Company" – OMNITelecom Ltd.
1.4 "Customer" – person or entity entering into the Agreement with the Company, for the purpose of provision of the Product by the Company to such person or entity.
1.5 "Destination" – the country (excluding the country to which the Origination relates) in which the Customer shall reside and use the Product.
1.6 "Helpdesk" – the Company's telephony customer Product, details of which are provided on the Website.
1.7 "Package" – specific Product package purchased by the Customer from the Company.
1.8 "Law" – any and all provisions of the law, rules, and/or regulations applicable to the Product (including use thereof) and/or to the Agreement.
1.9 "Origination" – a certain area code in the country, to which the Number (defined in section 3.1 below) designated by the Company as part of the Product is related, as predetermined, pursuant to the Customer's order.
1.10 "Rate" – the rate per minute of a call placed through use of the Product, as specified in the list of rates available on the Website (which lists the termination location of the call), which may be updated from time to time.
1.11 "Rate List" – the list of Rates available on the Website, which can be updated from time to time.
1.12 "Product" – the Product purchased by the Customer from the Company and provided by the Company to the Customer pursuant to the Agreement, as determined by the Package and detailed hereinafter.
1.14 "Website" – website, the home page of which is located at www.local03.com.
2. The Agreement:
2.1 The Agreement, which may be updated from time to time in accordance with requirements of the Law or as otherwise stipulated herein, is the sole and entire agreement between the Customer and the Company with respect to the Product.
2.3 The Company recommends that the Customer periodically review the Website to become aware of any changes to the terms and/or conditions relevant to the Package and/or the Product.
3. The Product
3.1 The Product consists of the following: (a) Routing of calls dialed to a telephone number in the Origination (selected at the Company's sole discretion) which is with respect to the country specified in Customer's order ("the Number"), to a specific telephone number in the Destination (whether a mobile or landline telephone), predetermined as per the Customer's request and subject to the Company's agreement ("the Authorized Number"), while the Customer is at the Destination ("Incoming Calls"); and (b) Routing of calls from the Authorized Number or from other telephone numbers in the Destination, dialed through an Access Number, to a telephone number in the locations available on Company's Rate List (whether of a mobile or landline telephone) ("Outgoing Calls").
3.2 The Product is provided to the Customer on a personal and non-transferable basis.
3.3 The Customer acknowledges that the Number is owned by the Company, and that the Customer is granted a right only to receive, at the Authorized Number, Incoming Calls dialed to the Number within the Product during the Term, in accordance with the terms and conditions of the Agreement.
3.4 Outgoing Calls are placed by calling an Access Number, and are authorized only to the locations listed in the Rate List, and are charged according to the rates in said list. The Customer acknowledges that any calls to a location not expressly listed in the Rate List will be charged separately according to the charges of any third parties that took part in delivery and termination of such calls, and to Company's Product charges, as applicable from time to time, and the Customer agrees to bear all such charges. It is Customer's responsibility to ensure that the access number is a local number in the Origination. It is Customer's responsibility to periodically review the Website to become aware of any changes to the Access Number List.
3.5 To enable the Customer to place Outgoing Calls, the Company provides the Customer with a password or entitles the Customer to create one. It is Customer's responsibility to ensure that the password created by her/him is non-trivial and is difficult for others to discover. The Customer is responsible for keeping the password in confidence and not to disclose it to any third party.
3.6 When the Customer calls the Helpdesk, the Company may request that the Customer provide it with certain information in order to identify the Customer (such as the Customer's identifying details with respect to the Product, including, but not limited to, the password provided by Company upon purchase of the Product or created by Customer).
3.7 The Company is not obligated to permit more than a single Authorized Number.
3.8 Customer acknowledges that use of an Access Number does not support calls to any of the following:
a) - Emergency services (such as special medical care units, law enforcement agencies). The Customer acknowledges that Outgoing Calls cannot be made to such services, and waives any claim and demand against the Company, its officers, directors, employees, representatives, and agents with respect thereto. The Customer agrees that the Product is not a replacement for her/his primary telephone Product.
b) - Directory services (such as 411 in the U.S).
c) - Certain telephone numbers to which Outgoing Calls cannot be placed (such as abbreviated numbers, numbers of certain call services (such as erotic calls), and numbers with non-standard area codes).
4. Purchase of the Product
4.1 The Product must be purchased directly from the Company, whether through the Company's Helpdesk or through registration on the Website.
4.2 Purchase of Product is deemed achieved as soon as the Customer provides the Company with a valid means of payment for the Product ("the Purchase Date").
4.3 The Product is provided on a monthly basis, and unless terminated earlier, is automatically renewed upon the first day after completion of each 1 month term from the Purchase Date (e.g., if the Purchase Date is February 23, the Product is automatically renewed on the 23rd day of each consecutive month). The initial month, as from the Purchase Date, and each such renewal, is deemed a "Service Month".
4.4 The Company is entitled, at its sole discretion, to change any of the Rates at any time. Any Rate change shall be updated in the Rate List and become effective immediately upon such update, and the Customer is responsible to review the Rate List from time to time.
4.5 The Company shall notify the Customer, at least 7 days in advance, by e-mail, of any change to the Rate of a call terminated in the Origination and of a call terminated in the Destination. For such purpose, the Customer shall provide to the Company the address of an active e-mail account used and reviewed by the Customer, and shall be responsible to maintain such account throughout the Term, or alternately provide to the Company the address of a different active account.
4.7 Unless the Customer terminates the Product in accordance with the terms and conditions of the Agreement, the automatic renewal of the following Service Month(s) shall occur, and Customer shall be deemed as accepting any changes of the terms and conditions applicable to the Product (including the Rates).
4.8 The Customer may replace the Package with another Product package offered by Company by notifying the Helpdesk or through the means available on the Website, from the beginning of a Service Month, provided that the Company receives and acknowledges the Customer's request concerning the replacement before the beginning of the Service Month and before charging the Customer for it.
4.9 The Customer may suspend the Product for up to 3 months once, by notifying the Helpdesk. Such notice must state the date on which provision of the Product is to be renewed (which may not be more than 3 months beyond the date of notification). On such date, the Product is automatically renewed and charges may be applied. The Customer shall bear all charges (if any) incurred with relation to the suspended Product.
5. Authorization to purchase and use the Product
5.1 A person may purchase the Product only if she/he is eighteen (18) years of age or older and has the legal authority to enter into the Agreement.
5.2 A person may purchase the Product only for her/his personal use: with respect to a Customer that is an entity, personal use of the Product refers to use by the people employed by and/or managing such entity. Customer may not resell, assign, or otherwise transfer the Product and/or any of its rights pursuant to the Agreement, and may not use the Product at an unreasonably high volume.
5.3 The Product is intended only for normal personal voice telephony, and is not designed for or intended to be used for any other means or for commercial purposes (however, such normal use by a Customer that is an entity is allowed).
5.4 The Product may not be used for collect calls. If such calls are placed with relation to the Product, the Company has the right to charge the Customer fully for these calls, in accordance with the fees of the relevant third party carriers and Company's current Product fees at the moment.
5.5 The Customer acknowledges that she/he is exclusively responsible for checking, before dialing an Access Number, the costs related to calling such number, and exclusively responsible for bearing any and all such costs.
5.6 The Customer acknowledges that any and all costs owed to third parties with relation to use of any portion of the Product, including, without limitation, with respect to use via a cellular telephone (which include, but are not limited to, costs due for receiving incoming calls and costs due for roaming Products (which enable using a SIM card in a country/state from which the card does not originate)) and use via any other device and/or infrastructure, are not included in the Product, and the Customer is responsible for paying such costs in full.
5.7 The Customer is solely responsible for violation of any local laws and/or regulations applicable in the Destination and/or other jurisdiction to which the calls placed within the Product are subject.
5.8 By purchasing the Product, the Customer declares and warrants that she/he is acting lawfully and not operating as a provider of telecommunication Products.
5.9 The Customer is responsible, and must pay, for all use of the Product, whether by Customer or any third party (whether acting with or without the Customer's permission).
5.10 The Customer undertakes to use the Product for lawful purposes only and only in accordance with all terms, conditions, and restrictions of the Package and the Agreement, and in accordance with the Law.
6. Customer Warranties
6.1 The Customer acknowledges that provision of the Product is subject to the Customer’s fulfillment of her/his obligations pursuant to the Agreement.
6.2 The Customer acknowledges that any and all Outgoing Calls placed from the Authorized Number or from other telephone lines (with use of the Number and the password provided to the Customer by Company (or alternately the 4 last digits of the Customer's credit card used as means of payment), in the latter case), including such placed by any third party (rather than the Customer), are charged to Customer.
6.3 It is the Customer's responsibility to keep in confidence the details of the Number and the password provided to the Customer by the Company, and to protect them from theft and loss. It is the Customer's responsibility to supervise use of the Authorized Number. The Customer expressly agrees that she/he shall have no claim and/or demand against the Company with relation to theft/loss of the password used by the Customer with the Product, nor with relation to unauthorized use of the Product by others.
7. Termination of the Product
7.1 The Customer may terminate the Product at any time by notifying the Helpdesk. To eliminate all doubt, it is clarified that termination by the Customer may not be carried out by any method other than calling the Helpdesk and notifying a representative of the Helpdesk to that effect (leaving a message to that effect with the automated answering machine, Email or the Website is not sufficient), and that the Customer's request not to renew the Product for additional Product Month(s) must be received by the Company at least one (1) business day before the next Product Month comes into effect. Termination as per Customer's request is immediate and cannot be delayed to a later time.
7.2 Company may, at its sole discretion and without having to provide reason, refuse provision of the Product, and may terminate the Product at any time for any reason not stipulated herein, by notice to the e-mail address provided by the Customer.
7.4 Without derogating from the aforesaid, the Company may terminate the Product if it determines, at its sole discretion, that the use of the Product at any time exceeded normal or reasonable inbound or outbound private usage (amount or pattern), for the Customer’s Package.
7.5 IN ANY EVENT OF TERMINATION OF THE PRODUCT OTHER THAN PURSUANT TO SECTION 7.2 and 7.1 ABOVE, REGARDLESS OF THE TIME OF ITS OCCURRENCE, THE CUSTOMER IS NOT ENTITLED TO ANY REFUND OF PAYMENT, AND ANY AND ALL SUMS OWED BY THE CUSTOMER IMMEDIATELY BECOME DUE AND PAYABLE.
8.1 In consideration for the Product, subject to use thereof not exceeding the specifications of the Package, the Customer shall pay the Company, with respect to each Service Month, the fixed fee applicable to the Package, as specified on the Website ("the Fee"), together with any applicable taxes.
8.2 The Company shall charge the Fee, together with any applicable taxes, to the credit card, the details of which were provided by the Customer for the purpose of payment ("the Credit Card") in advance, and in any event not later than the Purchase Date and the beginning of each Service Month thereafter. The Company reserves the right to cease its acceptance of the means of payment presented by the Customer.
8.3 In the event of use of the Product in excess of the monetary specifications of the Package ("Excessive Use"), the Customer shall be charged an additional fee as follows:
Upon exhaustion of the limit of the monetary specifications of the Package, the Company automatically and immediately charges an additional fixed fee to the Customer’s Credit Card, (the amount of charge, unless otherwise agreed between the Company and the Customer, is as specified on the Website) ("the Extra Fee"), as consideration for Excessive Use. If the Extra Fee is higher than the actual consideration for the Excessive Use, the difference may be applied to cover additional use of the Product within the respective Service Month. If the consideration is not so used, it is transferred as credit to the consecutive Service Month, subject to the Customer purchasing the Product in such month.
Notwithstanding the aforesaid, Excessive Use for which the consideration (according to the Rates) does not exceed the determined limit (the amount of which is, unless otherwise agreed between the Company and the Customer, as specified on the Website) ("the Limited Excessive Use"), it does not incur the Extra Fee and is charged at the exact amount, to which any applicable taxes are added, on the first day of the consecutive Service Month.
Notwithstanding the aforesaid, if Company becomes aware of Excessive Use only after completion of the relevant Product Month, it reserves the right to charge the Extra Fee and any consideration for the Limited Excessive Use at any time thereafter.
8.4 1-800 Access Numbers and any other toll-free Access Numbers incur an additional fee per minute (in addition to the Rate), as specified on the Website.
8.5 Count of minutes of inbound and outbound calls placed through the Product is in 1 minute increments and it is rounded up to the next minute.
8.6 If an attempt to charge the Credit Card is refused or unsuccessful for any reason, or if the Customer fails to provide the Company with the details of a new credit card before expiration of the existing card, the Company is entitled to discontinue the Product without prior notice.
8.7 Late payment (for any reason) will incur interest at the highest rate applicable by law. Chargeback (withdrawal of paid sums) will incur such interest if eventually it is found not to have been justified. The Customer shall reimburse the Company for all expenses incurred by it with relation to the collection of sums owed to it by the Customer.
8.8 The Company does not provide invoices or other written documentation with relation to the Product to the Customer.
9.2 The Customer acknowledges and agrees that: (i) the Company may provide relevant details of the Customer to third parties for the purpose of, and to the extent required for, collecting monies owed by the Customer for the Product, and (ii) the Company may present information concerning the Customer, including the Customer's identity, to the authorities for investigation and/or prosecution, whenever the Company has reason to believe that the Product was used unlawfully or whenever the Company is required by a legal authority to do so.
10. Limitation of Liability
10.1 The Customer acknowledges that the Product, by its nature, is susceptible to interruptions, that the Product is provided on an “as is” or “as available” basis, with all faults, and that the Company does not undertake that the Product will be available at all times nor that it will be free of interruptions.
10.2 Without derogating from any other provision herein concerning interruption and/or discontinuance of the Product, the Product may be interrupted owing to essential or maintenance works on any of the systems/infrastructures used to provide it.
10.3 The Customer acknowledges that portions of the Product are provided by third parties over which the Company has no control, and that the Company shall not be liable for any act or omission of such third parties, and the Customer undertakes not to make any claim and/or demand against the Company with relation thereto.
10.4 Provision of the Product is subject to, among other factors, telephone line availability and the condition of the telephone devices used.
10.6 In no event shall Company (including its officers, employees, and any affiliates), or any of its suppliers or third parties providing Products with relation to the Product be liable for: (a) any direct, indirect, punitive, special, consequential, or incidental damages, including, without limitation, lost profits or loss of revenue arising with relation to the use or inability to use the Product (including, without limitation, the inability to access emergency Products via the Product), whether under contract, tort, negligence, or strict liability, even if the Company had been advised of the possibility of such claim or damages, or (b) any claim against the Customer by any third party.
10.7 In any event Company's total liability with relation to the Product and the Agreement is limited to the sum actually received by the Company from the Customer as consideration for the Product.
10.8 The Customer is exclusively responsible for and shall pay any and all charges in excess of the Rate, incurred and due to third parties as a result of the Customer's misuse of the Product (including, without limitation, with relation to placing Outgoing Calls not through an Access Number).
11.1 The Customer shall defend, indemnify, and hold harmless the Company, its officers, employees, and any affiliates, and its suppliers, and third parties providing Products with relation to the Product, from and against any and all claims, damages, losses, penalties, costs and expenses, including, without limitation, attorneys’ fees caused to or incurred by any of the aforesaid indemnified parties with relation to the use of the Product or the Customer's breach of any of her/his obligations or warranties pursuant to the Agreement.
12. No Third Party Beneficiaries
12.1 No provision of the Agreement creates or provides for any person or entity other than the Customer and the Company any right or remedy.
13. No Waiver
13.1 The Company's failure to enforce or exercise any of its rights pursuant to the Agreement and/or Law will not constitute waiver of such right.
14. Governing Law and Jurisdiction
14.1 The Agreement is governed by, and shall be construed in accordance with, the laws of Israel. Any dispute not resolved amicably between the Parties may be referred to the competent court in Tel Aviv, Israel, which shall have sole and exclusive jurisdiction thereof.
14.2 Notwithstanding the above, the Company may, at its sole discretion, inform Customer that the Agreement and any dispute related thereto shall be governed by, and interpreted and enforced in accordance with, the laws of, and before the competent court of, Customer’s Country of residence.
15.1 In the event a provision of the Agreement is declared by a competent authority, or is held by the implementation of a law or regulation, as non-valid, this shall not affect the validity of the other provisions of the Agreement, which shall remain in full force, and such non-valid provision shall be replaced by a valid one with the closest meaning possible.