These Terms of Service constitute the agreement ("Agreement") between Race ("we," "us" or "Race") and the user ("you," "user" or "Customer") of Race's Voice, Television, or internet services and any related products or services ("Service"). This Agreement governs both the Service and any devices, ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms.
Service is offered on a monthly basis for a term which begins on the date that Race activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Race written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation any unbilled charges, plus a disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
1.1 Residential Use of Service
If you have subscribed to Race's Residential services, the Service is provided to you as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. This also means that you are not to resell or transfer the Service to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Race in advance. You agree that your use of the Service, or the use of the Service provided to you by any other person for any commercial or governmental purpose will obligate you to pay Race's higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. Race reserves the right to immediately terminate or modify the Service, if Race determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
1.2 Business Use of Service -Prohibition on Resale
If you have subscribed to Race's Business services, the Service is provided to you as a business user. This means that you are not to resell or transfer the service to any other person for any purpose, without express written permission from Race in advance. You agree that the Race Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. Race reserves the right to immediately terminate or modify the Service, if Race determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
1.3 Prohibited Uses
You agree to use the Service only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Race's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Race reserves the right to terminate your service immediately and without advance notice if Race, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation any unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You are liable for any and all use of the Service by yourself and by any person making use of the Service provided to you and agree to indemnify and hold harmless Race against any and all liability for any such use. If Race, in its sole discretion believes that you have violated the above restrictions, Race may forward the objectionable material, as well as your communications with Race and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1.4 Theft of Service
You agree to notify Race immediately, in writing or by calling the Race customer support line, if your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as Race receives notice of the theft or fraudulent use, you will be liable for all use of the Service stolen from you and any and all stolen Service or fraudulent use of the Service.
1.5 Number Transfer on Service Termination
Upon termination of the Service, Race may, at its sole discretion, release a telephone number that was ported in from a previous service provider to Race by you and used in connection with your Service provisioned by Race to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has been terminated; (ii) your Race account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account.
2. DESCRIPTION OF 911
Race does offer 911 dialing service in the U.S. When you dial 911, your call is routed from the Race network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. You acknowledge and understand that when you dial 911 from your Race service it is intended that you will be routed to the general telephone number for the PSAP or local emergency service provider. Race relies on third parties for the forwarding of information underlying such routing, and accordingly Race and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. Neither Race nor its officers 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 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Race. You agree to indemnify and hold harmless Race and its third party provider from any claim or action arising out of misroutes of 911 calls.
2.1 Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension of your account as a result of billing issues will prevent ALL Service, including 911dialing.
2.2 Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
2.3 Limitation of Liability and Indemnification
You acknowledge and understand that Race's liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this document. You agree to defend, indemnify, and hold harmless Race, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service relating to the absence, failure or outage of the Service, including 911 dialing and/or inability of Customer or any third person or party or user of Customer's Service to be able to dial 911 or to access emergency service personnel.
3. CHANGES TO THIS AGREEMENT
Race may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the "Service Announcements" section of Race's website (currently located at http://www.race.com). Such changes will become binding on Customer, on the date posted to the Race website and no further notice by Race is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device.
You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by Race) when the Service is activated. Race reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Race at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Race decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. Race reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on Race’s website.
4.1 Billing Disputes
You must notify Race in writing within 7 days after receiving your credit card statement if you dispute any Race charges on that invoice or such dispute will be deemed waived. Billing disputes should be notified to the following address:
1325 Howard Ave. #604
Burlingame, CA 94010
Race accepts payments by check and by credit card as set forth in Section 4. Your initial use of the Service authorizes Race to charge the credit card account number on file with Race, including any changed information given Race if the card expires or is replaced, or if you substitute a different card, for Race charges as set forth in Section 4. This authorization will remain valid until 30 days after Race receives your written notice terminating Race's authority to charge your credit card, whereupon Race will charge you the disconnect fee and any other outstanding charges and terminate the Service. Race may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Race is declined or reversed, your credit card expires and you have not provided Race with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to Race for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by Race in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
4.3 Termination/Discontinuance of Service
Race reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If Race discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Race or of a third party provider to which Race is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.5, all of which immediately become due and payable.
You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service. Such amounts are in addition to payment for the Service and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide Race with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date Race receives such certificate.
4.5 Disconnect Fee
Customer will be charged a disconnect fee of $150.00 per voice line upon early termination of Service for any reason or for convenience by Customer. The disconnect fee becomes due and payable immediately upon termination and will be billed directly to Customer's account.
4.6 Payphone Charges
If you make use of Race’s Toll Free Plus feature any toll free feature that may be offered by Race in the future, you acknowledge and agree that Race is entitled to recover from you any charges imposed on Race by payphone owners or operators, either directly or indirectly through Race’s suppliers in connection with toll free calls made to your number, or any charges imposed on Race by its suppliers to recover such costs. Race may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as Race deems appropriate for the recovery of these costs.
4.7 Charges for Directory Calls
Race will charge according to the submitted tariff for each call made to Race directory assistance.
5. LIMITATION OF LIABILITY
Race shall not be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
• Act or omission of an underlyingcarrier, service provider, vendor or other third party;
• Equipment, network or facility failure;
• Equipment, network or facility upgrade or modification;
• Force major events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
• Equipment, network or facility shortage;
• Equipment or facility relocation;
• Service, equipment, network or facility failure caused by the loss of power to Customer;
• Outage of Customer's ISP or broadband service provider;
• Act or omission of Customer or any person using the Service provided to Customer; or
• Any other cause that is beyond Race's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) tobe connected or completed, or degradation of voice quality.
Race's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Race's performance or nonperformance hereunder or (iii) any Race act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
5.1 Disclaimer of Damages
IN NO EVENT SHALL RACE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT Race WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
Customer agrees to defend, indemnify, and hold harmless Race, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device. This paragraph shall survive termination of this Agreement.
5.3 No Warranties on Service
RACE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, RACE DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, AND DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER RACE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO RACE’S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF RACE'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY RACE OR RACE'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.4 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. Race reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if Race determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with Race's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. Race's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold Race against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6. MANDATORY ARBITRATION
Any dispute or claim between Customer and Race arising out of or relating to the Service provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration. The arbitration shall take place in San Francisco, California and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.1 Governing Law
The Agreement and the relationship between you and Race shall be governed by the laws of the State of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6, you and Race agree to submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum. The failure of Race to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You 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 the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.2 Entire Agreement
This Agreement and the rates for Services found on Race's website constitute the entire agreement between you and Race and govern your use of the Service, superseding any prior agreements between you and Race and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon Race unless and until posted in accordance with Section 3 hereof.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.