MASTER SERVICES AGREEMENT
VOICE AND DATA SERVICES
a. Customer may purchase certain communication, information, voice and/or data services from Provider (“Service” or “Services”) as described in Provider’s Schedules of Charges, Proposals, Service Orders, and/or Quote (jointly “Price Quotation(s)”). Each Service provided pursuant to this Agreement shall be the subject of a written Price Quotation executed by Customer, including any Services Customer receives from Provider’s representatives, affiliates, subsidiaries, successors, or assignees pursuant to this Agreement; and this Agreement applies to each Service (whether offered on a stand-alone basis or in an integrated package); and, shall take precedence in any conflict with any other agreement(s) between Provider and Customer with the exception of this Agreement, in which case, this Agreement shall control.
b. Notwithstanding anything to the contrary contained in this Agreement, Provider may procure any portion of a Service or infrastructure necessary to provide a Service from subcontractors and interconnecting carriers and deliver the same or a portion thereof to Customer. Provider’s arrangements with its subcontractors and interconnecting carriers with respect to delivery of a Service shall remain in full force and effect during the term of this Agreement.
c. During the term of service, the Customer may request increase, modification, reduction or deletion of Services covered under this Agreement. Upon Customer’s request, Provider shall furnish Customer with a Price Quotation for any service or price changes that may arise from increase or modification of Services, and Early Termination Fees (as defined in Section 7 of this Agreement) that may result from reduction or termination of a Service. Provider shall only modify or terminate Service(s) upon Customer’s written acceptance, provided that (1) modified Services are supported by the Provider and are a part of the Provider’s standard product or service offering, (2) modified or terminated Services will not impact other Services covered by this Agreement, and (3) modified or deleted Services are not in contradiction with other articles of this Agreement.
d. Customer will cooperate with Provider to enable Provider to fulfill its obligations under this Agreement, together with applicable Price Quotations and associated service schedules and/or supplements (e.g. Customer will grant Provider safe and reasonable access to Customer’s office premises and its individual end-users (“End Users”) to enable Provider to install, maintain, and repair equipment and Services, including use of Customer’s Proprietary Network Information (“CPNI”), which shall not be unreasonably withheld, to assist Customer and End Users but only to the extent specifically requested by Customer in each case).
e. In order to deliver Services, Provider or its vendors may install its equipment at the Customer’s premises. That equipment (known as “CPE”) will remain the property of Provider and shall be returned by Customer or End User to Provider upon the end of Service(s).
f. Provider reserves the right to upgrade the capacity of, and make enhancements to Provider’s systems and Services. Provider shall attempt to minimize interruption to, or impairment of, a Service arising from the implementation of any such enhancement or upgrade. In no event shall interruption for enhancements, upgrades or maintenance constitute a failure of performance by Provider of a Service in any manner. In the event Provider determines that it is necessary to interrupt a Service for the performance of scheduled maintenance, Provider will use commercially reasonable efforts to notify the Customer at least three (3) days prior to such interruption
2. ADDING SERVICES
Services may be added to this Agreement, at a later date, by Customer signing a subsequent Price Quotation(s), which will become a part of this Agreement for all purposes, and will stipulate the term and price of each additional Service. Any Price Quotations issued by Provider shall state a Quotation expiration date (standard Price Quotations are valid for thirty (30) calendar days). Provider reserves the right to change the prices for quoted Services if Customer does not accept the quotations within specified validity period.
3. PAYMENT POLICY
a. Customer agrees to pay all the applicable fees and incidental charges incurred under Services covered in this Agreement and attached Schedule(s) of Charges and / or Price Quotation(s) (including but not limited to charges associated with installation, expedites, moves, adds, changes, deletions and cancellations), federal, state and local taxes, surcharges, fees, including universal service and telecommunications relay service fees, and other charges incurred by or through Customer, including charges for any equipment purchases made by or through Customer. Billing for each Service provided by Provider shall commence at the beginning of the Term of such Service, as described in Section 7 of this Agreement. Provider may charge additional fees for changes requested and accepted in writing by Customer to orders after this Agreement and/or relevant Price Quotation is signed by Customer, but before the Service is installed.
b. Customer agrees to pay all Provider’s invoices within the billing terms stated on each Provider’s invoice. Provider reserves the right to change the billing terms at its sole discretion based on Customer payment history and credit history as described in Paragraph 4 herein.
c. Provider is not responsible for any delays not caused by Provider that impede Customer’s ability to use installed Service(s), fully or partially, included, but not limited to delays requested by Customer or caused by a third party, or delays incurred as a result of problems connecting the installed Service to Customer’s LAN, PBX, or other Customer equipment by Customer or a third party.
d. Provider issues invoices once per month at the beginning of a month. Following installation of monthly recurring Services, initial charges on the first invoice from Provider will include any hardware and start-up or installation fees, and charges for a part of the first month Customer using Services.
e. Provider’s standard payment terms printed on Provider’s invoice read “payable upon receipt”. Customer has twenty-one (21) calendar days’ grace period to submit payments. If Customer fails to make payment of the balance due ten (10) days past due date, or make habitually late payments, Provider has the right to suspend Customer’s Service(s) upon ten (10) calendar days’ prior written notice (except where specified by FCC, State or US Government regulations). For the purposes of this paragraph, habitual late payments defined as three (3) late payments during any twelve (12) months period. If the Service is suspended due to Customer’s non-payment, it will not be restored until all charges including a five hundred dollars ($500) restoration fee are paid in full. If Customer fails to bring the account balance current within ten (10) days following suspension, Provider has the right to disconnect Service(s), including, but not limited to: reclaim all Provider-owned phone numbers, IP addresses, hardware and charge all applicable Early Termination Fees specified in this Agreement. After disconnection, a Service may only be restored at Provider’s sole discretion and after all charges including any interest and a Service restoration fee have been paid in full. Provider reserves the right to require the Customer to place a non-interest bearing deposit equal to two (2) months of monthly Service usage and applicable taxes and surcharges with Provider in the event of Customer making habitually late payments or being repeatedly disconnected for non-payment. Provider will return the deposit to Customer at the end of Service(s) or will use the deposit monies as payment against the last two (2) months of service.
f. Payment options include check, money order, credit card (Visa, MasterCard and American Express), wire transfer or ACH payment. One-time penalty of thirty-five dollars ($35.00) will be charged for each past due payment. Provider reserves the right to charge interest for any past due amounts at the minimum of 1.5% per month or the maximum rate allowed by law, prorated for each day that payment is past due.
g. Provider may use any reasonable collection methods (including but not limited to sending Customer’s account to a third party collections agency and/or submitting Customer to a credit rating agency for notation on Customer’s credit profile) to obtain payment for past due balances that are not paid within ten (10) calendar days after written notice to Customer of failure to pay. Customer agrees to reimburse Provider for its costs, including but not limited to reasonable attorneys’ fees and/or collections agency fees associated with collecting such payments, and for additional fees assessed by Provider for any check returned due to insufficient funds.
4. CREDIT INQUIRIES AND DEPOSITS
a. Customer authorizes Provider to inquire into Customer’s credit history, including contacting consumer reporting agencies or any other references for Customer’s credit information.
b. Should Provider find Customer’s credit history inadequate, Provider at its sole discretion may require Customer to prepay all hardware and start-up charges and place a non-interest bearing security deposit equal to two (2) months of monthly Service usage and applicable taxes and surcharges with Provider for the duration of Service(s). Provider may refuse Customer Service(s) until Provider receives such deposit from Customer. At the end of Service(s), Provider will refund the deposit or use the money as payment against the last two (2) months of Customer’s service in such manner that no money is owed to the Customer or Provider upon completion of Service(s). If Customer refuses to place the security deposit with Provider; Provider reserves the right to refuse the Service(s) to Customer.
c. If Customer’s credit rating changes during the course of service covered by this Agreement, Customer may request and Provider shall carry out an additional inquiry into Customer’s credit history as described hereinabove. Customer may request an additional credit inquiry by Provider once each calendar year. If Provider finds that the Customer’s credit rating improved, Provider may at its sole discretion return Customer’s deposit to Customer or use it against the outstanding invoices for Service(s) to Customer.
5. BILLING DISPUTES
Notification from Customer of any dispute regarding an invoice for services received from Provider pursuant to Terms and Conditions of this Agreement must be submitted to Provider’s billing department within sixty (60) days from the date of the invoice. Provider’s billing department shall issue a trouble ticket that the Customer shall retain for their records. If Customer fails to open a trouble ticket within sixty (60) days of invoice date, the Customer will be deemed to have waived any objection to such charge. However, regardless of any billing disputes, Customer shall pay all due balances in full as stated on each Provider’s invoice and in accordance with the Payment Policy as described in Section 3 of this Agreement. Provider will use commercially reasonable efforts to resolve all such disputes within thirty (30) days. However, Provider reserves up to sixty (60) days to investigate a dispute that may require information from Provider’s underlying carriers and other vendors. Upon resolution of a dispute in Customer’s favor, disputed amount will be credited against Customer’s next month’s invoice. If the resolution of the dispute is in Provider’s favor, all past due amounts are due upon presentation of an invoice for those past due amounts.
6. REFUND POLICY
Any refunds issued by Provider to Customer will be issued as service credits.
7. TERM AND TERMINATION
The Term for each individual order or contracted Service is listed on Provider’s Price Quotation defining the Service and becomes a part of this Agreement when accepted and executed by Customer.
a. The Beginning of Term shall be defined for each Service as the date on which Provider turns on a Service defined in accompanying Price Quotation(s) and notifies the Customer that Service is available for use. Beginning of Term may be different for each Service provided under this Agreement.
b. Upon reaching the end of the Term of each Service(s), the initial Term will automatically renew for successive one (1) year periods unless Customer notifies Provider in writing of a desire not to renew, or renew for a different term at least sixty (60) days prior to the expiration of the then-current Term.
c. Customer’s failure to make payments before the end of Term, as specified in Section 3 herein, shall constitute a material breach. Provider may suspend or terminate Services to Customer for non-payment as provided in Section 3e of this Agreement. If Provider terminates Services to Customer during the Term pursuant to section 3e, Customer is obligated to pay the Early Termination Fee, which shall be calculated as the sum of (a) fixed recurring charges for the number of months remaining in the then-current Term of the Service(s), and (b) usage-based charges for the number of months remaining in the then current Term of this Agreement multiplied by the average monthly usage charge over the three (3) most recent 30-day billing periods or minimum revenue commitment associated with the Service(s), whichever is greater.
d. Where Customer cancels installation of any ordered services within five (5) business days from the order placement or prior to Provider incurring any charges, or initiating internal processing of Customer’s orders, there shall be no Early Termination Fees. Where Provider’s internal provisioning process has been initiated, and/or the installation of facilities and/or equipment has started prior to the cancellation of ordered Service, the Customer shall be responsible for Early Termination Fees (“ETF”) per ordered Service as defined below:
Early Termination Fee
|The non-recurring cost of Local Number Portability (LNP) cancellations more than 48 hours prior to Firm Order Confirmation (FOC) date. Price per each phone number, aka “DID”||$20.00|
|The non-recurring cost of Local Number Portability LNP cancellations less than 48 hours prior to Firm Order Confirmation (FOC) date. Price per each phone number, aka “DID”||$150.00|
|T1 and Ethernet-over-Copper circuit cancellation 15 – 7 calendar days prior to installation date. This is a recovery of the ILEC’s penalty||$400.00|
|T1 and Ethernet-over-Copper circuit cancellation in less than 7 days prior to installation date. This is a recovery of the ILEC’s penalty||1,200.00|
|Ethernet-over-Fiber circuit cancellation ETF at any time after order placement is equal to ILEC’s penalty recovering cost for invested labor and resources||Equal to ILEC’s penalty|
|Cellular based Wireless access service cancellation in less than 7 days prior to installation date. This is a recovery of the costs including hardware acquisition, labor invested in Cellular circuit provisioning, and hardware staging and configuration.||$400.00|
e. Termination of Service(s) covered in this Agreement resulting from a material breach by the Customer, and if Customer does not pay the amounts due at the end of Service(s) Term, will result in the Provider reverting all IP addresses and phone numbers assigned to End Users by the Provider back to Provider. Additionally, in the event of termination for cause by Provider, Customer shall return all Providers’ property (including but not limited to Provider’s equipment, facilities, and software) to Provider. Provider will provide its commercial shipping account and will pay associated shipping charges for its equipment to be returned. Provider reserves the right to charge Customer for equipment not returned to Provider.
8. ACCEPTABLE USE POLICY
a. Customer agrees not to use or allow the use of the Service to in any way transmit or post material that:(a) is prohibited by any law or regulation, or facilitates, or encourages the violation of any law or regulation; (b) disrupts third parties’ use of any services; (c) invades the privacy of third parties, or violates the intellectual property rights or other rights of Provider or any third party; (d) is abusive, profane, libelous, slanderous, obscene, threatening, misleading, harassing, discriminatory, or otherwise harmful or objectionable; (e) Customer will not allow or cause the transmission or propagation of any virus, worm or other harmful or disruptive component; (f) violate or tamper with the security of any computer equipment, network, or program; (g) constitute, facilitate, or encourage unsolicited commercial email or “spam”. Customer represents and covenants that any current or planned website connected to Internet by Provider’s circuits or hosted by Provider or its partners on Customer’s behalf (the “Hosted Website”) does not and will not violate these conditions of Acceptable Use Policy (“AUP”). If Customer violates these policies, after fourteen (14) days written notice to cure, Provider reserves the right to immediately suspend or disconnect Service and charge all applicable termination fees.
b. Customer shall apply business reasonable efforts to ensure confidentiality of any access credentials that Customer may obtain from Provider. If Customer shall allow End User to use Provider’s Services and to have access to any Provider’s resources, Customer shall remain responsible for End User maintaining confidentiality of the access credentials. If Customer or End User has reasons to believe that their account or resources with Provider are no longer secure, Customer must promptly notify Provider in writing. Provider employs automated performance and security monitoring, and fraud detection systems allowing to detect unauthorized access and use. In the event of Provider identifying that access credentials provided to Customer have been compromised, or if Provider’s systems detect suspicious or unauthorized use of resources assigned to Customer, Provider reserves the right to immediately suspend the effected Service(s) and inform the Customer. Provider will restore the service upon determination and liquidation of the root cause of unauthorized use.
c. All Provider’s usage plans are subject to “intended use” limitations which restrict uses such as “auto dialers” a.k.a. high volume short (under 6 seconds) duration calls generated by automated dialing equipment, and outbound call centers generating atypical, high volume usage.
d. Customer agrees to not resell the Service provided by Provider without express written consent.
e. Provider reserves the right to amend the AUP from time to time. Up to date AUP is available on Provider’s Website at the following URL: https://vocalip.com/aup/
9. FRAUDULENT ACTIVITY
a. Provider shall not be responsible for any fraudulent use of: (i) the Services; (ii) Provider’s or Provider’s vendors’ equipment in Customer’s or End User’s use located on Provider’s, Provider vendor’s, Customer’s or End Users’ premises that was not last installed or configured by Provider or the password for which was changed by others other than Provider; or (iii) Customer’s LAN, PBX, or other equipment, by Customer or any third party as a result of any hacking of or unauthorized use of the same by Customer or any third party.
b. Customer shall be responsible for regularly instructing, educating, and requiring its End Users to select and use sufficiently complex and strong passwords in connection with the End Users’ use of the Services, Provider’s or Provider’s vendors’ equipment in Customer’s or End User’s use on Provider’s, Provider vendor’s or Customer’s or End Users’ premises, and Customer’s LAN, PBX, or other equipment and to maintain the confidentiality of such passwords. Customer shall also be responsible for maintaining the secure configurations of Customer’s LAN, PBX, or other equipment as well as any of Provider’s or Provider’s vendors’ equipment utilized at Customer’s or End Users’ premises that was not last installed or configured by Provider or the password for which was changed by others other than Provider.
c. Customer shall be responsible for the consequences, including but not limited to unauthorized or fraudulent calling charges or fees, resulting from any unauthorized or fraudulent use of the Services, Provider’s or Provider’s vendors’ equipment in Customer’s or End User’s use on Provider’s, Provider’s vendors’ or Customer’s or End Users’ premises, or Customer’s LAN, PBX, or other equipment resulting, in whole or in part, from Customer’s End Users’ selection and use of simple or weak passwords that may be easily pickable, hacked, obtained, or guessed by unauthorized third parties and/or systems, or by Customer’s or End User failure to maintain secure configurations of Provider’s or Provider’s vendors’ equipment on Customer’s or End Users’ premises that was not last installed or configured by Provider or the password for which was changed by others other than Provider, or Customer’s LAN, PBX, or other equipment. Customer agrees to notify Provider promptly if the Customer discovers any of its passwords are breached or stolen.
d. Provider operated fraud detection systems that offer various levels of fraud protection. Customer may enroll in additional fraud protection by Provider that is offered for a fee which will result in Provider hardening fraud detection policies for Customer and providing manual oversight to make sure that hardened fraud detection policies do not inconvenience or block Customer’s normal calling patterns. If Customer choses to enroll in additional fraud protection, Provider will facilitate to Customer for Customer’s evaluation a monthly report of calling per telephone number and user. Hardening of fraud detection policies does not change responsibilities of Provider and Customer as stated in sections 9a, 9b and 9c above.
10. CAPACITY LIMITATIONS
a. Service(s) covered in the Agreement may have certain storage space and bandwidth capacity limitations. Customer agrees that Provider may measure Customer’s storage space and bandwidth usage to provide higher quality of service. When notified by Provider of the shortage in storage space and / or bandwidth, Customer and Provider shall discuss in good faith upgrading the storage space or bandwidth as necessary to avoid degradation of service. Provider shall furnish the Customer with written notice describing the reasons for the capacity deficit and provide a Price Quotation for the increased capacity. Customer is responsible to pay Provider for the upgraded capacity as it is increasing service capabilities except to the extent that Customer does not accept the Price Quotation. If Customer refuses to upgrade or pay for the upgrade, Customer may not hold Provider liable for the degradation of Service(s) quality due to shortage in storage space and / or bandwidth capacity.
b. Provider will store Customer’s voicemails on phone and in on-line portal for ninety (90) days after which voicemails will be deleted. Customer has the option to store voicemails for a longer period in Provider’s on-line portal. Provider will charge Customer $0.25 per gigabyte for megabytes of volume of emails stored beyond ninety (90) days.
c. If Customer purchases Call Recording and Call Transcription services, Provider will store call recording and transcriptions in on-line portal for ninety (90) days. Customer has the option to store call recording and call transcriptions for a longer period. Provider will charge Customer $0.25 per gigabyte for megabytes of volume of call recordings and transcriptions stored beyond ninety (90) days.
11. UNLIMITED CALLING PLANS
From time to time Provider may offer Unlimited Calling plans. Provider’s Unlimited Calling plans (also known as unmetered calling plans) include only inbound and US domestic outbound calling. Customer agrees to use Unlimited Calling plans strictly for live conversations between two people for normal use and that no call should be left unattended for over ten (10) minutes. Customer agrees not to use Unlimited Calling plans for any type of “spamming”; telemarketing calls; any type of data, broadcast or recorded transmissions; any monitoring services; predictive dialer; or abusive messaging or calling. Repeated and extended duration calls made to numbers where communication takes place exclusively with an automated system are not allowed. Customer understands that the Unlimited calling plans are not intended to be used continuously, without breaks, to create the functional equivalent of a dedicated line.
Provider reserves the right to suspend, terminate or restrict Unlimited Calling plans to Customers or End Users who use the plans in a manner that interferes with other customers’ service, degrade service quality for other customers, and interrupt or negatively impact the network resources.
Customer agrees not to use Provider’s Unlimited Calling plans in any way that would create continuous high call sessions or use it in a manner that is typical with Call Center type use. Provider may charge Customer for the inbound calls made into Call Center queue (as would be defined in corresponding Price Quotation). Provider reserves the right to suspend or cancel Customer’s account if Customer’s call usage patterns continuously and excessively exceed the average usage of other Customers on the same plan. In the alternative, Provider may convert Customers or End Users that use Unlimited Calling plans in excess of acceptable levels to a metered, per call or per minute calling plan at a higher rate, at Provider’s discretion. If Provider converts a Customer or End User to a metered calling plan, the Provider will notify the Customer within ten (10) business days of the change. Provider reserves the right to deny Unlimited calling plans to Customers or End Users for any reason at any time, including during the term of service, at Provider’s sole discretion.
12. RESALE OF UNMANAGED CIRCUITS
Customer may purchase from Provider Unmanaged Circuits defined as low cost Internet access circuits provided without Service Level Agreement or with “Best Effort” Service Level Agreement by Cable companies and telecommunications carriers, jointly “Unmanaged Underlying Carriers”, and delivered directly to Customer without passing through Provider’s network. Unmanaged Circuits include Verizon’s FIOS, AT&T’s U-verse, CenturyLink’s Business and Residential Fiber Access products, as well as similar products by telecommunications carriers and Cable companies.
Provider is a value added reseller of Unmanaged Circuits for the purposes of (i) consolidating vendor management and billing, (ii) providing up/down status monitoring and alert notifications via Provider’s automated systems, and (iii) providing professional services to supervise that Unmanaged Underlying Carriers address to resolution all service incidents related to Unmanaged Circuits and to upkeep Unmanaged Circuits performance in accordance with terms and conditions as stated on each Unmanaged Underlying Carrier public websites.
Provider does not offer any warranties (expressed or implied) and performance guarantees (expressed or implied) of the resold Unmanaged Circuits. Provider’s ability to supervise Unmanaged Underlying Carriers is limited to interfacing with Unmanaged Underlying Carriers’ incident management systems for filing and escalating related incidents, and to conducting progress and project management calls. In the event of an incident, Provider will carry out its supervisory steps in a business reasonable manner until each incident is resolved by Unmanaged Underlying Carrier providing the circuit. Provider is responsible to follow up on each incident.
|Monday – Friday 9AM – 6PM||At the shortest time interval as defined by Unmanaged Underlying Carrier, or every 6 hours|
|Evenings, Nights and Weekends||At the shortest time interval as defined by Unmanaged Underlying Carrier, or every 12 hours|
Provider may not be held liable for failure or slow performance by Unmanaged Underlying Carriers to conduct the repair or upkeep the performance of the circuit for as long as Provider took supervisory steps as defined herein above. CPE provided as part of the unmanaged Services shall solely carry the manufacturer’s warranty and shall not be covered under any other Vocal IP warranty or representation. Customer is responsible to maintain and return CPE provided with Unmanaged Circuit as defined in paragraphs 21a-21d of this Agreement.
13. VOICE SERVICES OVER THIRD PARTY INTERNET ACCESS
Customer or End User may choose to operate Provider’s voice services over third party Internet access (also known as “Bring Your Own Bandwidth” or “BYOB”). Customer’s sites that use third party Internet access for voice calls may experience less than perfect voice quality. Most often, such quality issues come from either (i) distortions to voice packets traversing over open Internet, or (ii) lack of Quality of Service (‘QoS”) configuration on Internet routers, firewalls and LAN switches managed by Customer or a third party. Provider does not guarantee quality of voice calls commencing over a third party provided Internet access. At the same time, Provider will work with every customer to ensure the best performance of Provider’s voice services by engaging Customer’s IT staff and Provider’s professional services group to configure Customer’s Internet access routers, firewalls and LAN switches with Quality of Service for voice calls. As an additional option, Provider offers SD-WAN service that will allow for a partial QoS. This approach allows Provider to deliver business quality communications for our customers with less than optimal network circuits, LAN or equipment configuration. Provider’s professional services group charges $175.00 per hour fee to work on Customer’s LAN and Customer owned LAN equipment.
14. CALLING SERVICES EXCLUSIONS
Service(s) covered by this Agreement do not support
a. Calls to NPA-976-XXXX
b. Calls to 900-XXX-XXXX
c. Inbound Collect Calls
d. Calls to any other number or service where under normal telecommunications industry agreements the calling party is to be billed for the call by the calling party’s provider on behalf of the call receiving telecom provider or receiving telecom provider customer(s).
15. INTERNATIONAL CALLS
Customer may place telephone calls to any international destination as offered by Provider. Customer is responsible for all international calling charges at the rates offered by Provider and originated from Customer’s phone numbers (DIDs). International rates are subject to change upon five (5) days prior written notice. Such rate changes shall be submitted to Customer by electronic mail.
16. PAYPHONE SURCHARGE
In the event that Provider is invoiced or otherwise demanded to compensate any Payphone Service Provider for toll-free or access code calls which originate from payphones, Customer agrees to pay Provider a sum equal to the exact amount owed to the Payphone Service Provider(s) (“Payphone Surcharge”) and are made to Customer’s toll free phone number(s).
17. ACCESS TO CUSTOMER’S PREMISE AND EQUIPMENT
With respect to any installation, maintenance, or repair provided by Provider in connection with the Service, Customer agrees to furnish Provider with necessary access to Customer’s premises, internal wiring, CPE, and other facilities and equipment and to allow Provider to perform such installation, maintenance or repair upon reasonable notice to Customer.
18. DEMARC EXTENSIONS AND INSIDE WIRING
During circuit installation and in order to deliver the circuit to Customer, Provider and its contractor will install a wire extension from building’s Main Point Of Entry (“MPOE”) or from a telephone/utility closet to Customer’s premise (site), the procedure known as extension of carrier’s point of demarcation of “Demarc extension”. Provider will terminate terrestrial circuits on a fiber or copper patch panel, wiring block, or SmartJack inside Customer premises.
a. Provider and its contractors shall have the sole discretion to determine the appropriate length of extension in each application.
b. Provider will, at its sole discretion, either fish wire and terminate a jack, where it deems the wall in question is “fishable”, or able to run wire through Customer provided wire mold where appropriate.
c. Provider will connect the jack to the incoming circuit at the new Demarc extension and perform a test of the circuit for functionality.
d. With installation of T1, DSL or Ethernet-over-Copper (EoC) circuit Provider reserves the right to charge Customer construction cost recovery fee for a Demarc extension exceeding 150 feet in length, performed in over 3 hours of on-site work and/or requiring construction i.e. conduit installation, drilling, walls and ceiling penetration, etc. .
e. Provider or Provider’s contractor will charge Customer construction cost recovery fee for any installation of managed Ethernet-over-Fiber (“EoF”) circuit where Demarc extension is over 15 feet in length. Provider or Provider’s contractor will send to Customer a written estimate of construction costs. Provider will commence necessary construction only upon obtaining Upon Customer’s written approval, which shall not be unreasonably withheld. In the event of Customer refusing to approve construction costs, within business reasonable time, Provider at its sole discretion may cancel the circuit order without any liabilities or penalties to Provider.
f. Provider has no ownership responsibility of any Provider performed Demarc extensions including, but not limited to, any future maintenance. In case of failure, Provider will use commercially reasonable efforts to repair failed Demarc extension and restore Customer’s circuit. Provider, at its sole discretion, may charge Customer for such work.
g. If requested, Provider may perform inside Local Area Network wiring for an additional charge.
h. For Cellular data service installation in order to accomplish the best Cellular network signal and functionality, Provider’s Cellular access equipment may be placed at any location within Customer’s premises where Cellular signal is the strongest, including locations near windows, roof or ceiling. Inside wiring may be required to accommodate such equipment placement. Provider reserves the right to charge Customer construction cost recovery fee for any inside wiring necessary for placement of the Cellular access equipment.
19. CIRCUIT RELOCATION
a. Customer may request to relocate Provider’s circuits before the end of Term. Provider will process Customer’s request if (i) the existing (old) circuit has been in place for at least 12 months from the start of service date, (ii) relocated (new) circuit is within the same metro area and within Provider’s network coverage, (iii) new circuit is provisioned for the same or greater Term beginning on the day of new circuit start of service, and (iv) new circuit is charged at the same or greater monthly price or Monthly Recurring Charge as the old circuit. Provider will charge Customer for relocation of a circuit one time the value of monthly recurring charge of the new circuit. Provider will charge Customer a onetime fee for any Demarc Extension beyond 150 feet in length if it is necessary for the new circuit installation.
b. Ethernet-over-Fiber and any other fiber optic cable based circuits may not be relocated before the end of Term. Each fiber circuit relocation is considered on individual case basis.
20. CHANGE IN SITE CONDITIONS
Provider may not be held liable for any delays and changes to Customer Services or installation details, whether chargeable to Customer or not, incurred as a result of a change in Customer’s site conditions after Provider conducts site survey or if site survey documentation furnished to Provider is inaccurate. Provider will use commercially reasonable efforts to work around the changes and provide Customer with services outlined in the applicable Price Quotation(s). In case such work will require additional charges to Customer for Demarc Extension, LAN or other cabling, Provider will inform the Customer in writing of the amount of charges and details of work, and will proceed only upon Customer’s written approval. Customer may elect a different vendor or contractor to perform work within a reasonable time period and not to exceed thirty (30) calendar days. Such different vendor or subcontractor shall perform the work in accordance with Provider’s requirements and specifications that Customer should collect from Provider and pass onto the vendor or subcontractor. Provider may cancel the site installation without penalty to the Provider if the Customer refuses to implement or pay for Demarc Extension, LAN or other cabling identified as required by Provider. Customer is responsible for Early Termination Fees as stipulated in paragraph 7d of this Agreement in case of cancellation of the site’s installation and services resulting from Customer’s unwillingness to implement or pay additional charges resulted from incorrect Site Survey information, or changes to site’s conditions since the site survey.
21. EQUIPMENT RENT
As required by Provider in order to deliver Services, Customer shall rent equipment (known as “CPE”) to be placed at Customer premises (sites) listed in the attached Price Quotation for the duration of Service(s) and at the monthly price stated on the Price Quotation. CPE is provided on “as is” basis. It is understood that Provider keeps ownership of CPE at all times and Customer is responsible to return CPE to Provider upon the end of Service(s).
a. Customer agrees, at its sole expense, to provide the proper environment, electrical and telecommunications connections for rented CPE. Customer is solely responsible for correcting any hazardous conditions that may adversely affect CPE. If Customer is unable or unwilling to maintain proper electrical or environmental conditions, or telecommunications connections, Provider shall have the right to waive all warrantees and service guarantees associated with any Service that CPE is a part of, included but not limited to circuit up-time and quality of Service(s).
b. Customer shall be solely responsible for the return of CPE to Provider within fourteen (14) days upon end of Service(s) at each Customer location (site) or termination of the Agreement in good condition and working order (ordinary wear and tear excepted).
c. Customer agrees that this Agreement shall not grant Customer any property rights for any of the equipment. Customer shall use CPE solely in the conduct of its business in a manner and for the use contemplated by the manufacturer thereof. Provider may require markings to be affixed to CPE. Customer shall keep CPE free from any markings or labeling, which might be interpreted as a claim of ownership thereof by Customer. Customer shall not, without prior written consent of Provider, assign, lend, or pledge CPE; permit to exist any security interest or lien with respect to CPE; or cause or permit any of CPE to be moved from the location specified in the Agreement. Customer shall bear the risk of any loss, theft, damage or destruction to CPE during the Term of Service. Customer shall obtain and maintain at its own expense insurance against the loss of or damage to such CPE, including without limitation, loss by fire, water or other casualty.
d. Provider shall provide routine diagnostics and maintenance of CPE. Customer agrees to allow Provider or Provider’s agent necessary access to Customer’s premises, internal wiring, and other facilities and to allow such CPE maintenance and repair to be performed.
22. EQUIPMENT WARRANTY
Customer is renting the equipment (CPE) “as is” and, since Provider is not the manufacturer of the equipment, the manufacturer’s agent or the sales agent, Provider makes no other warranty or representation whatsoever, expressed or implied, as to design or condition of the equipment, or intellectual property rights (including without limitation any patent, copyright and trademark rights, of any third party with respect to equipment, whether relating to infringement or otherwise) with respect to the equipment. Provider shall not be responsible for any direct, indirect, incidental or consequential damages arising from possession or use of the equipment, including but not limited to, lost profits or business revenue, lost business, whether such damages are foreseeable and whether Provider has been advised of the possibility of such damages.
During the Term of this Agreement and for the two (2) year period immediately following the termination or non-renewal of this Agreement, both parties agree not to disclose any Confidential Information provided under, or as a consequence of this Agreement and specifically marked or specified as such, to any other person, firm or entity (except a governmental or regulatory agency which shall issue a request) and shall use same only to further the purpose of this Agreement. Provider and Customer hereby agree, on behalf of itself, its employees or any other representatives not to utilize any Confidential Information or End User information other than in connection with performing under this Agreement. “Confidential Information” means any and all information of a confidential or proprietary nature disclosed by one party (“disclosing party”) to the other party (“recipient”), including, but not limited to, technical information, customer lists, business/financial information, CPNI, and pricing information, as a consequence of this Agreement. Confidential Information shall not include information which: (a) was known to the recipient (or an affiliate of recipient) prior to the time of disclosure; (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement by the recipient; or (c) is subsequently lawfully received by recipient (or an affiliate of recipient) from a third party without any obligation of confidentiality to the disclosing party.
24. PROTECTION OF SYSTEMS AND BUSINESS
a. Customer agrees that Provider may monitor from time to time the use of the Services and disclose to its subcontractors and consulting individuals or organizations such use or other information related to the Customer’s account that Provider feels is necessary to maintain, repair, and protect Customer’s systems or business.
b. Customer agrees that for a period beginning with the signing of this Agreement and for a period of twenty four (24) months immediately following the termination of this relationship with Provider for any reason, whether with or without cause, neither party shall either directly or indirectly solicit, induce, recruit or encourage any of either party’s employees, contractors, sub-contractors, agents, sub-agents, licensees or others who through their relationship with either party, have been identified to either party as employees, contractors, sub-contractors, agents, sub-agents, licensees or other designated distribution partners of either party, to leave their employment, or take away such contractors, sub-contractors, agents, sub-agents, licensees or other designated distribution partners, or attempt to solicit, induce, recruit, encourage or take away employees, contractors, sub-contractors, agents, sub-agents, licensees or other designated distribution partners of either party, either for itself or for any other person or entity for any purpose whatsoever.
25. GENERAL AND SPECIFIC DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; AND REMEDIES
a. Provider expressly disclaims all responsibility with respect to intellectual property related to equipment provided under this Agreement not manufactured by Provider.
b. Provider specifically does not warrant (A) that the Services including security services will be (1) uninterrupted and continuous, (2) error or virus free and secure from third party intrusions, and (3) compatible with Customer Equipment; and (B) that Provider will continue to have all necessary access rights to Customer premises. Provider also does not warrant any service, equipment, or software provided by a third party for which Provider is a reseller or a sales agent.
c. Except on the case of gross negligence or willful misconduct, neither party shall have any liability for indirect, punitive, incidental, consequential, or special damages suffered by the other party, regardless of whether or not such party has been advised of the possibility of such damages. Provider’s liability under this Agreement shall not exceed the total service fees paid to Provider during the first three (3) months of the Agreement.
d. Except in the case of gross negligence or willful misconduct, the disclaimers of warranty in subsection (a) and (b) of this section, and limitation of liability in subsection (c) of this section also apply to Provider’s suppliers and subcontractors. The term suppliers and subcontractors does not include equipment manufacturers or suppliers, code or software providers, third party telecommunications, bandwidth or Internet access providers, application providers, or any third party for which Provider is a reseller or sales agent. Under no circumstances shall Provider or its suppliers or subcontractors be liable for loss of profit, loss or inaccuracy of data, or indirect, special, incidental or consequential damages, even if Provider or its suppliers or subcontractors have been advised of their possibility. Customer agrees that Provider’s suppliers and subcontractors are intended third party beneficiaries of the provisions contained in this paragraph and shall be entitled to enforce the provisions of this paragraph in any action brought against them.
e. Customer further agrees that electronically stored data is highly sensitive and subject to unforeseen loss due to a variety of causes, that the proper operation of any computer system includes the making of regular backups, including any related installation or repair activity.
Customer and Provider both agree, at each parties own expense, to defend, indemnify, and hold harmless the other party, its affiliates, suppliers, subcontractors, and representatives from and against any and all third party claims or liabilities including, without limitation, reasonable attorneys’ fees, arising from or relating to the use of the Service by Customer or someone using the Customer’s account (whether authorized or unauthorized) or any violation of this Agreement or applicable law, including without limitation any claims relating to the goods or services provided through the Service, such as property damage claims, defamation claims, copyright claims, privacy claims, obscenity claims, etc. Customer further acknowledges and agrees that Provider takes no responsibility for the content on, or goods or services provided through, the Service.
27. CONFLICTS WITH OTHER AGREEEMENTS OR REQUIREMENTS
Notwithstanding any provision to the contrary in this Agreement or accompanying Price Quotation(s), in the case of services governed by other agreements, including, but not limited to, tariffs or price lists of other providers, or by federal and state rules and regulations, where there is conflict between the other agreement and/or rules and regulations and any provision in this Agreement or accompanying Price Quotations, and where required by law, such other agreements and/or rules and regulations shall prevail over this Agreement.
Customer may not assign any right, obligation or duty under this Agreement or accompanying Price Quotation(s), in whole or in part, or any other interest hereunder, except to an affiliate and/or a successor by merger or sale of all or substantially all of Customer’s assets, without the prior written consent of Provider, which consent shall be given by Provider in Provider’s sole discretion but shall not be unreasonably withheld. Any such proposed assignee of this Agreement must meet all Providers’ credit standards then in place. Provider may assign any right, obligation or duty, in whole or in part, or any other interest hereunder, to any of its affiliates and/or a successor by merger or sale of all or substantially all of Provider’s assets without permission from Customer, and will notify the Customer should an assignment take place
29. DISPUTE RESOLUTION
Any dispute or controversy arising out of or relating to this Agreement or any breach hereof shall be settled by arbitration before a single arbitrator to be held in New York, New York in accordance with the then applicable Commercial Rules of the American Arbitration Association (AAA) or any successor thereto. Any party to this Agreement may, however, seek injunctive relief related to such dispute or controversy from a court of competent jurisdiction. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s awarding any court having jurisdiction and the parties irrevocably consent to the jurisdiction of the United States District Court for the Southern District of New York, or the Supreme Court of the State of New York, New York County for this purpose. Although, in the first instance, each party shall pay its pro rata share of the AAA charges associated with such arbitration, the arbitrator shall award legal fees, costs and the reimbursement of the AAA charges to the prevailing party.
Independent Contractors. Each party hereto is acting as an independent contractor and not as an agent, partner, employer, employee, or joint venture partner of the other.
Force Majeure. Neither party shall be liable for any delay or failure to perform any obligation under this Agreement by reason of any circumstance or event outside of its reasonable control, including fires, accidents, acts of God, acts of government, strikes or labor difficulties, shortages of labor, fuel, power, raw materials or supplies, or any other cause beyond that party’s reasonable control.
Amendment. No amendment or modification of this Agreement shall be valid or binding upon the parties unless in writing and signed by each party.
Waiver. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.
Entire Agreement. This Agreement, including any and all associated Price Quotation(s) constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or Agreements, whether oral or written. Should any terms or conditions within this Agreement, Service Orders, Schedules, Service Supplements, Schedules of Charges, Service level Agreement, Price Quotations, or any amendment hereto be in conflict or inconsistent with one another, this Agreement shall control over any Service Orders, Schedules, and/or Service Supplements, Schedule of Charges and Price Quotations. Such amendment is considered in “full force” when it was signed by Customer.
Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity or enforceability of any or all of the remaining portions thereof.
Interpretation. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or entity may require. Unless specified to the contrary, all references to “day” or “days” shall mean calendar day or days.