The term of this services agreement is for the term as set forth in your signed service agreement and commences upon signature of Customer Installation Acceptance or as defined at time of finance approval. Customer Acceptance signature cannot be unreasonably withheld or delayed. The term ends on the expiration of the number of months in the initial term after the services agreement commencement date. At expiration of term this services agreement shall continue for successive one (1) year periods, including all conditions and pricing set forth in this agreement, until terminated by either party with sixty (60) days’ notice. Service Provider will make best effort to notify Customer of expiration of services agreement prior to expiration. Either party may terminate this services agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least sixty (60) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach. Should Customer terminate or requests cancellation of the contract prior to install, the Customer will incur a termination fee equal to six (6) times the monthly recurring cost for losses sustained by the Service Provider for pre-install provisioning and configuration of the system.
Service Provider will provide all necessary equipment, excluding handsets, hardware and software to deploy an IP PBX solution to Customer. Service Provider will own and manage all aspects of the solution including hardware and software, excluding handsets and gateways, required to deliver the service features and functions. If Customer contracts Service Provider to deliver broadband services, please see EXHIBIT C for applicable details.
Service Provider will be responsible for handling all service requests from Customer during standard business hours as described below:
Standard Support Hours:
Monday – Friday from 9am until 6pm
Weekend and After-Hours:
Monday – Friday 6pm until 9am
Saturday – Sunday all day
Service Provider will process and manage service requests from Customer in the timeframe designated in Service Level Agreement listed in Exhibit A.
3. CUSTOMER REQUIREMENTS
Customer is required to perform the following for the installation and maintenance of the solution.
A. Cabling Requirements
1. Wiring is one continuous run from switch to end point
2. RJ-45 Connector for switch port end of cable and port for phone end
B. Server Requirements
• Operating power: 110 VAC, 50-60 Hz*
• Power source: Power needs to be provided through a UPS (see UPS specifications above*)
a. Operating temperature: 50-85 degrees Fahrenheit
b. Operating humidity: 10-85% (non-condensing)
a. Appropriate ventilated space to install and maintain all hardware
• Adequate space for installation and maintenance of all cable connections
• 2Us of standard depth rack space, 1U for V.I.C.C.I and 1U for Smart Edge Controller
1. Customer will provide Service Provider with a Two Public WAN IPs dedicated to our onsite node for each connection.
D. Access Requirements
1. Remote access to equipment at all times via ssh or VPN access
2. Physical access to equipment during normal business hours
• If Customer cannot provide access during normal business hours additional fees may apply for alternate arrangements outside of normal business hours
• Service Provider not responsible for any outages if unable to gain access to equipment during time of outage
If at the time of installation, the wiring or other facilities are not in acceptable condition; Customer shall be responsible for a day of installation services for each return visit.
4. MONTHLY SERVICE AND MAINTENANCE FEES
Customer shall pay the monthly service and maintenance fees herein set forth above as well as any additional charges incurred as described in Cost Structure, the first of which shall be due on the commencement date of this services agreement, and subsequent payments shall be due each month thereafter on a billing date established by Service Provider. Monthly service and maintenance fees shall be due whether or not Customer has received any notice that such payments are due. Monthly service and maintenance fees are invoiced as follows: per station, per location and any taxes and/or fees that may be applicable. Service Provider may utilize a third-party billing agent to bill and collect monthly service fees.
5. LOCATION AND MAINTENANCE
At Customer’s own risk, Customer shall use or permit the use of the equipment solely at the location(s) specified in this services agreement, or if none is specified, at Customer’s billing address set forth above and such equipment shall not be moved without Service Provider’s prior written consent. Customer shall not use the equipment unlawfully and shall not alter the equipment without Service Provider’s prior written consent. Service Provider shall not be liable for loss of profit or other consequential damages resulting from the theft, destruction, or disrepair of the equipment, and there shall be no abatement of services agreement payments on account of any such theft, destruction, or disrepair.
6. SECURITY DEPOSIT
Any security deposit made pursuant to the service agreement may be applied by Service Provider to cure any default or breach by Customer of any indebtedness to Service Provider. Upon any such application, Customer shall promptly restore the security deposit to the full original amount.
7. CREDIT INFORMATION
Customer certifies that the application, statements, trade references, and financial reports submitted by Customer to Service Provider are material inducements to the granting of this services agreement and that any material misrepresentation shall constitute a breach under this services agreement.
8. TAXES & REGULATORY SURCHARGES:
Customer shall reimburse Service Provider for (or pay directly if instructed by Service Provider) all charges and taxes (local, state, and federal) including, but shall not be limited to, PICC (Presubscribed Interexchange Carrier Charges), Carrier Cost Recovery, LNP (Local Number Portability) that may now or hereafter be imposed or levied on the services, sale or use of the equipment. Service Provider assumes no liability and makes no representation as to the treatment of this services agreement by any federal, state, or local taxation authority. See Pricing Addendum for details.
9. EMERGENCY 911 SERVICES.
The FCC requires that service provider, like all VoIP service providers, inform its customers of differences between the 911 and e911 access capabilities available with provider services as compared to the 911 and e911 access capability available with traditional wireline non-VoIP telephone service. Disruptions to customer’s broadband service will prevent calls to 911 and e911 from completing. Installing a failover broadband connection to the public internet will reduce the likelihood of a service interruption. If customer’s VoIP 911/e911 service is terminated or suspended for any reason, 911 access will not be available. Due to the architecture of service provide VoIP network, there is a greater possibility of network congestion and/or reduced speed in the routing of a 911 call utilizing VoIP equipment as compared to 911 dialing over traditional switched telephone networks. Customer must provide service provider with the correct physical service address of the location where the VoIP service will be used. If the customer does not provide fusion with the correct service address information, or if customer moves its VoIP access device (including ip phone or IAD) to another location without updating service location information, calls to 911 will route to emergency personnel who may not be able to assist or may cause delays on receiving emergency services.
Without Service Provider’s prior written consent, Customer shall not (a) assign, transfer, pledge, or otherwise dispose of the equipment or any interest therein or (b) sublet or lend the equipment or permit it to be used by anyone other than Customer or Customer’s employees. Service Provider may assign this services agreement or grant a subsidiary interest in the equipment in whole or part with reasonable notice to Customer, and Service Provider’s assignee or secured party may then assign this services agreement with reasonable notice to Customer. Any such assignment or grant by Service Provider shall not release or discharge Service Provider from its duties and obligations under this services agreement. Each such assignee or secured party shall have all the rights, but none of the obligations, of Service Provider under this services agreement. Customer shall recognize such assignments and shall not assert against the assignees or the secured parties any defense counterclaim or offset Customer may have against Service Provider. In spite of any such assignment, Service Provider warrants that Customer shall quietly enjoy use of the equipment, subject to the terms and conditions of this services agreement. Subject to the foregoing, this services agreement inures to the benefit of and is binding on the respective heirs, legatees, personal representatives, successors, and assigns of Service Provider and Customer.
11. PROPRIETARY RIGHTS
Service Provider retains all right, title and interest in and to any and all of its software, software development tools, know how, methodologies, processes, technologies or algorithms used in providing the services which are based upon trade secrets or proprietary information of Service Provider or otherwise owned or licensed by Service Provider, whether or not incorporated into any services. Service Provider shall own and retain all right, title and interest in and to any Service Provider interfaces.
12. TITLE; PERSONAL PROPERTY
The equipment, hardware and software are, and shall at all times remain, property of Service Provider, and Customer shall have no right, title, or interest except as expressly set forth in this services agreement.
All information relating to Customer that is known to be confidential or proprietary, or which is clearly marked as such, shall be held in confidence by Service Provider and shall not be disclosed or used by Service Provider except to the extent that such disclosure or use is necessary for the performance of Service Provider’s duties and obligations under this services agreement. All information relating to Service Provider that is known to be confidential or proprietary, or which is clearly marked as such, shall be held in confidence by Customer and shall not be disclosed or used by Customer except to the extent that such disclosure or use is necessary for the performance of Customer's duties and obligations under this services agreement. These obligations of confidentiality shall extend for a period of twelve (12) months after the termination of this services agreement but shall not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
14. EMPLOYEE SOLICITATION
During the period of this services agreement and for twelve (12) months thereafter, neither party shall directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of the other. The terms "former employee" and "former subcontractor" shall include only those employees or subcontractors of either party who were employed or utilized by that party during the term of this services agreement.
Customer shall indemnify and hold Service Provider harmless against any claims by third parties, including all costs, expenses and attorneys' fees incurred by Service Provider therein, arising out of or in conjunction with Customer's performance under or breach of this services agreement. In the event that Customer fails to properly maintain the equipment, software or surrounding area of the equipment or if the equipment or software is used in any manner inconsistent with the specified use of the equipment and software, Customer shall indemnify Service Provider against, and hold Service Provider harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including reasonable attorneys’ fees arising out of, connected with, or resulting from Customer’s failure to properly maintain the equipment, software or surrounding area of the equipment or Customer’s improper use of the equipment or software subject to this services agreement, including, but not limited to the manufacture, selection, delivery, use, operation, or return of such equipment or software.
16. LIMITATION OF LIABILITY
In no event shall Service Provider be liable for any loss of profit or revenue by Customer, or for any other consequential, incidental, indirect or economic damages incurred or suffered by Customer arising as a result of or related to services provided by Service Provider, whether in contract, tort, or otherwise, even if Customer has been advised of the possibility of such loss or damages. Customer further agrees that the total liability of Service Provider for all claims of any kind arising as a result of or related to this services agreement, or to any act or omission of Service Provider, whether in contract, tort or otherwise, shall not exceed an amount equal to the amount actually paid by Customer to Service Provider for service by Service Provider during the twelve (12) month period preceding the date the claim arises. Service Provider agrees that the total liability of Customer for all claims of any kind arising as a result of or related to this services agreement, or to any act or omission of Customer, whether in contract, tort or otherwise, shall not exceed an amount equal to the amount actually paid by Customer to Service Provider for service by Service Provider during the twelve (12) month period preceding the date the claim arises.
17. FORCE MAJEURE
Neither party will be held responsible for any delay or failure in performance of any part of this services agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control including but not limited to war, strike, riot or “act of God.” This does not excuse negligence or other malfeasance of either party as where non-performance is caused by the usual and natural consequences of external forces or where the intervening circumstances are specifically contemplated.
Customer acknowledges that no system or software can be made completely stable or secure, and that Service Provider cannot guarantee the stability, safety or security of Customer’s network or data. Service Provider warrants that the services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards and the time frame, if any, set forth in the description of services herein. Customer is solely responsible for implementing and monitoring appropriate operational and security procedures, and for making appropriate backup copies of all data. This warranty is exclusive and is in lieu of all other warranties, whether express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose and any oral or written representations, proposals or statements made on or prior to the effective date of this agreement.
19. LOSS OR DAMAGE
Customer assumes and shall bear the entire risk of loss, theft, destruction, or damage of or to any part of the equipment (“loss or damage”) from any cause whatsoever and no such loss shall release the Customer of its obligation under this services agreement in the event of loss or damage. Customer, at the sole option of Service Provider, will (a) at Customer’s expense, repair the equipment to the satisfaction of Service Provider; or (b) at Customer’s expense, and to the satisfaction of Service Provider, replace the equipment with similar or like equipment in good condition and repair and of comparable value, with clear title thereto in Service Provider; or (c) make payment to Service Provider the total of the amounts specified below:
A. All monthly service and maintenance fees past due or currently owed to Service Provider under this services agreement, including unpaid taxes; and
B. All future monthly services and maintenance fees that would accrue over the remaining term of this services agreement; and
C. All cost associated with rebuilding and reinstalling the equipment, hardware, software and Customer services configuration.
20. SERVICE CHARGE AND/OR INTEREST
If any monthly service and maintenance fees are not paid within fifteen (15) days after its due date, Customer shall pay to Service Provider a service charge equivalent to three (3) cents per each dollar overdue together with any expenses incurred in collecting the late payment. Minimum late fee $50. Customer shall also pay interest on any such late payment from the due date until payment at a rate up to the maximum rate allowed by law.
21. DEFAULT, SUSPENSION OF SERVICE AND TERMINATION
Customer shall be in breach or default under this services agreement if Customer shall:
A. Fail to pay any monthly service and maintenance fees, the payments on any other services agreement or indebtedness of Customer to Service Provider arising independently of this services agreement, or other amount required in this services agreement within ninety (45) days after the monthly service and maintenance fees become due and payable;
B. Fail to perform or observe according to its terms any material covenant contained in this services agreement, or any other instrument or document executed in connection with this services agreement;
C. Become insolvent (however defined), cease business as a going concern, make an assignment for the benefit of creditors, or cause a petition for receiver or in bankruptcy to be filed by or against Customer (including a petition for reorganization or an arrangement); or
D. Commit or fail to commit any act that materially jeopardizes the rights of Service Provider or causes Service Provider to deem itself materially insecure as to its rights.
E. If Customer is in default under this services agreement, Service Provider, with or without notice to Customer, shall have the right to exercise concurrently or separately, and without any election of remedies to be deemed made the following remedies:
Terminate this services agreement;
Elect that the monthly service and maintenance fees due be accelerated and the entire remaining amount of services agreement be due immediately including additional cost of Service Provider taking back and returning all equipment and hardware per Section 22.
22. CONTINUITY OF SERVICES
Each party acknowledges that the timely and complete performance of its obligations pursuant to this services agreement is critical to the business and operations of the other party. Accordingly, in the event of a dispute, and where reasonable under the circumstances, each party shall continue to so perform its obligations under this services agreement in good faith during the resolution of such dispute unless and until this services agreement is terminated in accordance with its terms; it being understood, however, that nothing herein shall diminish or relieve either party of its rights or obligations under this services agreement.
On expiration of this services agreement term or on demand by Service Provider pursuant to Section 23, Customer, at Customer’s expense, shall return the equipment in good repair, ordinary wear and tear excepted, to such place or on board such carrier, packed for shipping, as Service Provider may specify. All equipment must be returned in its original packaging.
If Customer chooses to have Service Provider take back all equipment and hardware from Customer location(s) Customer agrees to pay all reasonable charges including current hourly rate plus any reasonable travel expenses associated with such activity. All such charges will be applied against security deposit prior to return of such funds to Customer.
If Customer returns any equipment or hardware damaged beyond reasonably expected wear and tear Customer will be charged appropriate repair costs.
24. NOTICES AND DEMANDS
Service of all notices under this agreement shall be sent by United States registered or certified mail or any other such registered or certified mail carrier as Service Provider chooses addressed to the party involved at its respective address set forth above or to such other address as the parties may hereafter substitute by written notice. Both parties are required to keep a primary point of contact and updated address information throughout the term of this services agreement.
Any dispute arising under this services agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this services agreement will be governed by and construed and interpreted in accordance with the laws of the State of New York. The arbitration will be held in New York. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
26. UNLIMITED LOCAL/LD & TOLL-FREE MINUTES
A. Acceptable Use: Service is provided to Customer as a “normal” business user. Customer agrees this agreement does not confer the right to use the Service for auto-dialing, continuous or extensive call forwarding, inbound or outbound telemarketing, or fax broadcasting. sipIQ reserves the right to terminate Service with ten (10) days’ notice or to invoice Customer at the applicable per minute rate (see www.sipIQ.com/domesticrates ) for all inbound and outbound calls in excess of 500 minutes per month per extension or DID if sipIQ determines, in its sole discretion, that the Service is being used in said fashion. Unlimited minutes excludes general conference bridge lines and will be charged at a rate referred to in Pricing Addendum. All local and long-distance calls to Hawaii, Canada, Puerto Rico and the 48 contiguous states are included as part of the unlimited services. Customer may elect to enable International calls outside of the above listed countries and will be subject to International rates. See Exhibit B for details.
B. Toll Free numbers and rates are not included and will be charged to the Customer as set forth at www.sipiq.com/domesticrates.
27. PRIVACY AND NOTICE – CALL RECORDING
Please note that certain states, where multi- party laws govern, require notice and consent to all parties. If you are calling into a two-party state, you are required to inform the other party that the call is being recorded prior to the conversation. The Customer accepts terms under the state in which third party notification of call recording may apply. Please visit https//:www.sipIQ.com/recordingandprivacy for detailed information on privacy Laws and Notice requirements for electronic recording of telephone conversations.
This instrument constitutes the entire agreement between Service Provider and Customer and is irrevocable for its term and for the aggregate term reserved above, and it shall not be amended, altered, or changed except by a written agreement signed by the parties. Customer shall provide Service Provider with such corporate resolutions, opinions of counsel, financial statements, and other documents as Service Provider shall request from time to time. Any failure of Service Provider to require strict performance by Customer or any waiver by Service Provider of any provision of this services agreement shall not be construed as a consent or waiver of any other breach of the same or any other provision. If any portion of this services agreement is deemed to be invalid, it shall not affect the rest of this agreement. Headings or titles to the paragraphs of this services agreement are solely for the convenience of the parties and not an aid to the interpretation of this agreement.
Customer certifies that all credit and financial information submitted is true and correct and authorizes Service Provider or any prospective creditor to investigate Customer’s credit worthiness and disclose information and investigation results to each other. If Service Provider accepts by executing this services agreement below, Customer agrees to services agreement from Service Provider and Service Provider agrees to services agreement to Customer on all of the terms and conditions of this services agreement. In witness whereof, each party has caused this services agreement to be executed on the date indicated below.
EXHIBIT A - SERVICE LEVEL AGREEMENT
|Priority Type||Priority 1||Priority 2||Priority 3|
|Response Time (in hours)||1||8||24-48|