Customer Service Agreement
This Customer Service Agreement (“Agreement”) is made between TieTechnology, LLC.
(“PROVIDER”), a Florida corporation, with operational offices located at 4532 W Kennedy, Blvd, Suite
182, Tampa, FL 33609 and (“CUSTOMER”) located on form the SERVICES INVOICE FORM with principles of business, main office address located on the SERVICE INVOICE FORM form. This Agreement provides the general terms and conditions applicable to CUSTOMER’s purchase of communications services (“Service”) from PROVIDER.
ARTICLE 1. ORDERS FOR AND DELIVERY OF SERVICE
1.1 Submission and Acceptance of Customer Order(s). CUSTOMER may submit requests for Service in a form designated by PROVIDER (“Customer Order”). The Customer Order shall contain the duration for which Service is ordered (“Service Term”) and pricing for Service. PROVIDER will notify CUSTOMER of acceptance (in writing or electronically) of the Customer Order and the date by which PROVIDER will install Service (the “Customer Commit Date”); renewal Customer Orders will be accepted by PROVIDER’s continuation of Service.
1.2 Credit Approval and Deposits. CUSTOMER will provide PROVIDER with credit information as requested. PROVIDER may require CUSTOMER to make a deposit as a condition of PROVIDER’s acceptance of any Customer Order. Deposits may but will not exceed 2 months’ estimated charges for Service and will be due upon PROVIDER’s written request.
1.3 Customer Premises. If access to non-PROVIDER facilities is required for the installation, maintenance or removal of PROVIDER equipment, PROVIDER shall first notify CUSTOMER that such access is required. If CUSTOMER agrees to provide such access, then CUSTOMER shall, at its expense, secure such right of access and shall arrange for the provision and maintenance of power and HVAC as needed for the proper operation of such equipment. If CUSTOMER is unable to obtain such access, then CUSTOMER may terminate the Service Order without further liability thereunder including payment to termination liabilities, fees, or charges.
1.4 Scheduled Maintenance. If scheduled maintenance requires Service interruption, PROVIDER will (i) provide CUSTOMER 7 days’ prior written notice, (ii) work with CUSTOMER to try to minimize Service interruptions and (iii) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. local time.
ARTICLE 2. BILLING AND PAYMENT
2.1 Commencement of Billing. PROVIDER will deliver written or electronic notice (a “Connection Notice”) to CUSTOMER upon installation of Service. Charges shall commence not earlier than on the Service Commencement Date set forth in the Service Order, regardless of whether CUSTOMER is prepared to accept delivery of Service.
2.2 Payment of Invoices and Disputes. Invoices are delivered monthly in advance and due within thirty (30) days of receipt of invoice. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less).
CUSTOMER agrees to accept delivery of invoices electronically via the Internet and agrees to remit payment via Automated Clearinghouse (“ACH”) or wire transfer to TieTechnology, LLC. in care of: JPMorgan Chase Bank 13998 Hillsborough Ave. Floor 1, Tampa, FL 33635 ABA# 267084131, Account#
736151270, or such other bank or account as PROVIDER may in writing direct CUSTOMER to remit payment.
2.3 Taxes and Fees. Except for taxes based on PROVIDER’s net income, personal property taxes, and employment taxes, CUSTOMER will be responsible for all taxes that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of Service (whether imposed on PROVIDER or any affiliate of PROVIDER). Charges for Service are exclusive of taxes. CUSTOMER may present PROVIDER a valid exemption certificate and PROVIDER will give effect thereto prospectively.
2.4 Regulatory and Legal Changes. If any change in applicable law, regulation, rule or order materially affects delivery of Service, the parties will negotiate appropriate changes to this Agreement. If the parties are unable to reach agreement within 30 days after PROVIDER’s delivery of written notice requesting renegotiation: (a) PROVIDER may pass any increased costs relating to delivery of Service through to CUSTOMER and (b) if PROVIDER does so, CUSTOMER may terminate the affected Service without termination liability by delivering written notice to PROVIDER within 30 days.
2.5 Cancellation and Termination Charges.
(A) CUSTOMER may cancel a Customer Order (or portion thereof) prior to delivery of the Connection Notice upon written notice to PROVIDER identifying the affected Customer Order and Service. If CUSTOMER does so, CUSTOMER shall pay PROVIDER a cancellation charge equal to the sum of: (i) 3 month’s monthly recurring charges for the cancelled Service; (ii) the non-recurring charges for the cancelled Service; and (iii) PROVIDER’s out of pocket costs (if any) incurred in constructing facilities necessary for Service delivery; provided, however, that the total of (i) through (iv) shall not exceed the total MRC payable by CUSTOMER under the Service Order and shall include all equipment provided to the CUSTOMER by PROVIDER.
(B) CUSTOMER may terminate Service after delivery of the Connection Notice upon 30 days’ written notice to PROVIDER identifying the terminated Service. If CUSTOMER does so, or if Service is terminated by PROVIDER as the result of an uncured default by CUSTOMER, or if Service is terminated by PROVIDER in accordance with Section 5.5 below, CUSTOMER shall pay PROVIDER a termination charge equal to the sum of: (i) all unpaid amounts for Service provided through the date of termination; (ii) 100% of the remaining monthly recurring charges through the end of the Service Term and the total amount of the cost of any equipment that had been leased to the customer; provided that the foregoing shall not apply for termination if PROVIDER is in Default here under.
2.6 Renewal. This agreement shall automatically auto renew 30 days prior to expiration of the initial term. Customer will have 30 days from this date to inform PROVIDER in writing their wish to cancel. The renewal term shall be based on the same terms as the initial term. Until terminated or cancelled pursuant to its terms. In the event that the customer informs PROVIDER in writing within the 30 day window, its intent not to Renew but PROVIDER will have the option to provide services under a month to month agreement at the currently advertised month to month rates.
ARTICLE 3. DEFAULT
3.1 Default. If (A) CUSTOMER fails to make any payment when due, or (B) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may: (i) terminate this Agreement and/or any Customer Order, in whole or in part, and/or (ii) subject to Section 4.1, pursue any remedies it may have at law or in equity.
ARTICLE 4. LIABILITIES AND SERVICE LEVELS
4.1 No Special Damages. Neither party shall be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of data, or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the performance or failure to perform under this Agreement or any Customer Order.
4.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN EXHIBIT F, PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE.
4.3 Service Levels. The “Service Level” commitments applicable to the Services are found in PROVIDER’s Service Schedules for each Service. If PROVIDER does not achieve a Service Level, a credit will be issued to CUSTOMER as set forth in the applicable Service Schedule upon CUSTOMER’s request. PROVIDER’s maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, CUSTOMER must contact PROVIDER Customer Service or deliver a written request (with sufficient detail necessary to identify the affected Service) within 60 days after the end of the month in which the credit was earned. In no event shall the total credits issued to CUSTOMER per month exceed the non-recurring and monthly recurring charges for the affected Service for that month. CUSTOMER’s sole remedies for any outages in Service are contained in the Service Levels applicable to the affected Service.
4.4 Service for Outages and Credits. For PROVIDERS Enterprise grade hosted voice services that include local and long distance services. Customer will receive a credit equal to 1/30th of the MRC for that month for every 4 BUSINESS HOURS for PROVIDER BASED OUTAGE, defined below. Only the services affected by the outage will be eligible for the credit. Credits for outages cannot exceed the MRCs for Service that was affected by a Service Outage in that month. In the event that the customer rents equipment, such equipment shall not be considered services for the purposes of service credits under this agreement.
ARTICLE 5. GENERAL TERMS
5.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”). In the event PROVIDER is unable to deliver Service as a result of a force majeure event, CUSTOMER shall not be obligated to pay PROVIDER for the affected Service for so long as PROVIDER is unable to deliver the affected Service. Force majeure events along with scheduled maintenance under section 1.4 shall be considered “Excused Outages.”
5.2 Assignment and Resale. CUSTOMER may not assign its rights or obligations under this Agreement or any Customer Order without the prior written consent of PROVIDER, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. CUSTOMER may resell the Service to third parties, provided that CUSTOMER shall indemnify, defend and hold PROVIDER harmless from any claims made against PROVIDER or its affiliates by such third parties or any other parties or entities obtaining service through such third parties. Nothing in this Agreement, express or implied, is intended to or shall confer upon any thirty party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.3 Affiliates. Service may be provided to CUSTOMER pursuant to this Agreement by an affiliate of PROVIDER, but PROVIDER shall remain responsible to CUSTOMER for the delivery and performance of the Service. CUSTOMER’s affiliates may purchase Service pursuant to this Agreement. CUSTOMER shall be jointly and severally liable for all claims and liabilities related to Service ordered by any CUSTOMER affiliate, and any default under this Agreement by any CUSTOMER affiliate shall also be a default by CUSTOMER.
5.4 Notices. All notices shall be in writing and sufficient and received if delivered in person, or when sent via facsimile, pre-paid overnight courier, electronic mail (if an e-mail address is provided below) or sent by U.S. Postal Service (or First Class International Post (as applicable)), addressed as follows:
IF TO PROVIDER: IF TO CUSTOMER:
TieTechnology, LLC SEE INVOICE FROM Cloud Services Division
4532 West Kennedy Blvd
Either party may change its notice address upon notice to the other party. All notices shall be deemed to have been given on (i) the date delivered if delivered personally, by facsimile or e-mail (one business day after delivery if delivered on a weekend or legal holiday), (ii) the business day after dispatch if sent by overnight courier, or (iii) the third business day after posting if sent by U.S. Postal Service (or other applicable postal delivery service).
5.5 Acceptable Use Policy. CUSTOMER’s use of Service shall comply with PROVIDER’s Acceptable Use Policy, as communicated in writing to CUSTOMER from time to time. PROVIDER may immediately terminate Service without prior notice for violation of such policies and etiquette (e.g. unsolicited advertising via broadcasted email spamming or use of an auto dialer). If PROVIDER is informed by government authorities of inappropriate or illegal use by CUSTOMER of Service or other networks accessed through Service, any government determination will be binding on the CUSTOMER, and PROVIDER may immediately suspend Service pending and if CUSTOMER fails to cure such use within five (5) days, terminate Service.
5.6 Marks and Publicity; Non-Disclosure. Neither party shall have the right to use the other party’s or its affiliates’ trademarks, service marks or trade names without the prior written consent of the other party. Neither party shall issue any press release nor issue public statement relating to this Agreement, except as may be required by law or agreed between the parties in writing. Any information or documentation disclosed between the parties during the performance of this Agreement (including this Agreement) shall be subject to the terms and conditions of the applicable non-disclosure agreement then in effect between the parties.
5.7 Governing Law; Amendment. This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its choice of law rules. This Agreement, including any Service Schedule(s) and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
5.8 Relationship of the Parties. The relationship between CUSTOMER and PROVIDER shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes.
5.9 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. Facsimile signatures shall be sufficient to bind the parties to this Agreement.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
CUSTOMER represents and warrants to PROVIDER as follows: (i) CUSTOMER is authorized to perform the obligations of CUSTOMER under this Agreement; (ii) By entering into this Agreement with PROVIDER, CUSTOMER shall not be in violation of any agreement it has with a third-party relating to the purchase of the Services; and (iii) CUSTOMER is a duly organized entity and qualified and authorized to do business in Illinois. PROVIDER represents and warrants to CUSTOMER as follows: (i) That PROVIDER and its affiliates are duly authorized to provide the Services in the States of Colorado and California; (ii) By entering into this Agreement with CUSTOMER, PROVIDER shall not be in violation of any agreement it has with a third-party relating to the provision of Services; and (iii) PROVIDER has all of the authorizations, licenses and rights required to provide Service to CUSTOMER under the terms and conditions of this Agreement.
Exhibit A – Business VOIP Service
This Exhibit A constitutes the agreement (“Agreement”) between PROVIDER and CUSTOMER of PROVIDER’s Business Voice over Internet Protocol (VOIP) communications services and any related products or services (“Service”).
The Agreement governs the Service and any devices (“Device” or “Equipment”), used in conjunction with the Service.
- Emergency Calling Service
(A) Non-Availability of Traditional 911 or E911 Dialing Service. CUSTOMER acknowledges and understands that the Service does NOT support traditional 911 access to emergency services. PROVIDER offers a limited Emergency Calling Service available only on PROVIDER Devices as described below, but CUSTOMER acknowledges and understands that such Emergency Calling Service dialing is different in a number of important ways from traditional 911 services, as described herein. PROVIDER Emergency Calling Service dialing is available only on PROVIDER-certified Devices or Equipment. CUSTOMER agrees to inform any employees, guests and other third persons who may be present at the physical location where CUSTOMER uses the Service as to the non-availability of traditional 911 or E911 dialing from PROVIDER Service and Device(s). If CUSTOMER activates PROVIDER Emergency Calling Service dialing, CUSTOMER agrees to inform any employees, guests and other third persons who may be present at the physical location where CUSTOMER uses the Service as to the important differences and limitations of PROVIDER Emergency Calling Service dialing as compared with traditional 911 or E911 dialing, as set forth in this Agreement.
(B) Description of Emergency Calling Service-Type Dialing Capabilities – Activation Required. PROVIDER does offer an Emergency Calling Service that is different in a number of important ways from traditional 911 services. When CUSTOMER dials 911, CUSTOMER call is routed from the PROVIDER network to the Public Safety Answering Point (PSAP) or local emergency service personnel using the address that CUSTOMER provided to PROVIDER. CUSTOMER acknowledges and understands that when CUSTOMER dials 911 from Equipment, CUSTOMER will be routed to the general or administrative telephone number for the PSAP or local emergency service provider, and will not necessarily be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. Additionally, some PSAP’s may from time to time refuse to accept calls from VoIP providers such as PROVIDER. As described herein, this Emergency Calling Service dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing.
(C) Service Outage
i. Power Outage – CUSTOMER acknowledges and understands that Emergency Calling Service dialing does not function without power. Should there be an interruption in the power supply, the Service and Emergency Calling Service dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment before using the Service or Emergency Calling Service dialing.
ii. Service Outage Due to Suspension of CUSTOMER’s Account – CUSTOMER acknowledges and understands that service outages due to suspension of CUSTOMER’s account as a result of billing issues will prevent ALL Service, including Emergency Calling Service dialing.
iii. Other Service Outages -CUSTOMER acknowledges and understands that if there is a service outage for ANY reason, such outage will prevent ALL Service, including Emergency Calling Service dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
iv. Limitation of Liability and Indemnification – CUSTOMER acknowledges and understands that PROVIDER’s liability is limited for any Service outage and/or inability to dial Emergency Calling Service from CUSTOMER’s line or to access emergency service personnel, as set forth in this document. CUSTOMER agrees to defend, indemnify, and hold harmless PROVIDER, 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 attorney’s 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 Emergency Calling Service 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.
(D) Failure to Designate the Correct Physical Address for Emergency Calling Service Dialing. The address which the CUSTOMER provided to PROVIDER is the address that is applied to CUSTOMER’s Service for Emergency Calling Service dialing. Should CUSTOMER need to change this address, CUSTOMER must contact PROVIDER Customer Service immediately to correct this address. It may take up to three business days to effectuate a change of address or update of an address. Failure to provide the current and correct physical address and location of Equipment will result in any Emergency Calling Service communication CUSTOMER may make being routed to the wrong local emergency service provider.
(E) Changing CUSTOMER’s Primary Phone Number. CUSTOMER acknowledges and understands that if CUSTOMER changes CUSTOMER’s primary phone number, CUSTOMER will not be able to change CUSTOMER’s Emergency Calling Service address for seventy-two (72) hours. During that time, any Emergency Calling Service calls that CUSTOMER may make will be routed using the address that was in PROVIDER’s records before CUSTOMER changed CUSTOMER’s phone number.
(F) Change of Physical Location of Equipment. CUSTOMER acknowledges and understands that Emergency Calling Service dialing does not function properly or may not function at all if CUSTOMER takes Equipment with CUSTOMER away from the address or physical location that CUSTOMER has designated.
(G) Requires Re-Activation if CUSTOMER Move. CUSTOMER acknowledges and understands that Emergency Calling Service dialing will not function properly nor at all if CUSTOMER moves or changes the physical location of Equipment to a different street address, unless and until CUSTOMER has successfully contacted PROVIDER Customer Service to correct CUSTOMER’s Emergency Calling Service address. Failure to provide the current and correct physical address and location of Equipment will result in any Emergency Calling Service dialing CUSTOMER may make being routed to the incorrect local emergency service provider.
(H) Possibility of Network Congestion and/or Reduced Speed for Routing Emergency Calling Service. CUSTOMER acknowledges and understands that there is a greater possibility of network congestion and/or reduced speed in the routing of an Emergency Calling Service communication made using Equipment as compared to traditional 911 dialing over traditional public telephone networks. CUSTOMER acknowledges and understands that Emergency Calling Service dialing from Equipment will be routed to the general or administrative telephone number for the local emergency service provider, and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing. CUSTOMER acknowledges and understands that there may be a greater possibility that the general or administrative telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, or not answered at all, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
(I) Automated Number Identification. It is not possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify CUSTOMER’s phone number when CUSTOMER dials 911 to access Emergency Calling Service dialing. PROVIDER’s system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they are not yet always technically capable of doing so. CUSTOMER acknowledges and understands that PSAP and emergency personnel may not be able to identify CUSTOMER’s phone number to return CUSTOMER’s call if the call is unable to be completed, is dropped or disconnected, or if CUSTOMER is unable to speak to tell them CUSTOMER’s phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
(J) Automated Location Identification. It is not possible to transmit identification of the address that CUSTOMER has listed to the Public Safety Answering Point (PSAP) and local emergency personnel for CUSTOMER’s area when CUSTOMER uses Emergency Calling Service dialing. CUSTOMER acknowledges and understands that CUSTOMER will need to state the nature of CUSTOMER’s emergency promptly and clearly, including CUSTOMER’s location, as PSAP personnel will NOT have this information. CUSTOMER acknowledges and understands that PSAP and emergency personnel will not be able to find CUSTOMER’s location if the call is unable to be completed, is dropped or disconnected, if CUSTOMER is unable to speak to tell them CUSTOMER’s location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
(K) Alternative Emergency Calling Service Arrangements. CUSTOMER acknowledges that PROVIDER does not offer primary line or lifeline services. CUSTOMER should always have an alternative means of accessing traditional E911 services.
(A) Business Use of Service and Device. CUSTOMER shall not resell or transfer the service or device to any other person for any purpose. CUSTOMER agrees that the Service does not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or Fax blasting. PROVIDER reserves the right to immediately terminate, modify or upgrade the Service, if PROVIDER determines, in its sole discretion, that CUSTOMER’s Service is being used for any of these.
(B) Notice of Rate Changes. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing (except during the term of a Minimum Commitment Contract) for the Service. Notice of revisions to the Agreement or pricing shall be posted on the TieTechnology Website (“the Website”) and deemed given and effective on the date posted to the Website.
If you do not agree to the revision(s), you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions
(C) Timing of Calls. Generally, timing of metered calls begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom PROVIDER must interconnect in order to terminate calls to foreign countries) designate a call as “answered” when the called party’s line rings or after a certain number of rings, and will charge PROVIDER for a completed call. In these situations, PROVIDER will charge for the call as if it were answered by the called party.
(D)Use of Service and Device outside the United States. If CUSTOMER removes the Device to a country other than the United States and uses the Service from there, CUSTOMER does so at CUSTOMER’s own risk, including the risk that such activity violates local laws in the country where CUSTOMER does so. CUSTOMER is liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to CUSTOMER.
(E) Loss of Service Due to Power Failure. The Service does not function without power. Should there be an interruption in the power supply; the Service will not function until power is restored. A power failure or disruption may require CUSTOMER to reset or reconfigure equipment before using the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including the Emergency Calling Service calling feature.
(F) Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software. The Service and Device and any firmware or software used to provide the Service or provided to CUSTOMER in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on PROVIDER’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of PROVIDER are and shall remain the exclusive property of PROVIDER and nothing in this Agreement shall grant CUSTOMER the right to license or to use such marks. CUSTOMER acknowledges that CUSTOMER is not given any license to use the firmware or software used to provide the Service or provided to CUSTOMER in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If CUSTOMER decides to use the Service through an interface device not provided by PROVIDER, which PROVIDER reserves the right to prohibit in particular cases or generally, CUSTOMER promises that CUSTOMER possesses all required rights, including software and/or firmware licenses, to use that interface device with the Service and CUSTOMER will indemnify and hold harmless PROVIDER against any and all liability arising out of CUSTOMER’s use of such interface device with the Service.
(G) Tampering with the Device. CUSTOMER agrees not to change the electronic serial number or equipment identifier of the device, or to perform a factory reset of the Device, without express permission from PROVIDER. PROVIDER reserves the right to terminate CUSTOMER’s Service should CUSTOMER tampers with the Device, leaving CUSTOMER responsible for the full charges to the end of the current term, including without limitation unbilled charges, plus any applicable disconnect fee, all of which immediately become due and payable.
(H) Theft of Service. CUSTOMER agrees to notify PROVIDER immediately, in writing, by electronic mail or by calling the PROVIDER customer support line, if the Device is stolen or if CUSTOMER become aware at any time that CUSTOMER’s Service is being stolen or used fraudulently. When CUSTOMER calls or writes, CUSTOMER must provide CUSTOMER’s account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of CUSTOMER’s Service and additional charges to CUSTOMER. CUSTOMER will be liable for all use of the Service using a Device stolen from CUSTOMER and any and all stolen Service or fraudulent use of the Service. Notwithstanding anything herein to the contrary, credits will not be issued for charges resulting from fraud that arises out of third parties hacking into CUSTOMER’s equipment or the internet. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of CUSTOMER’s internal/corporate procedures. PROVIDER will not issue credit for invoiced charges for fraudulent use resulting from CUSTOMER’s negligent or willful acts or those of an authorized user of CUSTOMER’s service.
(I) Number Transfer on Service Termination. PROVIDER may, solely at PROVIDER’s discretion, release the telephone number that was ported to PROVIDER by CUSTOMER and used in connection with CUSTOMER’s Service provisioned by PROVIDER to CUSTOMER’s new service provider, if such new service provider is able to accept such number, upon CUSTOMER’s termination of the Service, and provided (i) CUSTOMER’s account has been terminated; (ii) CUS TOMER’s accountant is current including payment for all charges and applicable disconnect fees; and (iii) CUSTOMER requests the transfer upon terminating CUSTOMER’s account. CUSTOMER will not be able to port away the telephone number if Customer cancels within thirty days of the Activation Date.
(J) Service Distinctions. CUSTOMER acknowledges and understands that the Service is not a telephone service. Important distinctions exist between telephone service and the enhanced Service offering provided by PROVIDER. The Service is subject to different regulatory treatment than phone service. This treatment may limit or otherwise affect CUSTOMER’s rights of redress before regulatory agencies.
(K) Collect Call and Operator Services. PROVIDER does not offer collect call or operator services via this Service.
(L) International Services
i. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the end-to-end international service or facilities they provide, certain limitations or restrictions that may limit CUSTOMER’s ability use the Services. CUSTOMER must conform to any limitations or restrictions imposed by the foreign carriers or agencies.
ii. Foreign Carrier Acts or Omissions.
a. When other S. or foreign carriers and foreign telecommunications administrations use facilities to establish connections to points not reached by PROVIDER’s network, PROVIDER is not liable for acts or omissions of other carriers or foreign telecommunications administrations.
b. International calls are priced on the basis of the country and city codes dialed by CUSTOMER. When the facilities of other U.S. or foreign carriers are used in establishing connections to points not reached by PROVIDER’s network, PROVIDER is not liable for refunds or damages if those calls do not terminate in the country, city or area codes associated with the called number.
(M) Surcharge. In addition to surcharges that may be found in the applicable calling plan, PROVIDER may adjust its rates and charges or impose additional rates and charges to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs (“Governmental Charges”).
Restrictions on the Use of Service
(A) PROVIDER offers its services subject to availability of facilities, limitations of service offerings, and the provisions of this Agreement.
(B) Services provided by PROVIDER under the Agreement will not be used: (1) for any unlawful purpose; (2) for making telephone calls that use automatic dialing devices and terminate into electronic information services, pay-per-call services, or other domestic or international audiotext services; or (3) for international call-back offerings using uncompleted call signaling to any country, when that country has prohibited such an offering by statute or regulatory decision.
(C) PROVIDER may (1) deny, for any lawful reason, CUSTOMER’s request for service, or (2) limit or allocate the facilities available to or used by any Service, if necessary, to manage its network in an efficient manner; meet reasonable service expectations; furnish service to existing and future customers based on forecasted customer requirements; or for any other lawful reason.
(D) PROVIDER may, without notice (consistent with governing laws or regulations), block traffic to or from specific countries, country codes, cities, city codes, local telephone exchanges (“NXX exchanges”), individual telephone stations, groups or ranges of individual telephone stations, or calls using certain customer authorization codes, whenever PROVIDER deems it necessary to take such action to prevent (1) the unlawful use of service; (2) nonpayment for service; (3) the use of service in violation of this Agreement; or (4) network blockage or the degradation of service furnished to CUSTOMER or other customers.
Exhibit B – Terrestrial Broadband Internet Service IF Provider Supplies
This Exhibit B constitutes the Service Level Agreement (SLA) that provides CUSTOMER with certain rights and remedies regarding the performance of PROVIDER Network. “PROVIDER Network” mean the PROVIDER owned and operated Internet Protocol (IP) routing infrastructure consisting of selected PROVIDER points of presence (POPs) and the connections between them. PROVIDER Network does not include CUSTOMER premises equipment or any telco access facilities connecting CUSTOMER’s premises to PROVIDER Network.
1. Service Description
(A) PROVIDER will provide and maintain dedicated internet access (DIA) service over a terrestrial line (“Service”) to the CUSTOMER for the Term designated on each Service Request Form, as provided by PROVIDER.
(B) PROVIDER’s point of termination will be at a network termination point (“NT”), consistent with PROVIDER’s policies.
(C) CUSTOMER assumes responsibility for notifying PROVIDER of its choice for (i) Service beyond the NT; (ii) arranging installation of wiring and the interface to CUSTOMER premises equipment (“CPE”); and, (iii) maintenance of all wire and terminating equipment beyond the NT. CUSTOMER’s wiring and interface shall be compatible with PROVIDER’s Service.
(D) Each Service Request will become a part of this Agreement as each Service Request is received from CUSTOMER. The Term of each individual circuit shall be stated on each Service Request.
(A) DS-1 Terrestrial Line – Service will be provided at a speed of 1.544 Mbps, with the Service exceeding 98.75% error free seconds averaged over any consecutive twenty-four (24) hour period, and will be maintained at a minimum of 99.925% availability per year.
(B) DS-3 Terrestrial Line – Service will be provided at a speed of 44.736 Mbps, with the Service exceeding 99.85% error free seconds averaged over any consecutive twenty-four (24) hour period, and will be maintained at a minimum of 99.975% availability per thirty (30) day interval.
3. Committed Information Rate
(A) PROVIDER guarantees that the full Committed Information Rate (CIR) subscribed by CUSTOMER is provided.
(B) CIR is measured from the NT to PROVIDER Network. If the subscribed CIR is not achieved, PROVIDER will have 5 days to restore the throughput to the subscribed CIR. If PROVIDER is unable to meet the CIR to the subscribed level, CUSTOMER remediation will include the following options: 1) cancellation of Service without penalty, or 2) reduction of CIR without penalty. Cancellation of Service will require a written notification from CUSTOMER.
4. Network Latency On-Network (within the PROVIDER Network)
(A) PROVIDER guarantees that the Average Monthly Latency for round-trip on-network transmissions will be 50 milliseconds or less.
(B) Latency is calculated by averaging measurements between the NT and peering points for off- network connectivity. If the Average Monthly latency exceeds the PROVIDER SLA, upon CUSTOMER’s request, PROVIDER will issue a credit to CUSTOMER equivalent to one day’s worth of the monthly service fee.
5. Packet Loss
(A) PROVIDER’s goal is to keep Average Packet Loss on the PROVIDER Network to less than 1%. “Average Packet Loss,” with respect to a given month, means the average percentage of IP packets transmitted on the PROVIDER Network during such month that are not successfully delivered, as measured by PROVIDER.
(B) If Average Packet Loss exceeds the PROVIDER SLA, upon CUSTOMER’s request, PROVIDER will issue a credit to CUSTOMER equivalent to one day’s worth of the monthly service fee.
6. Credit for Interruption of Service—–
(A) A credit shall be applied when Service is interrupted (“Network Outage”) for any period lasting
four (4) or more consecutive hours.
CUSTOMER shall not receive any credits under this SLA in connection with any failure or deficiency of the PROVIDER Network caused by or associated with:
(A) circumstances beyond PROVIDER’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the SLA;
(B) Failure of access circuits to the PROVIDER Network, unless such failure is caused solely by
(C) General Telco failure; (D) Scheduled maintenance;
(E) DNS issues outside the direct control of PROVIDER;
(F) Outage or error of any PROVIDER measurement system;
(G) CUSTOMER’s acts or omissions, including without limitation, any negligence, willful misconduct, or use of the PROVIDER Network or PROVIDER Services in breach of PROVIDER’s Terms and Conditions and Acceptable Use Policy, by CUSTOMER or others authorized by CUSTOMER.
8. Service Response
In the event of a Network Outage (as defined above) requiring On-site service, PROVIDER will make commercially reasonable efforts to respond to the outage within 4 hours of CUSTOMER’s reporting the Network Outage in accordance with the CUSTOMER Escalation List.
9. Credit Request and Payment Procedures
Requests for credits must be made via email to the PROVIDER Network Operations Center at support@TieTechnology.com. Each request in connection with a Network Outage must be received by PROVIDER within five days of the Network Outage. Each request in connection with Network Latency or Average Packet Loss in a calendar month must be received by PROVIDER within five days after the end of such month. Notwithstanding anything in this SLA to the contrary, the total amount credited to a CUSTOMER in connection with Network Outages, Network Latency and Average Packet Loss in any calendar month will not exceed the monthly service fee. Each validly requested credit will be applied to CUSTOMER’s invoice within 2 billing cycles after PROVIDER’s receipt of such request. Credits are exclusive of any applicable taxes charged to CUSTOMER or collected by PROVIDER.
PROVIDER reserves the right to change or modify this SLA to benefit the CUSTOMER, and will post changes to a web site designated by PROVIDER and made available to CUSTOMER. Except as set forth in this SLA, PROVIDER makes no claims regarding the availability or performance of the PROVIDER Network.