TELEPHONE SERVICES AGREEMENT
THIS TELEPHONE SERVICES AGREEMENT (the “Agreement”), is between Tele-Data Solutions LLC (“Tele-Data”) and the Customer identified on Schedule 1 (“Customer”), and is effective as of the date of the Customer’s acceptance of this Agreement (the “Effective Date”).
A. Tele-Data provides a wide range of telephone-related services, software, hardware, and equipment.
B. Customer wants to obtain the services, products and equipment set forth in the proposal attached as Schedule 1 and incorporated by reference (the “Proposal”) from Tele-Data.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree as follows:
1. Services and Equipment.
1.1. Services. Customer hereby engages Tele-Data to provide, and Tele-Data hereby agrees to provide to the Customer, the services and Covered System described in the Proposal (the “Services”), subject to the terms and conditions set forth in this Agreement.
1.2. Equipment. Tele-Data shall provide the hardware, software, and equipment bought, leased, or licensed by Customer, as set forth in the Proposal (the “Covered System”). Customer acknowledges that any requests that additional equipment, hardware, or software be added to the Covered System may require Tele-Data to modify the Services or provide Additional Services on a one-time or ongoing basis. Customer acknowledges that the Covered System may be comprised of new and/or manufacturer refurbished components. If some or all of the Covered System is leased, Customer must enter into the lease agreement attached to this Agreement as Annex A-3.
1.3. Additional Services. If Customer requests that Tele-Data provide additional services or equipment beyond the Services (“Additional Services”), Customer shall pay for such Additional Services on a time and materials basis, plus parts, using then-current labor rates and then-current retail parts and materials pricing. Any Services provided by Tele-Data outside of Business Hours may be deemed by Tele-Data to be Additional Services, which will be invoiced at Tele-Data’s then-current overtime labor rates.
1.4. Modifications. Any Customer requests for modifications to the Services or Additional Services must be confirmed in writing by Tele-Data and Customer prior to Tele-Data’s provision of same.
2.1. Tele-Data Obligations.
2.1.1. System Protection Services. Tele-Data shall keep the Covered System in operating condition through provision of routine maintenance and support services (“System Protection Services”) during the term of this Agreement as set forth in the Proposal.
2.1.2. Service Hours. During Business Hours, Tele-Data shall provide the necessary remote System Protection Services required to keep the Customer’s Covered System in operating condition. “Business Hours” means Tele-Data’s normal business hours, from 8:30 am to 5:00 pm EST, Monday through Friday, excluding holidays. Tele-Data shall provide System Protection Services consistent with, and subject to, the service level agreement terms described in Annex A-1
2.1.3. Scope of Maintenance. Tele-Data shall provide the System Protection Services only in response to issues resulting from normal operation of the Covered System within the scope of its intended purpose. This limitation on System Protection Services is intended to extend to any and all unforeseen or extraordinary circumstances that do not arise from the normal operation of the Covered System within the scope of its intended purpose. Customer acknowledges that the System Protection Services only cover routine system maintenance and that the Agreement is not an appropriate substitute for a business continuity plan or other disaster recovery and business interruption planning. Customer shall be solely responsible for procuring and maintaining such business interruption or other applicable insurance policies as it deems appropriate.
2.1.4. Force Majeure. Tele-Data shall not be required to perform the any Services, including the System Protection Services, if such performance is prevented by a Force Majeure Event. “Force Majeure Event” means any of the following: (1) a disaster, (2) a criminal act or other act of malfeasance, (3) negligence by any party other than Tele-Data, (4) an act of terrorism, (5) force majeure or act of God (including fire, flood, earthquake, storm, lightning, hurricane, or other natural cause outside the control of the parties), (6) government sanction, (7) blockage or embargo, (8) labor dispute, strike, lockout or interruption, (9) utility failure (including electricity, telephone, or water), or (10) third-party service provider (including internet service provider, hosting or server provider, or data center) failure of any kind.
2.1.5. Parts. Tele-Data may use new, used or refurbished materials, parts, or equipment in connection with any Services performed in connection with this Agreement.
2.1.6. On-Site Services. Tele-Data shall provide on-site System Protection Services to Customer only if the Customer has requested the on-site services enhancement to the System Protection Services, pursuant to the terms set forth in the Proposal and on Annex A-1.
2.1.7. Warranties to Covered System. Tele-Data shall provide a pass-through to Customer of any manufacturer or similar warranty covering the Covered System to the maximum extent permitted.
2.2. Customer Obligations.
2.2.1. Access and Cooperation. Customer shall provide Tele-Data with adequate access to Customer’s premises, personnel and Customer Equipment as is reasonably required for performance of Tele-Data’s obligations under this Agreement.
2.2.2. Customer Equipment. Customer shall be responsible for all costs and expenses of procuring, obtaining, installing, and maintaining all other necessary computer hardware, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, application licenses and other materials (the “Customer Equipment”). Customer acknowledges that any changes to the Customer Equipment, including changes to any network configuration, hardware, or client-side software and any upgrades or modifications, may disrupt, limit, or disable use, performance, or functionality of the Covered System by Customer. Any changes to the Services that are required as a result of changes to Customer Equipment shall be deemed to be Additional Services.
2.2.3. Exclusive Maintenance Provider. Customer acknowledges and agrees that Tele-Data is the exclusive maintenance provider for the Covered System. Customer shall not permit any other person to perform work of any kind on the Covered System without Tele-Data’s prior written consent. If Customer permits maintenance work of any kind on the Covered System by an unauthorized person, then, notwithstanding anything to the contrary set forth in this Agreement, Tele-Data may terminate this Agreement for breach without providing Customer the opportunity to cure such breach. If the Agreement is terminated by Tele-Data for breach under this provision, Customer hereby agrees to pay to Tele-Data, as liquidated damages, (1) fifty percent (50%) of the total amount of the total Fees that would otherwise have been payable during the term of the Agreement; and (2) one hundred percent (100%) of any outstanding amounts owed to Tele-Data in connection with the sale or lease of the Covered System within five (5) days following the effective date of termination.
2.2.4. Customer Information. Customer represents that any factual statements, pricing assumptions, and equipment assumptions regarding Customer in the Proposal and in Annex B (the “Customer Information”) are true as of the Effective Date. Customer acknowledges that any incomplete, false, or incorrect Customer Information may necessitate modifications to the Services described in the Proposal. If the Customer Information is incomplete, false, or incorrect, then Customer shall pay Tele-Data the costs for Additional Services required as a result to implement the provisions of the Proposal.
2.2.5. Interconnection of Covered System Prohibited. Customer shall not connect the Covered System to any Customer Equipment or other equipment except as specified in the Proposal or as authorized in writing by Tele-Data in advance of any such connection. If Customer permits an unauthorized interconnection of the Covered System, then, notwithstanding anything to the contrary set forth in this Agreement, Tele-Data may terminate this Agreement for breach without providing Customer the opportunity to cure such breach. If the Agreement is terminated by Tele-Data under this provision, Customer shall pay, as liquidated damages, (1) fifty percent (50%) of the total amount of the remaining installment payments for services under this Agreement and (2) one hundred percent (100%) of any remaining payments for sale or lease relating to the Covered System to Tele-Data within five (5) days following the effective date of termination. If the Agreement is terminated by Tele-Data for breach under this provision, Customer hereby agrees to pay to Tele-Data, as liquidated damages, (1) fifty percent (50%) of the total amount of the total Fees that would otherwise have been payable during the term of the Agreement; and (2) one hundred percent (100%) of any outstanding amounts owed to Tele-Data in connection with the sale or lease of the Covered System within five (5) days following the effective date of termination.
2.3. Mutual Obligations.
2.3.1. Installation and Testing of Covered System. Following Tele-Data’s notice to Customer that the Covered System is ready for testing, Customer shall test all aspects of the Covered System to determine compliance with the agreed-upon specifications (the “Testing Procedure”). The Testing Procedure shall be completed within ten (10) business days, or such other period set forth in the Proposal (the “Acceptance Period”). Upon or before the conclusion of the Acceptance Period, Customer shall notify Tele-Data in writing of any material non-conformance in the Covered System, including a list of defects together with a reasonable explanation of, and the steps to reproduce, the defects or non-conformance. If Customer fails to deliver any such notice during the Acceptance Period, then Customer shall be deemed to have agreed that it has reviewed, tested and inspected the Covered System, and determined to Customer’s satisfaction that the Covered System contains the core functionality and operability as required by the specifications set forth in the Proposal. In the event of a notice from Customer during the Acceptance Period of any material nonconformity, Tele-Data shall use reasonable efforts to address and correct the non-conformance that it is able to identify and reproduce. Upon correction of the nonconformities, the parties shall once again perform the Testing Procedure, and the foregoing process shall be repeated until the reconfigured Covered System is accepted by Customer. Any further changes following conclusion of the Acceptance Period shall be deemed to be Additional Services.
3. Fees and Payment
3.1. Fees. Customer shall pay Tele-Data for the Services and Additional Services, as applicable, as further set forth in the Proposal or otherwise in writing between the parties (the “Fees”). For the avoidance of doubt, the parties shall agree in advance on specific Fees to be charged for Additional Services, including procurement by Tele-Data of additional equipment and third party services, installation charges, or other items on Customer’s behalf to the extent such charges are not described in this Agreement or the Proposal.
3.2. Payment. Customer shall make payments to Tele-Data in the amounts and at the times described in the Proposal. All Customer payments will be non-refundable, and Customer shall not make any set-off or deduction against such payments for any reason.
3.2.1. Non-Recurring Fees. Unless otherwise set forth in the applicable Proposal, Customer shall pay: (i) fifty percent (50%) of all non-recurring Fees described in the Proposal within three (3) business days following the Effective Date of this Agreement. Customer shall pay all remaining non-recurring Fees within three (3) business days following the conclusion of the Acceptance Period.
3.2.2. Recurring Fees. Customer shall pay all recurring Fees as described in the Proposal; provided, however, that unless otherwise specified in the Proposal, no recurring Fees will be due and payable until conclusion of the Acceptance Period.
3.2.3. Fees for Leased Covered System. If Customer leases a portion of the Covered System, then Customer shall make lease payments as described in the applicable lease agreement.
3.3. Invoices. Tele-Data shall invoice Customer in accordance with the terms of the Proposal or on a monthly basis if no invoicing schedule is set forth in the Proposal. Customer shall pay all invoices within thirty (30) days of the date of the invoice. Tele-Data may suspend the Services immediately if Customer is more than five (5) days past due on any Fees. If Customer fails to pay any Fees when due, then in addition to any other remedies Tele-Data may have under this Agreement: (i) Tele-Data may assess interest at the rate of one and one half percent (1½%) per month on all outstanding amounts until paid in full; and (ii) Tele-Data shall be entitled to recover all costs of collection, including reasonable attorneys’ fees and costs of suit.
3.4. Taxes. The charges and fees under this Agreement are exclusive of any national, state, municipal, or other governmental excise, sales, value-added and occupational taxes all of which, if applicable, shall be paid by Customer.
3.5. Shipping. If shipping is required for materials, parts, or equipment, Tele-Data will ship by UPS unless otherwise requested by Customer. Tele-Data shall add applicable freight charges to Customer’s invoices.
3.6. Billing Disputes. Customer must submit all bona fide disputes or requests for billing adjustments in writing at least ten (10) days before the due date of the payment giving rise to the dispute is due with a reasonable explanation of the factual basis of the dispute. Customer shall nevertheless pay any undisputed amounts on a timely basis, and Tele-Data shall credit Customer’s account as appropriate.
3.7. Transfer of Title. Upon the payment by Customer of all amounts owed to Tele-Data for the purchase of equipment, hardware, and fully paid, royalty-free software licenses (the “Purchased Equipment”), then all right, title, and interest in the Purchased Equipment will automatically pass to Customer.
4. Term and Termination.
4.1. Term. This Agreement shall be effective as of the Effective Date and shall continue for a period of three (3) years from the conclusion of the Acceptance Period (the “Initial Term”).
4.2. Renewal. This Agreement will automatically renew i for consecutive additional periods of three (3) years (a “Renewal Term,” and together with the Initial Term, the “Term”) unless (1) the Agreement has been terminated in accordance with its terms or (2) a party sends written notice of non-renewal to the other party at least sixty (60) days before the end of the Term.
4.3. Discrete Services. Non-renewal of a discrete Service will not be deemed to be a termination of the Agreement or a termination of any other discrete Service. If Customer has terminated a service and wants to reinstate that service, Customer shall pay Tele-Data a reinstatement fee equal to the applicable Fees that would have been paid during the termination period.
4.4. Termination. This Agreement may be terminated by a party upon written notice to the other party following the occurrence of a Default that has not been cured within the relevant cure period. The effective date of the termination will be the date notice of termination is given; however, the terminating party is entitled to specify in the notice a later effective date of termination. Termination of this Agreement shall not be deemed to terminate any other agreement to which Customer and Tele-Data are parties unless the notice of termination expressly states accordingly and such termination is permissible under the terms of such other agreement.
4.5. Default. Either party may terminate this Agreement for a Default which remains uncured following the applicable cure period. In the event of a Default by Customer, Tele-Data may (1) elect to keep the Agreement in effect, suspend the provision of Services, and invoice Customer for the full amount of recurring Fees in effect before the suspension, or (2) terminate the Agreement. “Default” means any of the following:
4.5.1. A party commits a material breach of its representations, warranties or obligations under this Agreement and fails to cure such breach within thirty (30) days (or, in the case of non-payment by Customer, five (5) days) of notice of the breach by the other party. If, however, the breaching party has proposed a reasonable course of action to cure the breach and is acting in good faith to cure but has not cured the breach by the 30th day, the parties may extend such period by written agreement to permit the breach to be cured after the 30th day if the party in breach continues to act in good faith to cure.
4.5.2. A distress, execution, sequestration or other process is levied or enforced upon or sued out against a material part of a party’s property that is not discharged within thirty (30) days.
4.5.3. A party ceases wholly or substantially to carry on its business, other than for the purpose of a move, renovations, or repairs, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
4.5.4. A liquidator, receiver, administrator, examiner, trustee or similar officer is appointed over a party or over all or substantially all of its assets.
4.5.5. An application or petition for bankruptcy, corporate re-organization, composition, administration, examination, arrangement is filed, and is not discharged within thirty (30) days, or a party applies for or consents to the appointment of a receiver, administrator, examiner or similar officer of it or of all or a material part of its assets, rights or revenues.
4.5.6. A Force Majeure Event occurs and is not resolved within sixty (60) days.
4.6. Effect of Termination. All amounts due and outstanding and all other amounts that are due and payable through the date of termination will become immediately due and payable upon termination or non-renewal of this Agreement. Customer shall pay all such amounts within five (5) days after receipt of invoice thereof from Tele-Data. For a notice of termination by Customer to be effective, Customer must pay such invoice in full within such five (5) day period. Termination of this Agreement will not relieve Customer of any obligation to pay any Fees or other charges incurred through the date of termination. If Tele-Data terminates this Agreement as a result of Customer’s breach or Default as permitted by this Agreement, Customer shall pay Tele-Data, as liquidated damages, (1) one hundred percent (100%) of the annualized recurring fees for the current year of the Term, plus (2) fifty percent (50%) of the annualized recurring fees for the remainder of the Term following the current year, plus (3) one hundred percent (100%) of any remaining amounts owed related to the purchase by Customer of any portion of the Covered System. If Customer leased the Covered System, then in addition to the foregoing, upon termination of this Agreement, Customer shall be required to return all leased components of the Covered System to Tele-Data, in the same condition as when provided to Customer, reasonable wear and tear excepted. In the event Customer fails to return any leased components of the Covered System, or returns same damaged, then Customer shall be liable to Tele-Data for the replacement cost of, or the cost of repairs to (as applicable) the Covered System.
4.7. Cancellation During Installation. If Customer terminates this Agreement other than for Default or breach before installation of the Covered System is complete, within ten (10) days following the effective termination date, Customer shall (1) pay at Tele-Data’s then-prevailing rates for Services already rendered; (2) reimburse payments made by Tele-Data to third parties; (3) pay one hundred percent (100%) of any remaining amounts owed related to the purchase by Customer of any portion of the Covered System; and (4) reimburse unpaid expenses for reasonable, non-cancellable obligations incurred or committed to be incurred by Tele-Data to a third party as of the date of termination. In addition to the foregoing, Tele-Data will retain all claims, causes of action, defenses, and other rights that it may have under this Agreement, at law, or in equity.
5. Confidential Information.
5.1. Duty. During the term of this Agreement and for a period of three (3) years thereafter, each party receiving or gaining access to Confidential Information of the other party shall keep not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party, which consent shall not be unreasonably withheld.
5.2. Confidential Information. “Confidential Information” means all information and other materials received by a party from the other party in connection with the performance or negotiation of this Agreement or designated in writing as “Confidential,” including information related to the party’s business, sales and marketing information, intellectual property, customer and supplier information, communications, and records. “Confidential Information” does not include information which: (1) is known to the receiving party before disclosure; (2) becomes generally known to the public or a third party without restriction on disclosure; (3) becomes known by the receiving party from a third party without restriction on disclosure; and (4) is independently developed by the receiving party without reference to the Confidential Information.
5.3. Equitable Relief. If the Receiving Party breaches any of its obligations with respect to confidentiality and unauthorized use of the Confidential Information, the Disclosing Party will be entitled to seek equitable relief to protect its interests, including injunctive relief as well as damages.
5.4. Duty to Destroy. Upon termination of this Agreement, each party shall, except in the case of a pending dispute, destroy the Confidential Information of the other party, unless the disclosing party has requested in writing that such Confidential Information be returned at its sole expense.
6. Warranties; Limitation of Liability.
6.1. Limited Warranty. Tele-Data warrants that, subject to the terms and conditions of this Agreement, it shall perform all Services in a workmanlike manner and in so doing shall (1) use individuals of suitable training and skills consistent with industry standards reasonably applicable to such Services; and (2) comply with all applicable laws and regulations applicable to the provision of the Services.
6.1.1. EXCEPT AS PROVIDED IN SECTION 6.1, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES ARE AT ITS OWN RISK. TELE-DATA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW, OR OTHERWISE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. TELE-DATA’S WARRANTIES SET FORTH IN THIS AGREEMENT EXTEND ONLY TO CUSTOMER AND NOT TO ANY THIRD-PARTY.
6.1.2. Carrier Support. Customer acknowledges that a network service provider is necessary to operate the Covered System for its intended purpose. Customer further acknowledges that network issues are outside the control of Tele-Data. Tele-Data has certain relationships with some network service providers that allow Tele-Data, from time to time, to extend information regarding network service plan offers from network service providers to its customers. Tele-Data disclaims any warranty responsibility for any aspect of the network services provided by any network service provider. Customer acknowledges that network service issues are the sole responsibility of the network service provider, and Customer indemnifies Tele-Data from any loss or liability arising out of network service issues.
6.2. No Warranty on Equipment. Other than with respect to the Services, Customer acknowledges that Tele-Data provides no independent warranty on the Covered System. If Customer purchases equipment from Tele-Data, then Tele-Data shall provide a pass-through of any manufacturer or similar warranty to Customer to the maximum extent permitted. Tele-Data shall provide a pass-through of any other warranties for software, equipment, or third-party services to the maximum extent permitted.
6.3. Limitation of Liability; Limitation of Damages.
6.3.1. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING FOR DAMAGES ARISING OUT OF LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ENTERPRISE OR LOSS OF OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CONSEQUENCES OF ERRORS, DOWNTIME, WHETHER SCHEDULED OR UNSCHEDULED, OR FAULTY TRANSMISSION.
6.3.2. CUSTOMER ACKNOWLEDGES THAT TELE-DATA HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND DAMAGES AND THE DISCLAIMERS OF WARRANTIES IN THIS AGREEMENT, AND THAT THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
6.3.3. In no event will Tele-Data’s liability to Customer exceed the amounts paid by Customer to Tele-Data from the date of this Agreement through the date Customer’s claim arose.
6.3.4. If Tele-Data is unable to furnish Services requested by Customer under the Agreement on commercially reasonable terms for reasons outside the control of Tele-Data, Tele-Data shall be entitled to return all payments received from Customer during the three-month period before the date when Customer communicated its need for services to Tele-Data and terminate this Agreement, and Tele-Data will have no further liability or obligation pursuant to the Agreement.
7. Indemnification; Remedies.
7.1. Duty to Indemnify. Each party shall, at its sole cost and expense, defend, indemnify and hold the other party harmless against any damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to and third-party claims, actions, or proceedings in connection with such indemnifying party’s (1) breach or default of this Agreement; (2) violation of law; or (3) negligent acts or omissions or willful misconduct. An indemnifying party’s obligation will not apply to the extent that the claim arose due to unauthorized acts or misconduct of the party seeking indemnification or a third party acting on such party’s behalf.
7.2. Obligations of Indemnified Party. The party seeking indemnity shall (a) give the indemnifying party prompt written notice of a claim, (b) permit the indemnifying party to defend or settle the claim, (c) not make any admission of liability in respect of all or any part of the claim or enter into any agreement or negotiation to settle or dispose of the claim, (d) provide all reasonable assistance to the indemnifying party in the course of defending or settling the claim.
8. Additional Terms.
8.1. Publicity. Customer hereby grants Tele-Data the right to include references to Customer in Tele-Data’s marketing materials and publications and on Tele-Data’s websites.
8.2. Solicitation/Hiring of Tele-Data Employee. Customer acknowledges that Tele-Data’s employees have been trained by Tele-Data to have the skills necessary to provide the services set forth herein, that such skills represent an investment of time and resources by Tele-Data, and if Customer hires any employee of Tele-Data, Tele-Data will incur a financial loss, both from the loss of the investment in the employee and the costs that will be incurred to hire and train a replacement. Accordingly, Customer agrees that in the event it hires any employee of Tele-Data, it shall be required to pay to Tele-Data, within thirty (30) days of hiring such employee, a hiring fee equal to twenty-five thousand dollars ($25,000). Customer agrees that the hiring fee is fair and reasonable and is appropriate to compensate Tele-Data for the loss of its employee.
8.3. Assignment. Customer shall not assign this Agreement or any rights or obligations under this Agreement without the prior written approval of Tele-Data, which approval shall not be unreasonably withheld. Any assignment made in violation this Section will be null and void.
8.4. Choice of Law and Venue. The Agreement is governed by the laws of the state of New Jersey, without regard to its principles of choice of law. Any dispute arising out of this Agreement or the provision of services and equipment by Tele-Data to Customer must be brought in the Superior Court of New Jersey sitting in Union County, New Jersey, or the federal courts sitting in Essex County, New Jersey.
8.5. Notices. Except as otherwise set forth in this Agreement, any notice required to be given under this Agreement must be (1) in writing; (2) delivered (A) personally, (B) by nationally recognized overnight courier service, or (C) by registered or certified mail; and (3) addressed to the other party at the mailing address indicated below. Notice will be deemed to have been given (i) when received in the case of notices delivered personally or by courier, or (ii) three (3) business days after mailing in the case of delivery by registered or certified mail.
If to Tele-Data:
Tele-Data Solutions LLC
1767 Route 22 West
Union, New Jersey 07083
Attn: Damon Finaldi
If to Customer:
As set forth in the Proposal
8.6. Additional Provisions. This Agreement is the final and binding arrangement between the parties concerning its subject matter. Each party represents that it has not relied on any promise, agreement, representation, warranty, or statement, whether oral or written, that is not expressly set forth in this Agreement. This Agreement may be modified only by a written instrument executed by both parties. No waiver of any default under this Agreement will apply to any subsequent default. No waiver will be construed as a waiver of any other provision of this Agreement. Nothing in this Agreement is intended to confer any rights on any person other than the parties. If any provision of this Agreement is held to be unenforceable, the remainder of this Agreement will be interpreted without such unenforceable provision so as to give effect, insofar as is possible, to the original intent of the parties.
Tele-Cloud Services Agreement
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. EMERGENCY SERVICES – 911 DIALING
1.2: Registration of Physical Location Required. For each phone number that you use for the Service, you must register with Tele Cloud, LLC the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near the old address. You shall register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the “911″ registration link on your Tele Cloud web account dashboard features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.
1.3: Confirmation of Activation Required. You acknowledge that your 911 Dialing feature will not be activated for any phone line that you are using with the Service until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.
1.4: How Emergency Personnel are Contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number during the emergency call to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
1.5: Service Outages:
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to using the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your Tele Cloud Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.
1.6: Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account until you successfully register your location of use for each changed, newly added, or newly ported phone number.
1.7: Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion or reduced speed in the routing of a 911 Dialing call made using the Service as compared to traditional 911 dialing over traditional public telephone networks.
1.8: Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, and not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.
1.9: No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.
1.10: Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility if such third-party data used to route calls is incorrect or yields an erroneous result. You shall not hold Tele Cloud or its officers or employees liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness, or willful misconduct. You shall defend, indemnify, and hold harmless Tele Cloud, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including reasonable attorney fees) by, or on behalf of, you or any third party relating to the absence, failure, or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, or the inability of any user of the Service to use 911 Dialing or access emergency service personnel.
1.11: Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
2.3: Use of Service and Tele Cloud Provided Device. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. If you have purchased an unlimited calling plan, you are required to use the Service only in the conduct of your business and otherwise, and in all respects, reasonably, consistent with the nature of your business. We are entitled to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of these or similar activities.
2.4: Use of Service Only. For Service-only customers, you are responsible for supplying, operating and supporting the Customer Equipment for use with the Service. In addition, any customer-supplied equipment must be pre-approved by Tele Cloud in writing. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We are entitled to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of these or similar activities.
2.5: Prohibited Uses.
(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We are entitled to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we are entitled to forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to those authorities. In addition, Tele Cloud is entitled to provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property, and in the case where failure to disclose the information may lead to imminent harm to a customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We are entitled to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of these prohibited ways. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of these prohibited ways, we are entitled to forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Tele Cloud is entitled to provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property, and in the case where failure to disclose the information may lead to imminent harm to a customer or others.
2.6: Use of Service and Device by Customers Outside the United States. Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to terminate your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device outside of the United States or Canada.
2.7: Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.
2.8: Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. We are entitled to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
2.9: Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
2.11: Number Transfer on Service Termination. Upon the termination of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:
· such new service provider is able to accept such number;
· your account has been properly terminated;
· your account is completely current, including payment for all charges and applicable termination fees; and
· you request the transfer upon terminating your account.
2.12: Service Distinctions. The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
2.15: No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to use a reverse directory to look up your address.
2.16: Incompatibility with Other Services.
(a) Elevator, Fire, Alarm and Security Systems (“Security Systems”). The Service may not be compatible with Security systems. You may be required to maintain a telephone connection through your local exchange carrier to use any Security Systems monitoring functions for any Security System installed. You are responsible for contacting the company that provides the Security System to test the compatibility of any such systems with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
3. CHARGES; PAYMENTS; TAXES; TERMINATION
3.1: Billing. When the service is activated, you must provide us with a valid email address and a credit or debit card number from a card issuer that we accept. We are entitled to stop accepting credit or debit cards from one or more issuers at any time. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is canceled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including:
· activation fees;
· monthly Service fees;
· international usage charges;
· tariffs, excise fees, taxes, telecommunications related fees/charges, and the like
· advanced feature charges;
· equipment purchases;
· termination fees; and
· shipping and handling charges.
The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We are entitled to bill at more frequent intervals if the amount you owe to us at any time exceeds $250. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website.
3.2: Billing Disputes. You must notify us in writing within seven days after receiving your credit or debit card statement if you dispute any Tele Cloud charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:
Customer Care Billing Department
1767 Route 22W, Union NJ 07083
3.3: Payment and Collection.
(a) Payment. Your subscription to the Service authorizes us to charge your credit or debit card or charge any accounts you have previously authorized. This authorization will remain valid until thirty (30) days after we receive written notice from you terminating our authority to charge your credit or debit card or account, whereupon we will charge your credit or debit card or account for all amounts due upon termination and terminate the Service. We are entitled to terminate your Service at any time in our sole and absolute discretion in case of any non-payment of account charges.
3.6: Termination Fee. Upon any termination of the Service other than due to our breach, you will be obligated to pay us the balance of the charges for the remainder of the then current term.
3.7: Payphone Charges. If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.
3.8: Charges for Directory Calls (411). We will charge you $1.50 for each call made to Tele Cloud directory assistance.
3.9: Charges for Conference Bridge Calls. We will charge you per minute for each caller who calls into your conference bride. Your Conference Bridge per minute usage fee will be the lower of (i) 3.9 cents per minute, or (ii) the per minute Conference Bridge usage fee determined in your Service Activation Form or online order form. The per minute usage fee will be calculated based on all participants on the conference bridge, including on-network and off-network participants.
4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
4.1: Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
· an act or omission of an underlying carrier, service provider, vendor or other third party;
· equipment, network or facility failure;
· equipment, network or facility upgrade or modification;
· force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
· equipment, network or facility shortage;
· equipment or facility relocation;
· service, equipment, network or facility failure caused by the loss of power to you;
· outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
· any act or omission by you or any person using the Service or Device provided to you; or
· any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.
4.2: Disclaimer of Liability for Damages. IN NO EVENT WILL TELE CLOUD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
4.3: Indemnification and Survival.
(a) Indemnification. You shall defend, indemnify, and hold harmless Tele Cloud, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.
4.4: No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, AND DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER TELE CLOUD NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TELE CLOUD’S OR ITS SERVICE PROVIDERS’ OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TELE CLOUD OR TELE CLOUD’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
4.5: Device Warranties.
(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.
(c) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS CUSTOMERS.
4.8: Recording Conversations. Tele Cloud provides a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is solely responsible for complying with the local laws in the relevant jurisdiction when using this feature.
6. FUTURE CHANGES TO THIS AGREEMENT
The Tele Cloud Service uses, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Tele Cloud is not liable or responsible for any acts or omissions of third-parties with respect to the privacy of the Tele Cloud Service. Tele Cloud’s Privacy Notice is available at www.tele-datasolutions.com/privacy.
Last updated: 6/2/16