TERMS AND CONDITIONS
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is made this day of , 20 (the “Effective Date”) by and between Alteva, Inc. (d/b/a Alteva), a New York Corporation having its principal place of business at 401 Market Street, Phila-delphia, Pennsylvania 19106 (“Alteva”) and , a corporation, having its principal place of business at
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Definitions. The following definitions apply to this Agreement:
1.1. “Account” means the account established by Customer for the use of the Service and Equipment.
1.2. “Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. “Customer,” “you” or “your” means the firm, corporation, or other entity that utilizes Alteva’s Service and Equipment, and that is responsible for the payment of charges under, and for compliance with, this Agreement.
1.4. “Customer Equipment” refers to Equipment that Customer acquires from a source other than Alteva and is used in conjunction with the Service.
1.5. “Direct Inward Dialing,” “DID” or “Phone Number” refers to a Service feature that allows callers from the PSTN to directly reach a specific network telephone number or User of the Service.
1.6. “E911 Disclosure” means the provisions set forth in Section ¬¬¬2.5 stating Alteva’s policies regarding the availability and limitations of E911 Service, as those provisions may be amended from time to time by Alteva in its sole discretion. In the event of any conflict or inconsistency between the E911 Disclosure provisions set forth in Exhibit A and the E911 Disclosure on the Website, the provisions set forth on the Website shall apply and govern this Agreement.
1.7. “Equipment” means equipment or wiring at Customer’s location(s) that is directly provided and/or maintained by Alteva and used in conjunction with the Services.
1.8. “Internet Protocol” or “IP” refers to a standard protocol designed for use in interconnected systems of packet-switched computer communication networks.
1.9. “Location” means the physical location or locations from where Customer is utilizing the Services.
1.10. “Network” means a communications network comprised of a system of computers, transmission channels and related resources, that are interconnected to exchange information. A Network may be comparatively small, in which case it can be a “Local Area Network” (“LAN”), or relatively large, in which case it can be a “Wide Area Network” (“WAN”). By way of example, a LAN may be confined to a single building, while a WAN may cover an entire country. The communications channels in the Network may be temporary or permanent.
1.11. “Public Switched Telephone Network,” “PSTN” and “Traditional Telephone Services” refer to the traditional circuit switched local telephone network that connects telephone users with each other for the purpose of communications. PSTN may also include local wireless networks. PSTN communications use circuit-switched telephony characterized by a dedicated channel (or circuit) between two points for the duration of the call. These telephony systems are based on copper wires carrying analog voice data over the dedicated circuits.
1.12. “Services” refers to any services provided to Customer by Alteva, including, without limitation, voice (including domestic, international, toll free and audio conferencing), data, electronic mail, instant messaging, presence, electronic facsimile, data backup and storage, and all other types of communications services offered or provided by Alteva to Customer.
1.13. “Service Activation Date” means the date that Alteva determines that Customer is able to utilize the Services.
1.14. “User” means any person or entity that obtains or uses the Services and/or Equipment, regardless of whether such person or entity is authorized by Customer.
1.15. “Voice over Internet Protocol” or “VoIP” refers to a technology that enables a User to originate and terminate telephone calls by sending voice data packets using the internet rather than by PSTN.
1.16. “Website” means Alteva’s website identified by the domain name www.alteva.com, along with any content set forth therein, as updated from time to time by Alteva in its sole discretion.
2. Terms and Conditions.
2.1. Services Provided.
2.1.1. Service Orders. Alteva agrees to provide, and Customer agrees to accept and pay for, the Services as may be requested by Customer and accepted and approved by Alteva in accordance with (i) this Agreement and (ii) the Service Orders (as defined below). The Services shall be detailed in service orders that are executed by both Customer and Alteva (the “Service Orders”). Service Orders that are not executed by both parties shall be null and void and of no effect. Service Orders submitted by the Customer shall be on the forms for such Services provided by Alteva. All Service Orders are subject to the terms and conditions of this Agreement. Initial Service Orders agreed to by the parties are attached to this Agreement.
2.1.2. Change Orders. Any change to the Services shall be reflected in one or more change orders (“Change Orders”). Change Orders must be executed by both parties to be effective, which may be done via electronic mail. Customer shall submit any requested changes to Alteva and reference this Agreement. If Customer adds any Service(s), then the amount of Customer’s Monthly Recurring Charges (as defined
below) shall increase as set forth in the Change Order and the term for any such additional Service(s) shall run coterminous to the Initial Term and/or any Renewal Term. If the Customer adds any Service(s) not specified on any prior Service Order or Change Order, the parties shall execute a new Change Order. In the event of an inconsistency among the terms in this Agreement and any Service Order or Change Order, the terms of this Agreement shall control.
2.2. Renewal Terms. During a Renewal Term (as defined below), Customer shall pay for the Services and Maintenance at Alteva’s prevailing rates in effect on the first day of the Renewal Term or the rates agreed to in a renewal Service Order.
2.3. Permitted Use of Services and Equipment. Customer is responsible for all use of the Service and Equipment associated with the Account. Customer accepts full responsibility and liability for such use. The Service and Equipment provided under this Agreement may be used for any lawful purpose for which they are technically suited. Customer agrees not to utilize the Service or Equipment for any unlawful purpose.
Customer shall not use Services for transmitting or receiving any communication or material of any kind when the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any
applicable local, state, national, or international law, (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (iii) would violate U. S. export laws concerning the transmission of technical data and other regulated materials via the Service. Alteva, in its sole discretion, may terminate this Agreement immediately and without advance notice if Customer violates any of the above restrictions, leaving Customer responsible for the all charges as set forth in Section 3.
2.4. Fraud. Customer agrees to notify Alteva within one (1) business day of discovery if Customer becomes aware of any fraudulent or unauthorized use of its Account, Services or Equipment. Alteva shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s Account, the Services or Equipment and the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
2.5. 911 Service and Limitations. Customer is advised to read this Section 2.5 carefully before using the Services. This Section explains the operation and important limitations of VoIP enhanced 911 emergency calls.
2.5.1. Limitations of E911 Service When Using VoIP Service. By using the Services and Equipment, Customer acknowledges the limitations of enhanced 911 service (“E911 Service”) as set forth in this Section 2.5 (collectively, the “E911 Limitations”). Customer agrees and acknowledges that while some Services offer access to E911 Service, some Services may not. Customer is advised to thoroughly understand the Services and the options available. By signing this Agreement, Customer acknowledges that it has received the information regarding the E911 Limitations, understands and agrees to the E911 Limitations and assumes the risks associated with the E911 Limitations. Alteva may disclose to the FCC that Customer has acknowledged and accepted the E911 Limitations by virtue of Customer having signed this Agreement. If Customer subscribes to E911 Service from Alteva, Customer shall be subject to a provision fee and a monthly E911 service charge as set forth in the Service Order. Such fees and charges shall be in addition to other applicable charges set forth in the Service Order.
2.5.2. Non-Availability of Traditional 911 or E911 Service. Customer acknowledges and agrees that the Services do not support traditional 911 service (“Traditional 911”). Customer further acknowledges and agrees that emergency dialing is not automatic, that Customer must separately take affirmative steps, as described in this Section, to activate such emergency dialing capabilities and that such emergency dialing is different in a number of significant ways from Traditional 911. Customer agrees to and shall inform all employees, staff, Users and other third- persons who may be present at Customer’s Location of the possible non-availability of Traditional 911 and the Limitations.
2.5.3. Customer Activation Required for Emergency Dialing Capabilities; Limitation of Liability.
18.104.22.168. Alteva offers the E911 Service in the United States (but may not offer the E911 Service in all areas of the United States) that is different in a number of important ways from Traditional 911. Customer acknowledges and agrees that E911 Service is not automatically included in the Services. Customer must affirmatively and successfully activate the E911 Service by following the instructions provided by Alteva, and by completing and signing a separate form authorizing Alteva to activate the E911 Service and include E911 Service in the scope of the Services at a Location. Customer acknowledge and agrees that Customer cannot dial 911 via the Services unless and until Customer receives from Alteva written confirmation (which may be electronic) that E911 Service has been activated for a specific Location. Upon Customer’s receipt of written notice that E911 Service has been successfully activated, Customer may dial 911 as needed. When Customer dials 911, the 911 call will be routed from the Network to the Public Safety Answering Point (“PSAP”) or local emergency service personnel designated for the physical address Customer provided to Alteva as of the Service Activation Date. Customer acknowledges and agrees that 911 calls made via the E911 Service may be routed to the general telephone number for the PSAP or local emergency service provider, and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using Traditional 911.
22.214.171.124. Alteva relies on Customer and other third-parties to provide current street address information underlying the routing of 911 calls via the E911 Service and, accordingly, Alteva disclaims any and all liability or responsibility in the event that any such information or routing is incorrect. As described herein, the E911 Service currently is not the same as Traditional 911 and does not necessarily include all of the
capabilities of Traditional 911. Neither Alteva nor Alteva’s officers, directors, employees, agents, suppliers, contractors or vendors (collectively, “Indemnified Parties”) shall be held liable for any claim, cause of action, damage, liability or loss (collectively, “Claim”), and Customer hereby waives any and all such Claims arising from or relating to emergency dialing unless such Claim results directly from Alteva’s gross negligence or intentional misconduct. Customer shall indemnify and hold harmless the Indemnified Parties from any Claim arising out of or related to the misrouting of or the inability to make emergency calls, including without limitation Customer’s failure to follow correct activation procedures for emergency calling or Customer supplying Alteva any inaccurate, outdated or incorrect information in connection therewith.
2.5.4. Service Outage
126.96.36.199. Power Failure or Disruption. Customer acknowledges and agrees that emergency dialing will not function in the event of a power failure or disruption. If there is an interruption in the power supply, a power surge or a power failure, the Services and emergency dialing will not function until power is restored. Customer acknowledges and agrees that a power failure, power surge or power disruption may require Customer to reset or reconfigure Equipment prior to using the Services or being able to make emergency calls.
188.8.131.52. Service Suspension or Termination. Customer acknowledges and agrees that an outage, suspension or termination of the Services
will prevent all Services, including emergency calls.
184.108.40.206. Service Outage due to Account Suspension. Customer acknowledges and agrees that Services outages due to Alteva’s suspension of the Services due to billing issues, including billed amounts being delinquent or unpaid, will prevent all Services, including emergency calls.
220.127.116.11. Other Service Outages. Customer acknowledges and agrees that if there is a Services outage for any reason, such outage will prevent all Services from working, including emergency calls. Such outage may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
18.104.22.168. E911 Limitation of Liability and Indemnification. Customer acknowledges and agrees that Alteva’s liability is strictly and expressly limited for any Services outage and/or inability to complete emergency calls from any Customer line or to access emergency service personnel. CUSTOMER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS Alteva, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, CONTRACTORS AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITY, FINES, PENALTIES, COSTS AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES AND COSTS BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD- PARTY OR USER RELATING TO ANY ABSENCE, FAILURE OR OUTAGE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, EMERGENCY CALLING AND/OR INABILITY OF CUSTOMER OR ANY THIRD-PERSON OR PARTY OR USER TO BE ABLE TO CALL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL. Customer agrees and acknowledges that Alteva has entered into this Agreement in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this Agreement, including, without limitation, this Section, and that the same form an essential basis of the agreement between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement, including, without limitation, this Section, shall survive and apply even if found to have failed their essential purpose; and Customer hereby waives its right to contest the enforceability of any provision of this Section by reason of such failure.
2.5.5. Failure to Designate the Correct Physical Address when Activating E911 Service. Customer acknowledges and agrees that Customer’s failure to provide and keep current the address of the Location(s) will result in Emergency Calls being routed to the incorrect local emergency service provider. The address of the Location(s) may not be a post office box, mail drop or similar address. Neither Alteva nor Customer shall assume that the address of the Location(s) are the same as Customer’s billing address for receipt of invoices.
2.5.6. Re-Activation of E911 Service Required in Event of Changing, Adding or Porting New Numbers. Customer acknowledges and agrees that the E911 Service does not function with respect to telephone numbers that Customer changes, adds or ports to Customer’s Account (collectively, “New Numbers”), unless and until Customer successfully activates the E911 Service for each such New Number. Even if Customer successfully activates E911 Service for other telephone numbers in its Account, Customer acknowledges and agrees that Customer must separately activate E911 Service for any and each New Number.
2.5.7. Activation Required in Event of Location Change. Customer acknowledges and agrees that the E911 Service will not function properly, or possibly not at all, if Customer moves, relocates or otherwise changes the Location(s) to a different street address, unless and until Customer successfully activates E911 Service at each such new address.
2.6. Availability. The Services and Equipment are offered subject to the availability of the necessary facilities and Equipment, and subject to the provisions of this Agreement.
2.7. Lack of Compatibility. The Services and Equipment may not be compatible with Customer’s equipment and Alteva is not required to maintain or repair Customer’s equipment or to modify the Services to make them compatible with Customer’s equipment.
2.8. Right to Interrupt Services. Alteva may be required by law to interrupt the Services in the event they cause interference with the Network, a third-party or any Equipment.
2.9. Right to Discontinue Support of Equipment and Services and to Change Features. Customer acknowledges that as technology develops, some Equipment may become incompatible with these developments. Accordingly, Alteva reserves the right to discontinue support of the Equipment or the Services that have reached the end of their useful life or that are incompatible with current technological developments. This determination shall be made by Alteva in its sole discretion. Should Alteva discontinue support of any Equipment or Services pursuant to this Section, Alteva shall make commercially reasonable efforts to notify affected Customers no less than 90 days prior to the cessation of such support. Alteva may, in its sole discretion, add, change or delete features or functionality of the Services or Equipment.
2.10. Limitations of the VoIP Service and Equipment. Customer or any User may not be able to utilize the VoIP Service or Equipment, if:
(i) the Equipment or Customer’s equipment fails; (ii) the power required to operate Customer’s or any User’s computer, router or modem, if applicable, fails; (iii) Customer’s or any User’s computer experiences hardware or software problems or viruses; (iv) in situations where Alteva is not the Internet service provider, Customer’s or any User’s Internet service provider fails to provide adequate services for any reason; (v) Customer’s or any User’s hardware or software is improperly installed; or (vi) Customer or any User is blocked or otherwise unable to access the Network. By using the VoIP Service or Equipment, Customer and all Users acknowledge that the VoIP Service or Equipment may be limited in certain circumstances and may not always be available. Alteva shall not be liable for any (i) errors in transmission, (ii) failure to establish any connections or (iii) failure of, or Customer’s or User’s inability to use, the VoIP Service or Equipment. In addition, Customer acknowledges and agrees that the VoIP Service and Equipment may not be compatible with certain fax machines or firewalls.
2.11. Customer Responsibilities. Customer and Users of the Services acknowledge that, depending on the Location, (1) certain rules and regulations (collectively, the “Rules”) may apply to the use of the Services or Equipment, and (2) the Rules may be materially different from one Location to another. Customer, on behalf of itself and all Users at the Location, agrees to abide by the Rules, including, but not limited to, the exportation of data from the United States or other location. With respect to Customer’s use of the Services, the Equipment or any Customer equipment, Customer shall be responsible for, and shall indemnify and hold Alteva harmless from, any claim or damages arising from or related to: libel; slander; invasion of privacy; infringement or unauthorized use of any copyright, trademark, trade name, service mark or any other intellectual property right; interference with, misappropriation of or violation of any proprietary or creative right; any injury to any person, property or entity arising out of or related to the material, data, information or other content used, received, or transmitted by Customer or any User; and any act, error or omission by Customer or any User. Customer shall also be responsible and liable for or any personal injury, property damage or death of any person caused, directly or indirectly, by Customer, any User or any Customer employee, agent, or contractor, arising from or
related to the installation, maintenance, Location, condition, operation, failure, presence, use or removal of the Services, Equipment or any Customer equipment.
2.12. Required Maintenance. Alteva reserves the right to perform maintenance on or upgrade (collectively, the “Maintenance”) the Network, infrastructure, Website, Services, Equipment and Customer’s Account, without prior notice or liability to Customer, even if the Maintenance causes a partial or full disruption of the Services; provided, however, and subject to Alteva’s business needs, Alteva shall use commercially reasonable efforts to perform the Maintenance in a manner so as to avoid unduly interfering with Customer’s use of the Services.
2.13. Leased Equipment from Alteva. Alteva may lease Equipment (the “Alteva Leased Equipment”) to Customer. Any such leasing arrangement will be explained in a Service Order. All Alteva Leased Equipment remains the property of Alteva and must be returned within thirty (30) days following the termination of the Services. If Customer fails to return the Alteva Leased Equipment in the time specified above, Customer may be charged for the unreturned Alteva Leased Equipment at a rate based on the fair retail price of the Alteva Leased Equipment, plus applicable shipping costs and taxes. The expense of all repairs made during the Term, including labor, material, parts and any other items, shall be paid by Customer. Alteva Leased Equipment may be protected under an applicable manufacturer’s warranty. Customer shall be responsible for all shipping and handling fees associated with, and not limited to, repairs and returns of the Alteva Leased Equipment. If Alteva determines during a Customer’s Term that Alteva Leased Equipment is defective due to manufacturer error, Alteva shall make the necessary repairs to the Alteva Leased Equipment, although Alteva shall not be responsible for any fees associated with the installation or network services. Customer shall not (i) modify the Alteva Leased Equipment in any way without the express written permission of Alteva or (ii) use the Alteva Leased Equipment except in connection with the Services. Except as otherwise provided hereunder, Customer is responsible for all lost, stolen or broken Alteva Leased Equipment (a “Lease Loss”) and may be required to purchase replacement Alteva Leased Equipment to continue the Services. Replacement charges will be based on the fair retail price of the Alteva Leased Equipment, plus applicable shipping costs and taxes. Customer shall immediately notify Alteva of any Lease Loss and shall cooperate with Alteva to eliminate actual or potential unauthorized use of the Alteva Leased Equipment. At Alteva’s sole option, if a Customer fails to report a Lease Loss in a timely manner, (i) the Customer shall be responsible for all service fees accrued until the time that Alteva is informed of the Lease Loss and (ii) the Services shall
be terminated. Customer must obtain authorization from Alteva to return any Alteva Leased Equipment. Alteva shall provide replacement Equipment only if the Alteva Leased Equipment is deemed by Alteva to be defective and covered under the manufacturer’s warranty. Alteva is not responsible for the replacement of lost, stolen or modified equipment. Alteva Leased Equipment returned by Customer that is not covered under warranty may be refused by Alteva, and Customer shall be responsible to pay any return shipping charges.
2.14. Misuse; Indemnification.
2.14.1. Misuse of Services or Equipment. Customer agrees not to Misuse (as defined below) the Services or Equipment. For purposes of this Agreement “Misuse” includes, but is not limited to, any use of the Services or Equipment: (i) for auto-dialing, continuous or extensive call forwarding, fax broadcasting or fax blasting; (ii) that is fraudulent, violates laws, infringes the rights of others or otherwise adversely affects the Users, Services, the Equipment, Alteva, the Network or other Customers’ use of the Services or Equipment; (iii) that is inconsistent with
acceptable usage patterns, including a volume of activity that is significantly inconsistent with a Customer’s historical activity; (iv) that causes a disruption in the Network integrity of Alteva or its vendors, whether directly or indirectly; (v) that constitutes, or results in, a reselling, transferring or making a charge of the Services or the Equipment; or (vi) that is otherwise inconsistent with, or in violation of, this Agreement. Alteva reserves the right to determine, in its sole discretion, what constitutes a Misuse of the Services or Equipment and Customer agrees that Alteva’s determination is final and binding on Customer.
2.14.2. Indemnification for Misuse. Customer understands and agrees that neither Alteva nor its vendors are responsible for the content of the transmissions that may pass through the Internet or the Services. Customer agrees to indemnify, defend, and hold harmless Alteva from any Losses (as defined below) resulting from any third-party claim or allegation arising out of any alleged or actual Misuse or violation of this Section by Customer, any User or any third-party having access to the Services.
2.15. Privacy and Customer Personal Information. Alteva utilizes the Internet and third-party networks to provide the Services. Accordingly, Alteva cannot guarantee the security of Customer’s and User’s voice and video communications using the Services. Alteva is committed to respecting Customer’s privacy. Once Customer chooses to provide to Alteva personally identifiable information (“PII”), PII will only be used
in the context of the Customer’s relationship with Alteva and the transactions described in this Agreement. Alteva will not sell, rent or lease Customer’s PII to others. Unless required by law or subpoena or if Customer’s prior permission is obtained, Alteva shall share Customer’s PII only with other Alteva entities and/or business partners that are acting on Alteva’s behalf to complete the activities described herein. Such
Alteva entities and/or national or international business partners are governed by Alteva’s privacy policies with respect to the use of PII. Alteva is required to file numerous reports with different administrative and regulatory bodies. As such, Alteva may be required to provide aggregate statistics about Customers, sales and traffic patterns (the “Reports”) to these bodies. None of the Reports include PII. However, Alteva reserves the right to use PII to investigate and help prevent potentially unlawful activity that threatens either Alteva or any company affiliated with Alteva. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Alteva may disclose PII.
2.16. Support. Alteva provides customer and technical support to Customers for the Services and Equipment provided hereunder consisting of telephone and online support services 24 hours a day, 7 days a week. Support for other applications and uses is not provided or implied. Certain additional, non-standard support activities may be billable to Customer and may include, but are not limited to, the following:
2.17. Hourly and Per-User Fees. Alteva may charge Customer hourly or per-User fees for the following services: entire corporate reconfigurations; new individual User configurations; maintenance for remote Users outside of the Customer’s Location; and troubleshooting issues that are caused by equipment or infrastructure not purchased from, nor installed or supported by, Alteva. Rates for hourly and per-User fees shall be detailed in the Service Orders.
2.18. Theft of Service; Notice to Alteva. Customer shall notify Alteva immediately if Customer becomes aware at any time during the Term that the Services are being stolen or used by an unauthorized User. Customer acknowledges and agrees that Customer’s failure to so notify
Alteva may result in the suspension or termination of the Services and additional charges to Customer. Customer shall be liable for all use of the Services, including any stolen or unauthorized use of the Services.
2.19. Service Distinctions. Customer acknowledges and agrees that the Services do not constitute or include Traditional Telephone Services. Important distinctions exist between Traditional Telephone Services and the Services. The Services are subject to different regulatory treatment from Traditional Telephone Services. This treatment may limit or otherwise affect Customer’s rights of redress before federal, state or local telecommunications regulatory authorities.
3. Term and Termination.
3.1. Term. This Agreement shall commence on the Effective Date and continue for a term of year(s) (the “Initial Term”). The Agreement shall automatically be renewed after the Initial Term on the applicable anniversary of the Effective Date for subsequent periods equal to the Initial Term (each, a “Renewal Term”). The Initial Term and all Renewal Terms shall collectively be referred to as the “Term.”
3.2. Termination. Either party may terminate this Agreement for any reason or for no reason at the end of a Term by giving written notice to the other party not less than ninety (90) days prior to the end of the then current Term. Customer may terminate this Agreement only in accordance with the termination conditions set forth in this Agreement.
3.3. Early Termination. If Customer desires to terminate this Agreement prior to the end of a Term, Customer shall give Alteva notice (the “Early Termination Notice”), pursuant to Section 13 of its intent to terminate early ninety (90) days prior to the desired termination date. Customer shall be responsible for payment of the Monthly Service Fee for the month in which it delivers to Alteva the Early Termination Notice (the “Early Termination Notice Month”). Customer shall also be responsible for paying an early termination charge (the “Early Termination Charge”) equal to the average Monthly Recurring Charge of the Early Termination Notice Month and the two (2) prior months multiplied by 50% of the months remaining in the then current Term. The parties agree that the precise damages resulting from an early termination by Customer or termination by Alteva due to Customer’s breach are difficult to ascertain and the Early Termination Charge is a reasonable estimate of anticipated actual damages and not a penalty. The Early Termination Charge shall be due and payable by Customer within ten (10) days of the date of the invoice reflecting such charge.
3.4. Termination by Alteva for Misuse. Alteva may, in its sole discretion, suspend, terminate or change the Services without advance notice to Customer if a Misuse occurs. Alteva may require an activation fee to change or resume a terminated or suspended Account.
3.5. Circumstances beyond Alteva’s Control. Alteva reserves the right to suspend, limit or terminate the Services or the Equipment when necessitated by circumstances beyond its control.
3.6. Termination for Breach. Either party may terminate this Agreement at any time by giving thirty (30) days written notice (the “Breach Notice”) of termination to the other party in the event that the other party: (i) breaches the terms or conditions of this Agreement including, but not limited to, payment of the Monthly Service Fee, and fails to remedy such breach within thirty (30) days of the date of the Breach Notice; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, is adjudged bankrupt, or if a receiver is appointed over such party’s assets. Alteva may require an activation fee to change or resume a terminated or suspended Account.
3.7. Breach – Payment of Fees. In the event of Customer’s breach of the terms of this Agreement, including without limitation, failure to pay any sum due hereunder, in addition to other remedies and recoveries provided for hereunder (e.g., for early termination), Customer shall reimburse Alteva for all attorneys, court, collection and other costs incurred by Alteva in the enforcement of Alteva’s rights hereunder and Alteva may keep any deposits or other payments made by Customer.
3.8. Equipment Return. Customer must return all Alteva Leased Equipment to Alteva within thirty (30) days of the termination (the “Return Date”) of this Agreement or Customer shall be liable to Alteva for the full retail value of the Alteva Leased Equipment. No Alteva Leased Equipment may be returned by Customer for any reason without prior approval of Alteva. All returns shall be in original packaging or equivalent. Customer shall be responsible to Alteva for all costs related to shipping of any Alteva Leased Equipment that customer returns. Any Alteva Leased Equipment returned to Alteva without prior authorization from Alteva for its return or proper packaging may be refused. Customer
must obtain a return material authorization (“RMA”) number from Alteva, and Customer must return to Alteva by the Return Date any Alteva Leased Equipment undamaged, in good working condition, in its original packaging (or equivalent) and with its original content, along with the RMA (“Qualifying Return”). If Customer does not make a Qualifying Return by the Return Date, Customer shall be immediately responsible for paying to Alteva an amount equal to the fair retail price of the Alteva Leased Equipment.
3.9. Government or Regulatory Developments. Alteva has the right to terminate this Agreement or any Service Order if, regardless of the cause or reason, Alteva cannot legally provide some or all of the Equipment or Services for a period exceeding ten (10) days. Such causes may include, without limitation, loss of governmental or regulatory authorizations required to provide the Equipment or Services or changes in laws or regulations that make the provision of some or all of the Equipment or Services impracticable or illegal for Alteva to install, maintain or operate.
3.10. Telephone Number Portability on Termination. Upon termination of the Services, Alteva may, at its sole discretion, release telephone number(s) that Customer ported to Alteva from a previous service provider and used in connection with the Services to a new service provider, if such new service provider is able to accept such number(s), and further provided that Customer’s Account with Alteva is terminated, Customer has paid all Monthly Service Fees and Early Termination Charges that are due to Alteva, and Customer requests in writing such transfer upon termination
4. Limitation of Liability.
4.1. In the event that Customer experiences an interruption or loss of the Services due to Alteva’s fault, negligence, act, error or omission, Alteva shall provide Customer with a credit in accordance with the Service Level Agreement (“SLA”) set forth in Exhibit B to this Agreement.
4.2. Customer acknowledges that two-way VoIP conversations between the Customer’s Location and Alteva’s data centers consume approximately 85Kbps of bandwidth and that in order to deliver high voice quality, the Internet connection must be sized appropriately for the Customer’s usage environment. Customer also acknowledges that proper Virtual Local Area Network (“VLAN”) and Network configuration is essential to ensure high voice quality. Alteva will not be held responsible or liable for poor voice quality due to insufficient Internet bandwidth or improper VLAN configurations at a Location. Customer also acknowledges that other systems and applications sharing the same Internet connection that the voice conversations are using may affect the voice quality of those voice conversations. In order to achieve the highest
level of voice quality Alteva strongly recommends that Customer uses a dedicated Internet connection for voice traffic. Alteva will not be held responsible or liable for any poor voice quality or Services-related issues that may arise from multiple application routing over a shared Internet connection.
4.3. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL ALTEVA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR VENDORS BE LIABLE TO CUSTOMER, A USER OR ANY THIRD-PARTY FOR ANY CLAIMS, ALLEGATIONS OR DAMAGES, INCLUDING BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF LIFE, DATA, REVENUE OR PROFITS, OR FOR INJURY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES OR EQUIPMENT, INCLUDING THE FAILURE OR INABILITY TO ACCESS E911 SERVICE, ANY EMERGENCY SERVICE OR TO SPEAK TO 911 EMERGENCY PERSONNEL, WHETHER DUE TO A
BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCTS LIABILITY, TORT, ALTEVA’S SUSPENSION OR TERMINATION OF THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT, THE NEGLIGENCE OF ALTEVA OR ITS VENDORS AND ANY AND ALL OTHER CAUSES OF ACTION OR THEORIES OF LIABILITY, EVEN IF ALTEVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.4. ANY CLAIM AGAINST ALTEVA MUST BE MADE WITHIN 90 DAYS OF THE DATE OF THE EVENT GIVING RISE TO THE CLAIM OR 90 DAYS FROM THE TERMINATION OF THE SERVICES, WHICHEVER IS EARLIER, AND ALTEVA SHALL HAVE NO LIABILITY FOR ANY CLAIM MADE THEREAFTER. ALTEVA’S TOTAL LIABILITY SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE SERVICES OR A CREDIT OR REFUND OF MONTHLY SERVICE FEES PAID BY CUSTOMER. ALTEVA MAY ELECT TO PROVIDE A REFUND IN LIEU OF A CREDIT, REPLACEMENT OR REPAIR. ALTEVA SHALL NOT BE RESPONSIBLE FOR DAMAGES RELATING TO MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION OR REPAIRS BY CUSTOMER OR ANYONE OTHER THAN ALTEVA.
4.5. Maximum Liability. In no event shall Alteva’s total aggregate liability to a Customer, User or any other person or entity, whose claim is based on or derived from a right claimed by Customer, or to any third-parties, for any claims arising from or relating to the provision of the
Services or Equipment, any Service Order, this Agreement, or any other claim or cause of action, whether in contract, tort, or otherwise, exceed the amounts paid by customer to Alteva in the prior twelve (12) months from the date of claim (the “Maximum Liability”). Alteva shall have no liability whatsoever for any damage to, or loss of, any Equipment or other property under the care, custody or control of Customer or any User unless caused by Alteva’s gross negligence or willful misconduct, in which case Alteva’s total liability shall not exceed the Maximum Liability.
4.6. Claims for Non-Payment. Alteva may bring an action against Customer for non-payment of invoices and any other charges (“Collection Actions”) at any time permitted by law.
5. No Warranty. THE EQUIPMENT AND SERVICES ARE PROVIDED BY ALTEVA ON AN “AS-IS” BASIS, AND CUSTOMER’S AND USERS’ USE OF THE EQUIPMENT AND SERVICES ARE AT THEIR OWN RISK. OTHER THAN ANY THIRD-PARTY MANUFACTURERS’ WARRANTIES THAT MAY BE APPLICABLE TO THE EQUIPMENT, ALTEVA MAKES NO WARRANTY THAT THE SERVICES OR EQUIPMENT WILL OPERATE UNINTERRUPTED OR ERROR FREE. ALTEVA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ALTEVA NOR ITS VENDORS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO ALTEVA’S OR CUSTOMER’S TRANSMISSION FACILITIES OR 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 ALTEVA’S OR ITS VENDORS’ NEGLIGENCE. ALTEVA DOES NOT WARRANT THAT ANY OF THE SERVICES WILL BE AVAILABLE ON A SPECIFIED DATE OR TIME OR THAT THE NETWORK WILL HAVE THE CAPACITY TO MEET THE DEMAND OF USERS DURING SPECIFIC HOURS. CUSTOMER MAY BE UNABLE TO ACCESS THE ALTEVA NETWORK AT ANY TIME AND DISCONNECTION FROM THE ALTEVA NETWORK MAY OCCUR FROM TIME TO TIME
6. Equipment, Software and Internet Use.
6.1. Costs at Location. Customer is responsible for all costs at its Location, including without limitation, personnel, wiring, computer equipment, Internet access (when Alteva is not the Internet service provider), electrical power and the like, necessary for the use of the Services and Equipment.
6.2. Lease or Purchase of Equipment. In order to provide the Services, Customer generally may obtain the necessary Equipment through one of the following two different methods: (i) most commonly, Customer will lease the Equipment from a third-party lessor with whom Alteva has contracted to perform such leasing services; or (ii) Customer may purchase the Equipment from Alteva (each of (i) and (ii) being a “Supply Method”). Regardless of which Supply Method is used, the Equipment will generally be shipped from the supplier of the Equipment (the “Supplier”) directly to the Customer. All Equipment shipments are F.O.B. Supplier’s facility. Regardless of which Supply Method is used, Alteva shall have no liability for delivery, lack of delivery, damage or loss of any Equipment. Customer shall receive whatever warranty, if any, on the Equipment that may be provided by the manufacturer of the Equipment.
6.3. Installation Fee, Non-Alteva Phone. A fee shall be assessed to Customer for the configuration of each phone purchased through an outside vendor. If phones are acquired from a source other than Alteva and are not available and on-site on a scheduled install date, Customer shall be assessed a rescheduling fee.
6.4. Timing of Installation. Installation of the Equipment by Alteva shall take place Monday through Friday, 8:00 a.m. through 5:00 p.m.; additional costs shall be assessed to Customer for evening and weekend installations. Installations for more than ten (10) users shall require the Customer to assemble and place phones on the appropriate desks. Customer shall be responsible for paying Alteva’s travel expenses for on-site installation services provided by Alteva or Alteva’s authorized representatives.
6.5. Customer acknowledges and agrees that installation services are provided on an “as is, where is” basis.
6.6. Third-Party Software. The Services include certain software that Alteva has licensed from third-parties. Customer agrees that it will not use this third-party software except in conjunction with use of the Services and Equipment.
6.7. Third-Party Networks. Alteva utilizes the public Internet and third-party networks in conjunction with the provision and maintenance of the Services and the Website. Alteva makes no representation that the Internet or any third-party network will adequately protect the privacy of Customer’s or any User’s personal information, and Alteva expressly denies any liability associated therewith.
7. Financial Terms.
7.1. Customer Payment Obligation. Customer agrees to and shall, throughout the Term, pay all Charges, Taxes and Fees (each as defined below), as set forth in the Invoices (as defined below), irrespective of whether Customer decreases, abandons or cancels its use of the Services during the Term. Customer’s failure to timely pay the Charges shall constitute a breach of this Agreement. If the amount due for any Charge includes a fraction of a cent, the fraction shall be rounded up to the nearest whole cent.
7.2. Fee Changes and Notification. Customer acknowledges that Alteva may change rates, Charges, or plans from time-to-time in its sole discretion (a “Rate Change”). Alteva shall give Customer notice of any Rate Change in Customer’s first monthly billing statement following the Rate Change (the “Rate Change Statement”). If there is a Rate Change, Customer shall be permitted to terminate the Services without incurring an Early Termination Charge only if Customer gives Alteva written notice (“Timely Notice”) of termination within thirty (30) days of receipt of the Rate Change Statement (a “Permitted Termination”). In the case of a Permitted Termination, the Agreement shall terminate thirty (30) days after receipt of the Timely Notice and Customer shall remain liable for any accrued charges owed prior to the effective date of termination. If Customer fails to give Timely Notice, Customer shall be deemed to have accepted the Rate Change, waived its right to a Permitted Termination and the Agreement shall remain in full force and effect.
7.3. Taxes. Federal, state, local, county, municipal and other governmental or regulatory agencies may assess taxes, including, without limitation, excise, franchise, sales, value-added, use, personal and real property taxes, surcharges, tariffs or fees (collectively, “Taxes”) on Customer’s purchase or use of the Services or Equipment. These Taxes may change from time-to-time, with or without notice to Customer. Customer is responsible for the payment of all applicable Taxes now in force or enacted in the future. The Taxes are in addition to the amounts paid for the Services and Equipment. If Customer is exempt from any or all Taxes, it must provide Alteva with an original certificate that satisfies applicable legal requirements attesting to its tax-exempt status. Tax exemption shall only apply from and after the date that Alteva receives such valid certificate. If any amounts paid by Customer for the Services are refunded by Alteva to the Customer, applicable Taxes may not be refundable.
7.4. Fees. In addition to the Taxes, Alteva reserves the right to charge Customer for, or pass through to Customer, or increase, various fees including, without limitation, activation fees, E911 Service fees, universal service fees and Regulatory Recovery Fees (as defined below) (collectively, the “Fees”). Any imposition of or increase in Fees that are imposed by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs may, in Alteva’s sole discretion, be effective immediately. The “Regulatory Administration Fee” is not a tax or charge required or assessed by any government, but rather is intended to offset costs incurred by Alteva in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies or governments and the legal and billing expenses related thereto. The Regulatory Administration Fee will be determined as a percentage applied to Monthly Recurring Charges and Usage Charges as described in Section 7.8.1. The imposition of or increase in any Fees shall not constitute a Rate Change and shall not give Customer a right to a Permitted Termination pursuant to this Section 7.
7.5. Toll Charges. Every call using the Services that originates or terminates in the PSTN, including other VoIP networks, is subject to the then applicable toll charges, based on the duration and location of each call, that are associated with the rate plan subscribed to by Customer as set forth in the Service Order(s) (the “Toll Charges”). The duration of each call shall be calculated in six-second increments and rounded up to the nearest six-second increment for any fraction of six-seconds used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent.
7.6. International Toll Charges. Calls to a phone number outside of the United States and Canada will be charged usage charges (the “International Rates”). When Customer dials an international PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by Customer to an international mobile, rather than landline or premium rate telephone, number may result in higher International Rates. Alteva may change the International Rates from time to time in its sole discretion. International Rates are updated monthly on the first of each month and no other notice shall be provided for changes to the International Rates. Upon inquiry at any time, Alteva shall provide the then-current International Rates to Customer.
7.7. Discounts. From time to time in its sole discretion, Alteva may offer promotions or discounts of activation or other fees. Customer shall not be entitled to a subsequent credit for such promotions or discounts if not requested at the time of Account creation or change of Services.
7.8. Billing and Payment.
7.8.1. Billing. On a monthly basis, Alteva shall provide Customer with a statement (the “Invoice”) detailing all charges for the Services and Equipment, as applicable. Such charges shall include, but not be limited to: (i) monthly recurring charges (“Monthly Recurring Charges”) such as charges for licenses, phone numbers and data circuits; (ii) non-recurring charges (“Non-Recurring Charges”) such as charges for Equipment, shipping, activation, disconnection and early termination; (iii) usage charges (“Usage Charges”) such as charges for local, long distance and international calls; (iv) taxes, surcharges and fees (“Taxes and Fee Charges”) such as charges for state, municipal and federal taxes and administrative surcharges; and (v) any other amounts due ((i) through (v), collectively, the “Charges”). All Monthly Recurring Charges are
billed in advance of each month’s Service. All Usage Charges and Taxes and Fee Charges are billed subsequent to the end of each month’s Service. Billing commences upon the Service Activation Date at the Location. Some Services may be activated in advance of others and have a different Service Activation Date(s) and the resulting billing commencement may be staggered accordingly. The first month’s Monthly Service Fee for any Services activated for a partial month shall be prorated to take into account any partial month that may occur as the result of the date Monthly Service Fees are initiated.
7.8.2. Payment. Customer’s payments for the Charges must be received by Alteva by the due date indicated on the Invoice (the “Due Date”). Customer shall pay Charges for any partial month during the Term on a pro-rata basis. Customer is solely responsible for any and all Charges incurred as the result of the use of the Services associated with its Account, whether or not such charges were authorized or intended by Customer.
7.8.3. Authorization to Verify Credit Rating. Alteva’s provision of the Services to Customer shall at all times be subject to credit approval or review by Alteva. Customer agrees to supply Alteva with the information necessary to verify Customer’s credit rating prior to providing
Customer with access to any Service or Equipment. Alteva may also, during the Term, update its information regarding Customer’s credit rating without notice to Customer. Customer acknowledges and agrees that all Services and Equipment provided pursuant to this Agreement are subject to credit approval and review by Alteva.
7.8.4. Deposit. If Alteva determines, either prior to providing Customer with the Services or Equipment or during the Term, that it requires a deposit (the “Deposit”) to ensure Customer’s payment, Customer may be required to provide a Deposit. In the event that Alteva requires a Deposit, the Deposit shall be held and applied as required by law. Alteva may apply Customer’s Deposit to past due obligations as well as to any fees or other assessments to Customer’s Account.
7.8.5. Electronic Invoice Delivery. Billing periods and Invoice formats may vary. Alteva reserves the right to change the billing period, Invoice format or method of delivery from time-to-time, with or without notice to Customer. Unless otherwise agreed, all Invoices shall be delivered electronically to the email address on file for Customer’s Account. Customer is obligated to keep its Account information, including the billing email address, accurate and current. An incorrect or obsolete email address shall not release Customer from any of its payment obligations hereunder.
7.8.6. Billing Disputes. If Customer disputes any portion of its Invoice, Customer must pay the undisputed portion in full by the Due Date. To dispute an Invoice, or a portion thereof, Customer must, within ten (10) days of the date on the Invoice (“Dispute Due Date”), submit a written claim fully documenting the reasons for the dispute (the “Claim”) via certified or overnight mail, return receipt requested, to the address below. After receipt of the Claim, Alteva shall undertake an investigation of the Claim, so long as Customer has not waived its rights pursuant to this paragraph to make the Claim. At the conclusion of the investigation, Alteva will notify Customer of any amount determined by Alteva to be correctly charged and such amount will become immediately due and owing. Amounts determined by Alteva to have been correctly charged will be subject to the Late Payment Fee (as defined below). If the Claim is not sent by the Dispute Due Date, Customer waives all rights to dispute the applicable Charges, unless otherwise provided by law. All billing disputes must be sent to:
401 Market Street, 1st Floor Philadelphia, PA 19106
7.8.7. Late/Non-Payment. If Customer does not deliver full payment for all billed Charges by the Due Date, Alteva may restrict, suspend or terminate use of the Services or Equipment. Any amounts not delivered to Alteva by the Due Date shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount allowed by law, whichever is less. Customer shall also reimburse Alteva for all reasonable attorneys’ fees and other costs incurred by Alteva relating to collecting delinquent payments or Customer’s breach
of this Agreement. A fee per phone extension shall be charged to activate a suspended Account. No restriction, suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder. If Alteva restricts, suspends or terminates Customer’s Services, Alteva may, at its sole option, choose to restore Customer’s Services prior to the payment of all Charges due. Such restoration shall not be construed as a waiver of Alteva’s right to (i) receive full payment for all Charges due or (ii) again restrict, suspend or terminate the Services at any time for non-payment of any unpaid Charges. The failure of Alteva to restrict, suspend or terminate the Services for non-payment of any Charges shall not operate as a waiver or estoppel to restrict, suspend or terminate Services of such Account for non- payment of current or future Charges.
7.9. Trademarks. Neither party shall use any of the other party’s trade names, trademarks, service marks or logos (collectively, the “Marks”) without the other party’s express written consent. It is expressly understood that the Marks of each party are proprietary and that nothing in this Agreement constitutes the grant of a general license for their use by the other party. Upon termination of this Agreement, all rights and privileges of a party to use the other party’s Marks that may have been granted, shall expire and each party shall discontinue all use of the other’s Marks.
8. Indemnification. Customer shall indemnify, defend and hold harmless Alteva, its Affiliates and their respective officers, directors, employees, agents and representatives (collectively, “Alteva Indemnities”), from any and all Losses (as defined below) arising from, in connection with, or based on, a Claim (as defined below) of third-parties (including employees of Customer) caused by the actions or inactions of Customer, including, but not limited to, any claim for breach of privacy or for violation of state or federal wiretap laws related to Customer’s use of the call-recording capabilities of the Services. “Claim” means any allegation, demand or any civil, criminal, administrative or investigative claim, action or proceeding (including arbitration) asserted, commenced or threatened against an entity or person. “Losses” means all losses, liabilities, damages, liens, claims and all related costs, expenses and other charges suffered or incurred as a result of or in connection with
a Claim, including reasonable attorneys’ fees and disbursements, costs of investigation, litigation, settlement and judgment, and any taxes, interest, penalties and fines with respect to any of the foregoing.
9.1. Each party (a “Receiving Party”) acknowledges that it and its employees, contractors, or agents may, in the course of satisfying its obligations hereunder, be exposed to or acquire information which is proprietary or confidential to the other party (a “Disclosing Party”). Any and all information in any form obtained by a Receiving Party or its employees, contractors or agents in the provision, performance or use of the Services or the satisfaction of such party’s obligations hereunder, including but not limited to the financial terms of this Agreement, product and business information, financial information, trade secrets, know-how and information regarding processes, shall be deemed to
be the confidential and proprietary information (“Confidential Information”) of the Disclosing Party. The Receiving Party agrees (a) to hold all Confidential Information in strict confidence; (b) to disclose Confidential Information only to employees or contractors of the Receiving Party who have a need to know such Confidential Information and who are obligated to hold such Confidential Information in strict confidence; and
(c) not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such Confidential Information to third-
parties, or to use the Confidential Information for any purposes whatsoever other than in connection with the Receiving Party’s performance under this Agreement.
9.2. Confidential Information shall exclude all information, which (a) at the time of disclosure is, or thereafter becomes, a part of the public domain through no act or omission of the Receiving Party, its employees, contractors or agents; (b) was in the Receiving Party’s possession as shown by written records prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is hereafter disclosed to the other party by a third-party who did not acquire the information directly or indirectly from the Disclosing Party; or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, as evidenced by written records. Notwithstanding the foregoing, each party may disclose Confidential Information received in confidence to the limited extent (i) required by law to be disclosed, or in order to comply with the order of a court or other governmental body, provided that the party making the disclosure pursuant to the order shall first, to the extent it is permitted to do so, give written notice to the other party and make a reasonable effort to obtain a protective order to the extent permitted; or (ii) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do, but only to the extent and for the purposes of such required disclosure.
10. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions. Customer and Alteva agree to submit to the personal and exclusive jurisdiction of the courts within the Commonwealth of Pennsylvania and waive any objection as to venue or inconvenient forum.
11. Dispute Resolution. In the event of any controversy, claim or dispute (collectively, a “Dispute”) arising from or related to this Agreement, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the Dispute between themselves. Except for Disputes related to Customer’s alleged failure to pay any Charges (“Collection Claims”), which are governed by Section 13.1, any and all Disputes arising out of or relating to this Agreement, including its validity, shall be settled and determined by arbitration before one (1) arbitrator in accordance with the Commercial Arbitration Rules and Mediation Procedures then in effect with the American Arbitration Association. The arbitrator’s award shall be final and binding on the parties, and judgment confirming such arbitration award may be entered thereon in any court having jurisdiction over such proceedings. Except as provided in Section 13.1, each party shall bear its own costs and expenses of preparing and presenting its case and shall bear an equal share of the expenses and fees with respect to the arbitration. The arbitrator shall not be empowered to award damages in excess of direct compensatory damages and shall not be authorized to award special, indirect, punitive, incidental or consequential damages, and each party irrevocably waives the right to be awarded or collect any damages in excess of direct compensatory damages.
11.1. Collection Claims. Notwithstanding the above, Alteva shall be reimbursed for reasonable attorneys’ fees, expenses and costs related to Collection Claims. In the event that Alteva is required to initiate a Collection Claim, it shall not be limited to arbitration but may bring an action in civil court.
12. Severability. This Agreement is made subject to all present and future valid orders and regulations of any regulatory body or court having jurisdiction over the subject matter and parties hereof and to the laws of the United States of America, any of its states, or any foreign governmental agency having jurisdiction. In the event this Agreement, or any of its provisions, shall be found contrary to or in conflict with any such order, rule, regulation, or law, this Agreement shall be deemed modified to the extent necessary to comply with any such order, rule, regulation or law, provided that such modification is consistent with the form, intent and purpose of this Agreement. If any provision of this Agreement or part thereof is stricken in accordance with this section, then the stricken provision shall be replaced, to the extent possible, with the legal, enforceable and valid provision that is as similar to the stricken provision as is legally possible.
13.1. To Customer: Alteva communicates with its customers primarily via email. Notices to Customers shall be sent to the email address specified by Customer at the time of registration for the Services or as subsequently specified by Customer (“Customer’s Email”). Customer is responsible for notifying Alteva of any change to Customer’s Email. Customer agrees that sending a message to the Customer’s Email is the agreed-upon means for Alteva to provide notice to Customer. Email is used to communicate important information about the Services,
Charges, billing, changes to the Services and other information. The information is time-sensitive. It is required that Customer read any email sent to the Customer’s Email in a timely manner in order to avoid any potential interruption in the Services.
13.2. To Alteva: Any notices, other than billing disputes as described in Section 7.8.6, sent to Alteva under this Agreement shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service, to the following address:
401 Market Street, 1st Floor Philadelphia, PA 19106
With copies to:
Chief Operating Officer Alteva
401 Market Street, 1st Floor Philadelphia, PA 19106
and to: altevanotices@Alteva.com
14. Waiver. The failure of either party to enforce compliance with a provision of this Agreement shall not be construed as a general waiver of such provision or any other provision.
15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns and any User who uses the Services under Customer’s Account. This Agreement shall be deemed to have been drafted equally by both parties. Should any provision of this Agreement require interpretation or construction, the parties agree that this
Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party who prepared this Agreement.
16. Assignment. Neither party shall assign or transfer its rights or obligations under this Agreement without prior written consent of the other party, which shall not unreasonably be withheld. The rights and obligations under this Agreement shall survive any merger, sale, acquisition and/or assumption of assets of, and by, either party and shall be binding upon the successors and assignees of each party.
17. Amendment. This Agreement shall not be amended, or any provision waived, except pursuant to an instrument in writing signed by each party.
18. Entire Agreement; Headings. The terms and conditions of this Agreement and the other agreements referred to herein constitute the entire agreement with regard to the provision of the Services and any other subject matter herein, and supersede and replace any prior or contemporaneous agreements between the parties, whether written or oral. Headings contained in this Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this Agreement.
19. Survival. The provisions of Section [1, 2, 3, 4, 5, 7, 8, 10, 11, 12, 14, 15, 18, 19, 20, 21, 23, 24 and the provisions set forth in Exhibit A] shall survive any termination or expiration of the Agreement.
Independent Contractors. Alteva and Customer are independent contractors. This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.
20. Basis of Bargain; Failure of Essential Purpose. Customer acknowledges and agrees that Alteva has established its prices and entered into one or more Master Services Agreements in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
21. Facsimile and Electronic Transmission; Counterparts. This Agreement and any related Service Orders may be executed and delivered by facsimile or electronic transmission, and upon receipt, such transmission shall be deemed the delivery of an original. This Agreement and any related Service Order may be executed in several counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
22. Force Majeure. Alteva shall not be liable for any delay in performance of the Services or Equipment directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties that may occur despite Alteva’s best efforts.
23. Customer Consent to Use of Customer Information. Alteva acknowledges that it has a duty under federal and state law, to protect the confidentiality of Customer’s Proprietary Network Information (“CPNI”). Such CPNI includes, without limitation, information about the type and quantity of telecommunications services purchased by Customer from Alteva, Customer’s Account activity and Charges incurred by Customer. Customer consents to Alteva’s use of CPNI for marketing purposes to offer Customer the full range of products and services available from Alteva, some of which may be different from the Services Customer currently purchases from Alteva. A more complete description of Alteva’s products and services is available on the Website or Customer may contact its Alteva account representative. Alteva may also share CPNI with its Affiliates, agents or partners to offer other services and products not currently being purchased by Customer from Alteva. Alteva needs Customer consent for Alteva and its Affiliates, agents and partners to use CPNI to offer such other services and products not currently being purchased by Customer from Alteva. By signing this Agreement, Customer gives Alteva Customer’s consent to use and disclose CPNI as described above. Customer may refuse to give this consent by signing this Agreement and by notifying Alteva in writing of Customer’s decision to withhold such consent. Customer’s consent or lack thereof will (i) remain valid until Customer otherwise advises Alteva in writing and (ii) not affect Alteva’s provision of the Services or Equipment to Customer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first written above. Customer Alteva, Inc.
Name: Name: John Conn Title: Title: Chief Operating Officer