Service Agreement Terms
1) Period of Agreement: This agreement is for the period described on page 1 (initial term) from the effective date and shall thereafter be automatically renewed for a period of 1 year, unless written notice is received by WESTELCOM a minimum of 30 days prior to the expiration date of the term of the agreement. In the event the Service Commitment Period, subject to all the terms and conditions of this agreement as if it were still in effect with respect to the Services.
2) Privacy: The terms of this agreement are the proprietary information of both WESTELCOM and the Customer, and are not to be disclosed under any circumstances without the written permission of both parties, unless so required by law.
3) Assignment: This agreement shall be binding upon and inure to the benefit of the partied hereto and their respective successors and assigns. Upon written notice WESTELCOM may assign this agreement to any subsidiary, parent or to an entity affiliated with WESTELCOM, or to WESTELCOM’s successor pursuant to any reorganization or merger of its business, or pursuant to any sale or transfer of all or substantially all of its assets. No other assignment by WESTELCOM will be permitted without the prior written consent of the customer, which consent shall not be unreasonably withheld or denied.
4) Service: WESTELCOM will provide to Customer the use of the services as ordered by Customer per this agreement. Customer may use the services for all lawful telecommunications purposes, but Customer shall in no event be deemed to have a greater right to use the Services than that which WESTELCOM may legally provide under applicable Federal and State Laws and regulations.
5 ) Liability and Warranties: Except as otherwise set forth in this agreement, WESTELCOM makes no warranties, representation, or other agreements, express or implied with respect to the service, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose. In no event shall either party be liable for special, incidental, consequential, indirect or punitive damages , loss of revenue or profit, loss of goodwill, loss or use of any property, cost of substitute performance, equipment or services, downtime costs and claims of either party for damages, even if such party is advised of the possibility of such damages. WESTELCOM is not responsible for any warranty offered by the Customer to any third party. WESTELCOM’s entire liability for any claim, loss expense of damage under this agreement or any Service Order shall in no event exceed the sum actually paid by the customer to WESTELCOM for the service, which gives rise to the claim. WESTELCOM shall use all commercially reasonable efforts to maintain the service to the customer as specified herein.
6) Invoice: The MRC for the initial partial month of service (if applicable) be prorated for that portion of said partial month of service in which service is actually provided, and may be invoiced upon initiation of such Service. On an ongoing basis, WESTELCOM will invoice Customer for Service charges each month for that month, at the beginning of the month’s service. NRC shall be invoiced upon receipt by WESTELCOM of each Service Order. Customer shall pay all invoices (MRC, NRC) within 25 days of the date of the invoice (Due Date) without reduction, set-off or adjustment and send its payments to the address specified on the invoice. WESTELCOM may impose a late payment charge, if payment is not received by the due date, of the lower of one and one-half percent (1 ½%) per month or the maximum rate allowed by law on the non0disputed amounts due under any invoice not paid by the Due date.
7) Service Commencement: Service Commencement shall be determined using the following criteria: a) completion of testing by Westelcom and acceptance by customer/or b) If after two (2) business days from completion and turn over to customer does not attach equipment or reject service, service will be deemed accepted, or c)IN a multiple node network, Service Commencement Date. This date will be used to calculate service start date and service end date.
8) Suspension of Service: WESTELCOM may, at its sole discretion, but with at least 10 days of written notification to the customer, suspend service if payment has not been received by the due date. WESTELCOM will restore service if WESTELCOM receives payment of all current and overdue charges. Service will be restored after payment is received, and within 72 hours of said receipt. WESTELCOM may assess a Service restoration fee of up to $750 to restore service after suspension of service for nonpayment.
9) Early Termination: If customer cancels or terminates this agreement prior to the end of the initial term, or terminates a service order prior to the end of its term, except if early termination is due to WESTELCOM’s inability to deliver service level described in section 18, Customer agrees to pay WESTELCOM a termination charge, as liquidated damages and not as a penalty or forfeiture as follows (i) all applicable non-recurring charges (NRC) , promotional and term discounts plus 25% of the remaining contractual monthly charges.
10) Severability: Except for sections 1, 5, 7, 8, 9 and 10 of this agreement which are the essence of this agreement and reflect the vital and central agreement of the parties with respect to the subject matter hereof and without which their bargain would not have been consummated, each provision of this agreement is severable from the whole, and if one provision is declared invalid, the other provisions shall remain in full force and affect.
11) Material Change in Law: If any regulatory requirement has the effect of canceling, changing or superseding any material term or provision of this agreement, then this agreement will be deemed modified in such a way as the parties mutually agree is consistent with the intent and purpose of this agreement and is necessary to comply with the regulatory requirement effective as of the date of notice by providing written notice to the other party.
12) Choice of Law: The parties agree that this agreement shall be governed by and construed in accordance with the laws of the state of New York. Parties agree that any action or suit commenced pursuant to or in respect of this agreement shall be brought in the State or Federal courts situated in Jefferson, Clinton, Essex or Franklin County, New York.
13) Force Majeure: Neither party shall have any liability to the other solely by virtue of the occurrence of a Force Majeure Event, whether such Force Majeure.Event occasions a default or otherwise engenders a potential liability. A Force Majeure Event shall include, but not limited to, events such as vandalism, acts of God, fire, flood, storms and storm damage, acts of war, terrorism, sabotage, riot or other civil disorders, actions of civil or military authorities, accidents of all types, and any other acts which are out of the control of WESTELCOM. Lack of funds to make any required payment by Customer shall not be construed to be a Force Majeure Event
14) Indemnification: Subject to the limitations set forth in Section II, above, each party shall indemnify and hold the other harmless from and against all liabilities, claims, damages, losses, costs, expenses and judgments (including reasonable attorney’s fees) and causes of action arising out of or in connection with this Agreement or any Service Order.
15) Notices: All notice, demands, requests or other communications which may be, or are required to be, given or served, or sent by any party to any other party pursuant to this agreement shall be in writing and will be deemed to have been duly delivered or given when (i) delivered by hand (with written confirmation of receipt) before 5:00 p.m. EST on a business day (or otherwise on the next succeeding business day) (ii)sent by facsimile before 5:00 p.m. EST on a business day (or otherwise on the next succeeding business day) and a written confirmation of the transmission is received by the sender; or (iii) the next business day after being deposited for delivery with a nationally recognized overnight delivery service, such as a Federal Express, and addressed or sent, as the case may be, to the appropriate addresses of facsimile numbers set forth on the Cover Sheet. Each party may designate by notice in writing a new address, to which any notice, demand, request or communication may thereafter be so given, served or sent.
16) Service Charges: Customer agrees to pay all monthly recurring charges (MRC), nonrecurring charges (NRC), taxes, fees and other similar charges that arise out of Customer’s use of the Services, or legally entitles to be collected by WESTELCOM as a direct result of WESTELCOM’s provision and/or arrangement for Service to customer. These monthly recurring and non-recurring charges are set forth in this agreement. These charges do not include applicable fees and charges such as access or egress ( or related) charges imposed by third parties; tax, tax-related or tax-like surcharges; or similar charges. Customer agrees to pay all additional charges, to extent applicable, in addition to the charges set forth in this Agreement.
17) Hacking/Fraud: Westelcom cannot be held liable for any Long Distance or international charges incurred as a result of hacking and/or fraudulent access into your phone system or account. All customers should take the necessary precautions to restrict unauthorized access that can result in charges from Westelcom or any other long distance carrier.
18) Guarantee of Service: WESTELCOM guarantees that its service will be online and available 98.9% of the time and measured over any 30 day period. In the event that 1.1% downtime is exceeded in any given month, WESTELCOM will credit Customer with one full days usage (1/30th of MRC). This guarantee applies to normal operating conditions, and does not cover service outages due to a Force Major Event as defined in Section 18. WESTELCOM is not responsible for business losses, loss of revenue, or other damages as a result of Service outages, regardless of the cause. WESTELCOM also provides service guaranteed to higher levels of reliability by establishing physically redundant network loops and/or networks with guaranteed backup protection links.
19) Regulatory Costs: WESTELCOM and Customer recognize that from time to time, Local, State, and Federal Government agencies may impose additional taxes, assessments, franchise fees and other forms of regulatory fees beyond the control of, or the scope of this agreement. WESTELCOM will pass on these additional costs in the form of a line item on Customer invoice entitled Regulatory Fees.