Telovations, Inc. General Terms and Conditions
1. DESCRIPTION OF SERVICES. TELOVATIONS, either directly or through its authorized affiliates or underlying carriers, shall provide the TELOVATIONS services (the "Telovations Services") as indicated on one or more service orders (each, a "Service Order") to Customer. In some cases, Customer may choose to supply its own Internet connectivity. Customer acknowledges and agrees that the availability and quality of Internet connectivity will affect the performance of the TELOVATIONS Services.
2. TELOVATIONS and CPE Equipment. To provide the TELOVATIONS Services, TELOVATIONS must install equipment at your Service Address, which remains the sole property of TELOVATIONS at all times and shall not be considered customer-premises equipment. Customer agrees to comply with all requirements regarding the use and/or care of TELOVATIONS equipment, and to take reasonable measures to protect TELOVATIONS equipment at all times. Customer agrees to provide a secure, air-conditioned space to install the Telovations equipment and ample electricity (with certified earth ground) to operate the TELOVATIONS equipment. Customer agrees to be responsible for the replacement value of any damaged, lost, stolen, or unreturned equipment. TELOVATIONS will replace or repair any of the TELOVATIONS equipment that does not perform as specified, at no charge to Customer, unless we determine, in our sole discretion, that the Customer is directly or indirectly responsible for the equipment failure. Customer can also elect to purchase, install and maintain their own Equipment (“CPE Equipment”) using a vendor and product approved by TELOVATIONS. Customer agrees not to connect any equipment to the TELOVATIONS Services without prior approval. Customer authorizes TELOVATIONS or its financing lessor to file a financing statement to provide public notice of its interest in the TELOVATIONS Equipment.
3. LICENSE GRANT AND RESTRICTIONS. Subject to Customer’s compliance with the terms of this Agreement, TELOVATIONS shall provide Customer with the limited, nonexclusive, revocable, non-transferable, non-sublicensable right and license to use the technology and software inherent in, incorporated in, and/or necessary for the provision of the TELOVATIONS Services (the “Technology”) as specifically set forth in this Agreement. Customer shall only use the Technology to process its own data and Customer shall not grant any sublicenses or otherwise make the Technology available to any other person, entity or business without TELOVATIONS’ prior written consent. Customer shall not reverse assemble, reverse compile, reverse engineer or modify the Technology in whole or in part. In the event software is included in the Technology provided to Customer hereunder, Customer shall have the limited right to use such software in object code form only on the hardware on which it is installed for the sole purpose of enabling Customer or end users to use the TELOVATIONS Services. TELOVATIONS or its licensors retain all right, title and interest in and to the Technology including all intellectual property rights therein.
4. TERM AND TERMINATION. This Agreement shall commence on the Effective Date (Install Date) and shall continue for the initial term set forth as the “Term Length” on the Service Order form (or, if no such term is specified on the Service Order form, for an initial term of two (2) years). Thereafter, the term of this Agreement shall automatically renew for successive one (1) year terms, unless this Agreement is terminated in accordance with the balance of this Section 4. TELOVATIONS shall have the right to terminate this Agreement upon Customer's material breach which breach has remained uncured for a period of thirty (30) days after the receipt of written notice thereof from TELOVATIONS. TELOVATIONS shall have the right to suspend any or all of the TELOVATIONS Services if Customer engages in activities which, in the reasonable opinion of TELOVATIONS, may cause disruption of service or damage to TELOVATIONS’ network or facilities. In the event Customer terminates this Agreement prior to the end of the then current term, Customer shall promptly pay TELOVATIONS the Rates that would have been due and owing for the remainder of the then current term.
5. Rates, Billing and Taxes. For the TELOVATIONS Services provided pursuant to this Agreement, Customer shall pay TELOVATIONS the rates (“Rates”) set forth in the Service Order. TELOVATIONS shall invoice Customer monthly in advance for the applicable Rates. Customer shall pay TELOVATIONS within ten (10) days of each invoice date. If Customer fails to pay any invoice within this time, TELOVATIONS shall have the right to charge Customer interest at the rate of 1.5% per calendar month on any outstanding balance and, upon failure to cure within ten (10) days written notice, notwithstanding any language to the contrary in this Agreement, TELOVATIONS shall have the right to immediately suspend and/or terminate the TELOVATIONS Services until such outstanding balances are paid in full. All Rates and other charges due hereunder are exclusive of all applicable taxes, including sales taxes and duties or levies imposed by any authority, government, governmental agency, all of which shall be promptly paid when due by Customer. Under no circumstances shall refunds be provided to Customer hereunder.
6. CONFIDENTIAL INFORMATION. Each party shall treat as confidential all proprietary and confidential Information of the other party ("Confidential Information"), shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the other party's Confidential Information and shall not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the parties shall use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement, but in no event less than reasonable care.
7. EMERGENCY 911 SERVICE. During the Term, TELOVATIONS will make available to Customer EMERGENCY 9-1-1 Service in accordance with, and subject to, the terms and conditions set forth in TELOVATIONS’ then current Notice Regarding Telovations’ IP Voice Services (the “E911 Notice”), a copy of which is available on TELOVATIONS’ web site at www.telovations.com. Customer acknowledges and agrees that it has read and reviewed the E911 Notice. CUSTOMER IS HEREBY FURTHER ADVISED THAT, AS INDICATED IN THE E911 NOTICE, EMERGENCY 9- 1-1 SERVICE WILL NOT FUNCTION OR BE AVAILABLE WITH THE LOSS OF ELECTRICAL POWER OR IF THE BROADBAND CONNECTION IS NOT OPERATIONAL. EMERGENCY 9-1-1 SERVICE WILL NOT BE AVAILABLE AT ANY REMOTE LOCATION IF INTERNAL USERS ARE ALLOWED TO USE THEIR VOIP (VOICE OVER INTERNET BASED) PHONES REMOTELY. CUSTOMER ACKNOWLEDGES AND AGREES THAT TELOVATIONS HAS ADVISED CUSTOMER OF THESE LIMITATIONS AND CUSTOMER ACCEPTS THE TELOVATIONS SERVICES WITH THESE LIMITATIONS. If Customer is not comfortable with the limitations of the 911 dialing service, Customer should consider having an alternate means of accessing traditional 911 or E911 services.
8. Regulatory Agency Determination. In the event that any regulatory agency with authority over the TELOVATIONS Services makes any determination that the provision of the TELOVATIONS Services as contemplated in this Agreement are unlawful or if any such agency takes any action that imposes additional obligations on TELOVATIONS, or increases the costs to TELOVATIONS, then TELOVATIONS shall have the right to (i) terminate this Agreement without liability upon written notice to Customer; or (ii) pass such increased costs through to Customer.
9. DISCLAIMER OF WARRANTIES. TELOVATIONS AND ITS THIRD PARTY SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE TELOVATIONS SERVICES, SOFTWARE, TECHNOLOGY OR ANY OTHER PRODUCTS OR SERVICES OTHERWISE PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. TELOVATIONS DOES NOT WARRANT THAT THE TELOVATIONS SERVICES, SOFTWARE, TECHNOLOGY OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE VIRUS FREE OR THAT THE USE THEREOF SHALL BE UNINTERRUPTED, ERROR-FREE, IMMUNE FROM OR PREVENT: (i) FRAUDULENT INTRUSIONS INTO AND/OR UNAUTHORIZED USE (INCLUDING ITS INTERCONNECTION TO THE LONG DISTANCE NETWORK); (ii) UNLAWFUL AND/OR UNAUTHORIZED UTILIZATION THAT MAY RESULT IN INVASION OF ONE'S RIGHT TO PRIVACY; AND (iii) IMPROPER, UNLAWFUL AND/OR UNAUTHORIZED UTILIZATION THAT MAY RESULT IN THE LOSS OF OR THEFT OF ELECTRONIC DATA. TELOVATIONS HEREBY MAKES CUSTOMER AWARE THAT THE “RECORD A CALL FEATURE” HAS LEGAL IMPLICATIONS. TELOVATIONS DISCLAIMS ANY RESPONSIBILITY FOR IMPROPER USE OF THIS FEATURE. THE EXTERNAL LISTEN FEATURE MAY VIOLATE STATE OR FEDERAL STATUTES INCLUDING, WITHOUT LIMITATION, CRIMINAL LAW, OR PRIVACY LEGISLATION. TELOVATIONS DISCLAIMS ANY RESPONSIBILITY FOR IMPROPER USE OF THIS FEATURE.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL TELOVATIONS BE LIABLE TO CUSTOMER, END USERS OR AND OTHER ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST PROFITS, LOSS OF SAVINGS, INTERRUPTION OF BUSINESS, LOSS OF TECHNOLOGY OR LOST DATA, HOWEVER ARISING, WHETHER UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF TELOVATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TELOVATIONS’ TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO TELOVATIONS UNDER THIS AGREEMENT IN THE MOST RECENT 12 MONTH PERIOD.
11. Miscellaneous. This Agreement shall be governed by and construed and interpreted in accordance with the laws of The State of Delaware excluding its conflict of laws principles. Neither Party shall have the right to assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may freely assign this Agreement (a) to its Affiliates (so long as the assigning party remains primarily liable hereunder) or (b) to any successor to all or substantially all of such party’s assets (irrespective of the form of the transaction, whether by way of merger, stock sale, asset sale or otherwise). This Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective parties hereto. This Agreement along with all Service Orders shall constitute the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings with respect to the subject matter hereof.
NOTICE REGARDING TELOVATIONS’ IP VOICE SERVICES AND 911-TYPE SERVICES
This notice is to provide you with the latest information on the Telovations emergency services network.
Pursuant to the Federal Communications Commission’s VoIP E911 Order (WC Docket Nos. 04-36 and 05-196, FCC 05-116, released June 3, 2005), ¶¶ 48-49, and Section 9.5(e) of the FCC’s rules, all interconnected VoIP providers are required to “advise every subscriber, both new and existing, prominently and in plain language, the circumstances under which E911 Service may not be available through the interconnected VoIP service or may be in some way limited by comparison to traditional E911 service.”
All Telovations customers are provided emergency services through the public 911 or E-911 network. The challenges in a VoIP (voice over IP) network involve mobility and network reliability. Mobility is an inherent feature within the IP network. However, traditional 911 and E-911 services are built on knowing the exact location of any phone line. With a traditional phone line, your local phone company has a direct connection to the local emergency call center called a PSAP (Public Safety Answering Point). In the VoIP architecture, a phone call to an emergency center can be placed from any network connection. Therefore it is imperative that the location of an IP phone is known in order to 1) complete the emergency call to the proper PSAP; and 2) ensure that the PSAP receives the necessary location information from the caller.
Telovations takes emergency response seriously and is committed to delivering the latest solutions to our customers. Telovations has partnered with Intrado (www.intrado.com) to deliver state of the art VoIP emergency response. With the Intrado solution, emergency calls will be routed to the proper emergency response center and that center will receive all information it is capable of receiving. If the local PSAP is capable of receiving your address information and call back information (E-911 Compliant), then the Intrado network will pass that information. If the local PSAP is not capable of receiving that information, then your call will be answered by an emergency response operator that will collect that information from the caller and pass it on to the local corresponding PSAP. If the caller is unable to relay that information to the emergency response operator, then the operator must rely on a database that maintains your location based on your phone number (caller-id).
In either case described above, Telovations is required to notify you of what your responsibilities are and also what inhibitors there may be when using a VoIP emergency response system.
Your responsibilities:
1. You must notify Telovations any time your address changes. Customers that use a broadband connection that is not provided by Telovations could technically move their network equipment to another broadband provider and address without our knowledge. Your emergency response will not work if you do not notify Telovations of the move and Telovations validates your new address for the proper emergency response system.
2. Do not move individual VoIP phones to other networks without notifying Telovations Customer Service.
Telovations is equipped to handle both of the above scenarios. However, it is your responsibility to notify Telovations in either case.
Other considerations:
1. Your system will be inoperable in the event of a power failure unless battery back-up is used on the network connection and the attached VoIP phones. Telovations can supply a battery back-up solution if you are interested. However, if there is a power failure that affects a large geographical area, then the telephone network may not be able to connect your call.
2. Broadband connections that are not supplied by Telovations are not designed to be 100% reliable. Your broadband connection could go down at any time and you will not have access to emergency services during the outage. You may want to consider upgrading to a Telovations supplied network connection. These network connections are designed specifically for a voice network and are fully managed.
3. If a phone is moved from your address that is on record, the location of the new phone will not be supported by the Telovations emergency response network.
4. Along with this letter, you will have received warning stickers. Telovations advises you to affix these warning stickers to each IP phone located on your premises.
5. If your service is terminated for any reason, including non-payment, your emergency service will not be available.