Capital Voice Service Terms and Conditions
Voice Communications Service Agreement
This Voice Communication Service Agreement (this “Agreement”) is made effective as of the commencement date of the related Service Agreement and between (“Customer”) and Capital Voice Services at address 89 Cabot Court, Suite J Hauppauge, NY 11788 (“Service Provider”)
1. Services Provided. Beginning on the commencement date of the related Service Agreement , Service Provider will provide to Customer the serviced detailed in Attachment I (collectively, the “Services”):
2. Total Monthly Cost. Customer agrees to pay the fees listed as Monthly Recurring Charges as noted in Service Agreement plus any and all additional incurred incidental charges related to Incidents as described in Section 3, based on Services usage, with fee(s) detailed in Service Agreement. Each additional minute over the committed amount of actual inbound or outbound Services usage will be billed the rate listed as “Inbound/Outbound Service Minutes” in Service Agreement or if the aforementioned is not present, the related per-unit fee for additional usage of $0.02 per minute.
3. Service Adjustments. At any time Customer can request adding additional services. The costs of any additional services will reflect the then-applicable fees set by Service Provider. Service Provider uses “Purchase Order” forms for modification of offered services. Executed “Purchase Order” forms by and between Customer and Service Provider will become part of this Agreement and be bound by all conditions contained herein.
4. Payment. In consideration of the services to be performed by Service Provider, the Customer agrees to compensate Service Provider for the services rendered as follows: On an ongoing, and pre-paid basis, Service Provider’s fees for the services specified in Section 1 above will be paid by Customer to Service Provider on the first of every month as long as this Agreement remains in effect. Any and all Service Provider’s fees for incurred “Incidental Charges” will be paid on or before the end of the month that the incident has taken place, and will continue to be billed based on actual usage, as calculated by Service Provider.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 12 percent per year compounded monthly, or the maximum percentage allowed under applicable laws, whichever is less. Customer shall pay all costs of collection, including without limitation, reasonable attorney fees. Binding Arbitration requirements as set forth in Section 7 due not waive the rights of Service Provider to collect payment and/or pursue judgement from Customer for unpaid rendered services that have been compliant with this Agreement. Customer agrees that is shall pay any and all late fees to Service Provider that are due, and non-payment of late fees may result in termination of service for cause.
During the course of this agreement, if Service Provider provides ancillary work to Customer on a per-project basis as agreed upon in an independent scope of work and Customer has authorized such work to be performed at the given terms and rates of that scope of work, Customer shall be responsible for the full payment due for that scope of work. If Customer has defaulted on any payments due that are related to any ancillary work performed, Service Provider reserves the right to collect those payments due as part of this Agreement on a monthly basis until the project fees have been fully collected. Termination of this agreement for cause or without cause shall not waive Service Providers rights to continue to collect payment for authorized project work that has been completed.
If at any time during the term covered by this agreement, if there are payments due to Service Provider totaling $1000.00 or more, Service Provider reserves the right to collect payment on more frequent intervals than the standard monthly billing. In the event that Services provided requires more frequency payments, Service Provider at its discretion may require these payments on a weekly or bi-weekly basis to bring billing up to date for Services rendered to Customer, and these payments will carry the same terms and conditions as outlined in this section.
In addition to any other right or remedy provided by law, if Customer fails to pay for the Services when due, Service Provider has the option to treat such failure to pay as a material breach of this Agreement, and may terminate/cancel this Agreement and/or seek legal remedies to collect payments due. In the event of non-payment, 1) Service Provider reserves the right to limit/throttle any and all services provided to Customer if payment is past-due by 30 days or more, and 2) Service Provider reserves the right to terminate any and all services provided to Customer if payment is past-due by 30 days or more and the balance due is over $1000, and 3) Service Provider reserves the right to terminate any all services provided to Customer for non-payment of Services if payment is past-due by 90 days or more with any balance due owed.
5. Term. The term of this Agreement is based on the selected Term of Commitment in the related Service Agreement. This Agreement will automatically renew on the first day of the following month, every month until Customer informs Service Provider of intent to terminate in writing. For 24 and 36 month term, where allowed by law, upon the end of the current term, this Agreement with automatically renew for an additional term of equal length. Service Provider reserves the right to adjust monthly pricing in an amount no greater than 5% for Services rendered as market forces may require. Market force pricing adjustments for services can be applied no more frequent than once in a 12 month period. This Agreement may be terminated by Customer upon 30 days prior written notice to Service Provider. This Agreement may also be terminated by the Service Provider for breach of any terms contained within this Agreement or for any violations of the Service Provider Acceptable Use Policy (available upon request), including but not limited to using Services for illegal activities, or attempting to gain unauthorized access to Service Provider networks or equipment. For 24 and 36 month term, Customer agrees that in consideration for discounted installation and discounted monthly Services payments, the Customer will be responsible for a termination fee as specified in Attachment I.
6. Entire Agreement. This Agreement together with the Attachments, which are hereby incorporated herein by this reference, contain all the agreements, representations, and understandings of the parties and supersedes any previous understandings commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. To the extent there is any inconsistency between a term of this Agreement and a term of any Agreement, the term of this Agreement will govern the performance of Services thereunder.
(d) Jurisdiction. This Agreement shall be governed by the laws of the State of New York without regard to its choice of law provisions.
(e) Interpretation. Any provision of this Agreement held to be void, illegal, or unenforceable shall be restated to lawfully reflect the parties’ original intent to the fullest extent possible. All other provisions shall remain in full force and effect.
(f) No Third-Party Beneficiaries. This Agreement is an agreement between the Parties, and confer no right upon any other Parties’ employees, agents, contractors or customers, or upon any other person or entity.
g) Notices. Any notice required under this Agreement shall be sent by registered mail, return receipt requested, facsimile, overnight express mail, or personal delivery to the address of the party set forth at the beginning of this Agreement. Notices sent by registered mail shall be deemed effective on the third business day following proof of mailing delivery. Notices sent otherwise shall be deemed effective on receipt. A party may change its address for notices upon thirty days prior written notice.
(h) Assignment. Customer may not assign its rights or obligations under this Agreement without Service Provider’s prior written consent which shall not be unreasonably withheld.
7. Binding Arbitration Requirement.
(a) Upon the event of any breach or dispute other than failure of Customer to make payments to Service Provider (such breaches and disputes are called “Claims” for purposes of this Agreement) that occurs in relation to this Agreement or operations of the Service Provider, or Customer, no legal actions may proceed. Any Claims that do not have specific mention for method of handling in this Agreement must be resolved through Binding Arbitration. If any legal action proceeds despite this condition, this Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding which may be instituted, prosecuted or attempted in relation to any Claims related to this Agreement. Further, each of the parties will indemnify and hold each other harmless against all losses, damages, costs, and expenses, including reasonable attorney fees, resulting from any legal actions related to this agreement. This arbitration agreement is entered into pursuant to the Federal Arbitration Act, 9 U.S.C.- 1-16 (“FAA”). The arbitration shall be conducted by a single neutral arbitrator acting under the administration of American Arbitration Association, and in accordance with the then-applicable United States Arbitration and Mediation Rules of Arbitration. The American Arbitration Association will select the neutral arbitrator as long as this arbitrator has no prior relation to any party involved in the Claim. Any and all costs associated with arbitration will be paid for equally by the Service Provider and Customer. Arbitration with respect to a Claim is binding and no party will have the right to litigate that Claim through a court. In arbitration, parties involved will not have the same rights that apply in court, such as the right to a trial by judge or jury and the right to participate or be represented in proceedings brought by others such as class actions or similar proceedings. In addition, the right to discovery and the right to appeal may also be limited or eliminated in arbitration. All of these judicial rights are waived with respect to claims that have been arbitrated.
(b) Customer and Service Provider agree that any Claims brought against either party in relation to this Agreement by employees, sub-contractors, partners or other affiliates will be also settled by binding arbitration as specified in this Section 7.
8. Limitation of Liability. Service provider is not liable for any indirect, special, punitive, exemplary, or consequential damages of any kind unless proof of specific negligence and malice can be shown. Service provider’s liability to customer on account of any such acts or omissions relating to this agreement shall be limited to proven direct damages in an aggregate amount not to exceed the lesser of $1,000 or the amounts paid by customer for any services during the three month period preceding the incident giving rise to the claim for damages. Any employees, subcontractors, assigns, partners or affiliates that Service Provider may use in the course of providing services will have no liability for acts or omissions relating to this agreement whatsoever. These limitations apply regardless of the form of action, whether in Agreement, warranty, strict liability, or tort.
9. Services Warranty. Service Provider warrants that it will perform the Services to the best effect that the operating environment of Customer equipment and network connectivity will allow as well as perform in accordance with all terms and conditions of this Agreement. For any breach of the foregoing warranty, Service Provider will exercise commercially reasonable efforts to maintain and repair any non-conforming services that were performed within the twenty-four (24) hour period immediately preceding the date and time of Customer’s written notice to Service Provider specifying in reasonable detail such nonconformance. If Service Provider concludes that conformance is impracticable, then Service Provider will refund all fees paid by Customer to Service Provider hereunder, if any, allocable to such nonconforming Services. There are no other warranties, express or implied on any services offered under this agreement.
10. Disclaimers
The express remedies set forth in Section 9 will constitute Customer’s exclusive remedies, and Service Provider’s sole obligations and liability for any claim
(a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or
(b) that the Services were performed improperly.
Service Provider shall not be responsible for impairments to the Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licensees, the interoperability of Customer applications, or other cause reason ably within Customer’s control and not reasonably related to services provided under this Agreement.
I. EXCEPT FOR THE WARRANTIES MADE BY SERVICE PROVIDER IN SECTION 9, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND DELIVERABLES ARE PROVIDED STRITCLY “AS- IS.” SERVICE PROVIDER MAKES NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED. ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STARUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
II. SERVICE PROVIDER DOES NOT WARRANT: 1) THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, 2) THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, 3) THAT THE OPERATION OF A DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G. “ALPHA” OR “BETA” RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. SERVICE PROVIDER DOES WARRANTY THAT IT WILL FIX MATERIAL DEFECTS AS DEFINED IN SECTION 9.
III. Except as may be done in accordance with Section 3, no statement by any Service Provider employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
11. Force Majeure. Service Provider is not liable for failure to perform the party’s obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of Customer’s electricity or Customer’s own independent telephone service. No party is entitled to terminate this Agreement under Section 9 or claim any damages in such circumstances.
