The terms set forth below (the "Base Terms") along with the terms on the Service Order(s), Exhibits, and any documents attached hereto or referenced or otherwise incorporated herein (collectively "Orders") comprise the IP-NEXT Services Agreement ("Agreement") that governs the provisioning by VoiceNEXT of IP-NEXT Services to Customer. From time to time, the parties will execute one or more Orders for Services, each of which is automatically incorporated into the Agreement and subject to these General Terms and Conditions. The Agreement will set forth the Service Description, Service Term, Customer Locations (if applicable), estimated Delivery Date and any other relevant terms agreed upon the parties. In the event of a conflict between the Base Terms and the terms in any Order, these Base Terms will govern, except where an Order or a provision contained therein expressly states that it will govern over the Base Terms. This Agreement is effective only upon its execution by both parties (the "Effective Date"). Orders are considered to be incorporated as part of this Agreement only upon execution by the Customer and VoiceNEXT.
Note: This Agreement is subject to credit approval by VoiceNEXT. Customer authorizes VoiceNEXT to perform credit checks and check on any and all financial references. Customer will comply with all of VoiceNEXT credit approval policies and procedures and VoiceNEXT retains the right to withhold implementation of the Service under this Agreement pending satisfactory credit approval.
This Agreement will be effective beginning on the Effective Date and ending on the expiration and/or termination of all Services under all Orders, unless the Agreement is terminated earlier in accordance with the terms herein.
The initial term of VoiceNEXT Broadband Internet Service ("Initial Term") shall start as of the Service Start date as defined hereunder and will be for 36 consecutive months unless otherwise specified in applicable Order(s). This term is ONLY for Broadband services (DSL & T1). VoiceNEXT hosted PBX service is provided on both a 36 month term as well a month to month basis with no term commitments.
VoiceNEXT shall notify the Customer as to the date Service is operational and available for the Customer's use ("Service Start Date"), providing Customer fulfills all necessary responsibilities and obligations as outlined in this Agreement and there are no delays arising from issues relating to Customer's current relationship or configuration with current provider(s).
Unless the Customer notifies VoiceNEXT to the contrary within five (5) business days after the Service Start Date, the Service shall be deemed accepted by the Customer as of the Service Start Date. Any Customer provided equipment and/or facilities not being installed, operational, or otherwise available for use by the Service Start Date shall not be grounds for the Service not being accepted by the Customer. The penalty for breaking the term onVoiceNEXT Broadband Internet will be the remaining monthly payments due.
Customer acknowledges that there is benefit from signing a 36 month agreement. This benefit directly relates to a reduction in cost compared to a non-term agreement. As such there are monetary damages for VoiceNEXT that are hard to calculate if this term is broken. Customer will be responsible for damages calculated as follows. For each user(Extension or SIP Trunk) activated there will be a penalty of $360. This penalty will be reduced by $10 for each month of service completed and paid for during this agreement. After 36 months this termination penalty will be zero. Upon renewal this agreement will renew for additional 12 month periods. The early termination during any of these periods shall be $50 per user (Extension or SIP Trunk).
Upon the expiration of the then-current term, each Order will renew automatically for an additional one (1) year term unless either party notifies the other party in writing that it has elected to terminate such Order at least sixty (60) days prior to the end of the then-current term for the applicable Order.
Effective as of the Service Start Date, for all usage of the Service, whether such usage is authorized or known by the Customer, the Customer shall pay the charges set forth on the applicable Order ("Charges"). Usage-based Services will be invoiced monthly in arrears and all other Services will be invoiced monthly 30 days in advance. Customer will pay all amounts owed promptly upon receipt of invoice but in no event later than the date specified on the invoice and will send its payments to the address specified on the invoice. A late payment fee shall be applied on balances that remain unpaid thirty (30) days following the invoice date, in the amount of the lesser of: (a) one and one-half percent (11⁄2%) per month of the amount of the late payment starting from the invoice date: or (b) the maximum amount allowed under applicable law.
In addition, VoiceNEXT may suspend any Services for any period during which any invoices for any Services are due but unpaid. If Services are suspended the greater of $150 or 10% of average monthly recurring charges will be required for reconnection.
In addition to charges for the Services, Customer will pay VoiceNEXT for all excise, sales, use or other taxes, fees or charges applicable to the Services, all of which will be paid by Customer in addition to other amounts owing. Such taxes, fees and charges will be separately stated in the applicable monthly invoice.
The Customer shall incur an installation or other specified one-time Charge as of the date VoiceNEXT commences the work for which that Charge applies.
Questions concerning any invoice must be brought to the attention of VoiceNEXT in writing within thirty (30) days of the invoice date.
The Charges do not include any applicable federal, state, or local taxes, fees, tariffs and surcharges, or any charges that may apply for the use of the Internet. Unless the Customer provides a valid exemption certificate to VoiceNEXT, the Customer shall pay such applicable taxes, fees, tariffs and surcharges upon receipt of an itemized invoice.
The Customer shall be liable to VoiceNEXT for any and all costs and /or expenses incurred directly or indirectly, including reasonable attorneys' fees and expenses, in collection or attempted collection of any amounts due. Charges refer to US Dollars and payment shall be made by wire transfer or by check drawn on a bank located within the US.
Customer shall deposit with VoiceNEXT as a security for performance of Customer's obligations in an amount equal to one (1) month's projected recurring fees as set forth on the applicable Order(s) (the "Security Deposit"). The Security Deposit is due and payable upon the signing of this Agreement. VoiceNEXT shall not be required to maintain the Security Deposit in a separate account, except as may be required by law. Customer shall not be entitled to interest on the Security Deposit.
If Customer's actual recurring fees increase or Customer's required monthly payments are received more then five (5) days after the payment date for (2) consecutive months, VoiceNEXT, in addition to its other remedies hereunder, shall be entitled at its sole discretion to increase the required security deposit and require, by written notice, that the Customer provided such additional amount. Within three (3) business days after such written notice, Customer shall deposit with VoiceNEXT cash in the amount sufficient to restore the Security Deposit to its original or required increased amount. Customer's failure to do so shall constitute a material breach of this Agreement.
VoiceNEXT will waive the security deposit provision if the Customer agrees to be invoiced by ACH or Credit Card.
Customer will comply with its responsibilities to support the Services as specified in all applicable Orders. This includes but is not limited to providing all necessary information and authorizations necessary to fully implement IP-NEXT Service. Customer must from time to time to grant access to business facilities either before or after business hours for system installation and maintenance. Such responsibilities are to be performed at no charge to VoiceNEXT. VoiceNEXT obligations are contingent on Customer meeting its responsibilities.
Customer represents and warrants that a) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; b) it has no contractual or other obligation that (i) restricts or prohibits Customer's execution or performance of this Agreement, or (ii) Customer will breach in connection with the execution or performance of this Agreement; c) it shall perform its obligations in compliance with all applicable laws; d) it shall not use any of the Services for illegal or illicit purposes.
Customer acknowledges it is its responsibility to determine whether the Services will meet Customer's capacity, performance, or scalability needs. Customer is responsible for planning for and requesting changes, including any additional capacity required to support anticipated peaks in demand that may significantly increase telephony demand, transaction volumes, or otherwise increase system resource utilization.
Customer shall use reasonable measures to care for and safeguard all Base Components and other Materials used in the performance of the Services.
The Customer may terminate a Service after the Service Start Date but prior to the end of its Initial Term by providing sixty (60) days' advance written notice to VoiceNEXT. In such event, in addition to paying for all Charges incurred through the date Service is discontinued, the Customer shall pay, by way of liquidated damages and not as a penalty ("Discontinuance Charge"), equal to the monthly charge for the Service (including applicable backhaul charges) multiplied the number of months remaining in the Initial Term, if applicable. Customer acknowledges and agrees that the Discontinuance Charge reflects a reasonable estimate of the damages incurred by VoiceNEXT as a result of an early termination, and is not a penalty. The Customer may cancel a Service prior to the Service Start Date by providing prior written notice to VoiceNEXT. In such event, the Customer shall pay (i) for all Charge incurred through the date of cancellation, and (ii) the Discontinuance Charge.
In addition to any other remedies available, VoiceNEXT may immediately terminate this Agreement in the event of a breach by the Customer of this Agreement, of the Software License, or of any other agreement between the parties. A breach by the Customer includes, but is not limited to, the following: (i) initiation of proceedings by the Customer in voluntary bankruptcy; (ii) initiation of proceedings against the Customer in involuntary bankruptcy which are not dismissed within sixty (60) days of initiation; (iii) the appointment of a receiver or trustee for the Customer, (iv) the Customer's insolvency; (vi) nonpayment of any amounts due to VoiceNEXT under this Agreement or under any other agreement between the parties for the Service, is not received by VoiceNEXT within ten (10) days following the payment date.
Upon any termination, the Customer shall (i) immediately cease utilizing the Service, (ii) immediately return any Equipment and/or Service Agreement Software, (iii) permit VoiceNEXT to have access to remove any Equipment from the Customer's premises, (iv) pay VoiceNEXT for all Charges incurred by Customer through the date Service is discontinued, and (iv) if such termination occurs prior to the end of its Initial Term, pay the Discontinuance Charge. If Customer does not return VoiceNEXT owned Equipment and/or Software within thirty (30) days of termination, Customer shall be invoiced the un-depreciated value of such item(s).
Any dispute arising in connection with the interpretation or enforcement of this Agreement shall be resolved by compulsory binding arbitration under the auspices of and in accordance with the commercial arbitration rules of the American Arbitration Association in Newark, New Jersey before a single arbitrator to be selected by mutual agreement of the parties or, failing such agreement, by AAA from a list of three arbitrators proposed by each side. The decision of the arbitrator will be final and not subject to appeal. The arbitrator shall be empowered to award the prevailing party any remedy available in law or equity not specifically precluded by this Agreement, including without limitation injunctive or declaratory relief. The losing party shall be responsible for all arbitration fees and costs. Disputes for non payment of invoices will not be Arbitrated.
In the event that any party is required to commence an action or arbitration to interpret or enforce any of the terms of this Agreement, this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to any choice or conflicts of laws provisions, and the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs.
Customer agrees to give VoiceNEXT a minimum 30 days written notice to terminate service.
VoiceNEXT represents and warrants to Customer that:
a. VoiceNEXT will provide the Services using reasonable care and skill and in accordance with the applicable Orders; and
b. VoiceNEXT has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
Note: The warranties in this section are the exclusive warranties from VoiceNEXT. They replace all other warranties, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
VoiceNEXT does not warrant uninterrupted or error-free operation of any Service or that VoiceNEXT will correct all defects.
VoiceNEXT provides Materials, non-VoiceNEXT products, and non-VoiceNEXT Services "AS IS" WITHOUT WARRANTIES OF ANY KIND. However, non-VoiceNEXT manufacturers, suppliers, or publishers may provide their own warranties to Customer.
In the event any usage of the Service is interrupted or fails due to any fault of VoiceNEXT, including if due to the Equipment, but excluding if due to the Software ("Interruption"), VoiceNEXT sole obligation, and the Customer's sole and exclusive remedy, with respect to the Interruption shall be for VoiceNEXT if requested by the Customer, to provide a pro rated credit for the period and for the portion of the Services that is interrupted or fails. VoiceNEXT obligations to Customer with respect to a particular interruption start upon VoiceNEXT receipt of Customer's notification of the interruption and end upon service restoration. In no event shall VoiceNEXT be liable for any unauthorized access by a third party to Customer's computer network or data, loss of profits or data, or for any incidental, special, exemplary, or consequential damages. VoiceNEXT maximum liability for any damages arising out of or in any way related to this Agreement or the Service, Software, or Equipment shall not exceed the total charges for the Service provided within a Service Order during the month in which such liability arises.
Headings - The headings of the various sections of this Agreement have been inserted for convenience only and shall not affect the interpretation of this Agreement.
Survival - Any of these terms and conditions which by their nature extend beyond the Agreement termination or expiration remains in effect until fulfilled and applies to both Customer's and VoiceNEXT respective successors and assigne
Severability - If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired thereby, so long as the remaining provisions of this Agreement still express the original intent of the parties. If the original intent of the parties cannot be preserved, this Agreement shall either be renegotiated or terminated.
Assignment - Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other. Any attempt to do so is void. Neither party will unreasonably withhold or delay such consent. Nevertheless, VoiceNEXT may assign or transfer this Agreement, in whole or in part, to any Affiliates or to a successor organization by merger or by acquisition of its stock or assets without the consent of Customer. VoiceNEXT is also permitted to assign its rights to payments under this Agreement without obtaining Customer's consent.
Force Majeure - Except for payment obligations hereunder, neither party is responsible to fulfill its obligations to the extent due to causes beyond its reasonable control, such as, for example only, fires, floods, storms, earthquakes, terrorism, or war.
Waiver - The failure of one party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver, nor shall it deprive that party of the right to insist later on adherence thereto. Any waiver must be in writing and signed by an authorized representative of the waiving party.
Notices - All notices and deliveries required or permitted to be made hereunder shall be effective when delivered to the recipient and shall be sent by certified or registered mail, return receipt requested (which shall be effective upon depositing in the U.S. Mail), postage prepaid, or by nationally recognized express courier service (providing evidence of receipt or refusal, shall be the date on which said notice is deposited with such express courier service for overnight delivery). If the last day within which the Notice required or permitted to be given falls on Saturday, Sunday or a holiday, the time for giving such Notice shall be extended until the next business day.
Geographic Scope - Although it is possible that Customer's infrastructure may be accessed outside of the United States of America, VoiceNEXT delivery of the Services will only occur within the United States of America, and VoiceNEXT obligations hereunder are valid only in the United States of America. Customer is solely responsible for complying with all export control and similar laws.
Acknowledgement - Customer allows VoiceNEXT to include its name on our customer listing.
Customer and VoiceNEXT agree that this Agreement, including the Base Terms and applicable Orders, is the complete agreement between the parties relating to the subject matter hereof. This Agreement replaces and supersedes any other prior or contemporaneous agreements or communications between the parties related to the subject matter hereof and shall supersede any pre-printed purchase orders or other business forms submitted by Customer. This Agreement may be executed in any number of facsimile or original counterparts, each of which will be deemed an original but all of which taken together shall constitute one and the same instrument.