Telnexus Service Agreement

1. Services.

a. Services Provided.  By paying for the Services, you agree to the terms and conditions of this Agreement.  “Services” shall mean the Telnexus Unlimited Two-Way SIP Trunk Service(s) and such other services or equipment provided to you pursuant to this Agreement and the service order form.

b. Service Availability.  The Service shall be available throughout the contracted term of Service, except in the case of scheduled maintenance of the Telnexus network and/or its underlying carrier’s network. Telnexus will use commercially reasonable efforts to notify you in advance by e-mail of any scheduled maintenance. Telnexus may interrupt its provision of Service for unscheduled emergency maintenance without notice.

c. Service Limitations.  Telnexus Service does not include any call waiting, call forwarding or voicemail, nor will the Service provide any of the following call types: 976, 900, or 1010xxx.  Telnexus’s Toll-Free service is intended to be used as a toll-free inbound-only service and does not provide any outbound calling, 911 services, 411 or any operator services.

d. Porting Numbers. Prior to providing Services, Telnexus will require a completed and signed letter of authorization for any numbers or toll free numbers you wish to port. Applicable letters of authorization are attached hereto. In addition, Telnexus will require a recent, applicable copy of your current phone bill which contains your billing telephone number as well as a record of any numbers that need to be ported. Necessary letters of authorization and copies of your current phone bill must be received by Telnexus before Telnexus initiates the port request.

e. Service Activation. Telnexus will work with you to establish an initial service activation date upon which the Services will be activated. This date will be no earlier than the date on which your current voice provider has agreed to port the numbers to Telnexus, and which will typically not be earlier than two (2) to four (4) business weeks after the port request was initiated. Telnexus makes no guarantees about how soon a number can be ported, but will work with its underlying carrier and you to make sure the port date coincides as closely as possible with the service activation date requested by you. Telnexus will attempt to arrange an activation appointment with you on the service activation date, whereupon, a Telnexus representative will contact you to provide relevant information and facilitate test calls. The Service commencement date shall be the date when the voice components are delivered and confirmed by a Telnexus email, whether or not an activation appointment has occurred, and shall be the first date of billing for the Services.

2. Service Term. Telnexus shall provide you with the Services as specified in a service order form, which is incorporated herein by reference, for a service term as specified in the service order form. The term will automatically renew for a successive term of the same duration unless terminated in writing by Telnexus or by you at least thirty (30) days prior to the expiration of the then existing term. If no term is specified in the service order form, the term shall be one year.

3. Service Limitations. Telnexus Services requires a contracted Service address. Telnexus Services may not be moved from a contracted Service address without a prior move order to Telnexus. Should you fail to notify Telnexus of a service move then Telnexus, at its sole discretion, may immediately suspend your service until such time as you submit a move order to Telnexus. Failure to notify Telnexus of an intended service move may result in your service being 911 non-compliant, including incorrect routing of emergency services. All special configurations are subject to Telnexus’s approval and Telnexus reserves the right to terminate this Agreement where proper interoperability testing has not been completed when required. Any traffic deemed to jeopardize the integrity of Telnexus’s network may be blocked by Telnexus

4. Proper Use of Service. You agree to use the Service, including any equipment, only for lawful purposes. Without limitation, you agree not to use the Service or equipment for transmitting or receiving any communication or material of any kind which in Telnexus’ sole judgment 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 or (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 (the uses described in clauses (i) and (ii) above are collectively referred to as “Prohibited Uses”). Telnexus reserves the right to terminate your service immediately and without advance notice if Telnexus has proof that you are using the Service or equipment for a Prohibited Use. Upon any such termination, you shall continue to be responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at Telnexus’ discretion be immediately charged to your credit card. You are liable for any and all use of the Service and/or Equipment by yourself and by any person making use of the Service or Equipment provided to you and agree to indemnify and hold harmless Telnexus against any and all liability for any such use. If Telnexus, has proof that you have used the Service or Equipment for a Prohibited Use, Telnexus may forward the objectionable material, as well as your communications with Telnexus and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.  This service is based on RFC 3261 – “SIP-Session Initiation Protocol” and requires you to conform to this standard. In the event Telnexus determines that you are in violation of RFC 3261 and this violation prevents Telnexus from accurately rating or billing your calls, Telnexus reserves the right to bill you based on estimated usage and rates, determined in Telnexus’ discretion.

5. Proper Use of Toll-Free Service. In addition to the Prohibited Uses described above, you are prohibited from using (or reconfiguring to support such use) either Telnexus toll-free Service or any toll-free number obtained through purchase of the Service in connection with any outbound calls placed by you, or any call types that would result in Telnexus incurring originating access charges, local exchange carrier “DIP” fees or other call types that may be subject to a reverse billing process, 911 or other emergency service calls and all unauthorized or fraudulent communications on pay-per-call numbers, information service calls, directory assistance calls or the like, mass calling events, excessive non-completed and invalid calls and failed calls due to inadequate customer capacity. Telnexus may take immediate action to prevent the aforementioned activities from taking place, including without limitation, denying any Telnexus toll-free Service to particular automatic number identifications or terminating any Telnexus toll-free Services. In the event any calls placed to you via Telnexus  toll-free Service contain a privacy indicator imposed by the originating telephone subscriber, Telnexus may provide call detail information to you, notwithstanding the privacy indication, however, you are prohibited from reusing or selling the toll-free number, using any information derived from the automatic number identification, the called party number or the charge number service for any purpose other than (i) performing services or transactions that are the subject of the originating subscriber’s telephone number, (ii) ensuring network performance, security and the effectiveness of call delivery; (iii) compiling, using and disclosing aggregate information, and (iv) complying with applicable law or legal process.

6. Emergency Services Dialing. You will have access to either Basic 911 or Enhanced 911 as your default emergency calling service as long as the call’s originating automated number identification is a Telnexus assigned enhanced local service telephone number or an enhanced local service telephone number that has been ported to the Telnexus network.

a. Basic 911.  “Basic 911” means the ability to route an emergency call to the designated entity authorized to receive such calls serving the address from where you are using the Services. With Basic 911, the emergency operator answering the phone will not have access to the caller’s telephone number or address information unless the caller provides such information verbally during the emergency call. Accordingly, callers must be prepared to provide both call-back and address information. If the call is dropped or disconnected, or if the caller is unable to speak, the emergency operator answering the call will not be able to call the caller back or dispatch help to the caller’s address. As additional local emergency centers become capable of Enhanced 911 functionalities, Telnexus will automatically upgrade customers from Basic 911 to Enhanced 911 Service.  In limited circumstances, customers equipped with Basic 911 may have their calls routed to the national call center. Please see the description below for an explanation of when this would occur and how this service operates.

b. Enhanced 911.  “Enhanced 911” or “E911” means the ability to route an emergency call to the designated entity authorized to receive such calls, which in many cases is a public safety answering point serving the address from where you are using the Services and to deliver the telephone number and address information automatically to the emergency operator answering the call. With Enhanced 911 service, when a caller from your address dials the digits 9-1-1, the Telnexus telephone number and the address is automatically sent to the local emergency center serving your location. The emergency operators will have access to this information regardless of whether the caller is able to verbally provide such information to the emergency call-taker.  In limited circumstances, customers equipped with Enhanced 911 may have their calls routed to the national call center. Please see the description below for an explanation of when this would occur and how this service operates.

c. National Call Center. Certain Telnexus customers do not have access to either Basic 911 or Enhanced 911. If you do not have access to either Enhanced 911 or Basic 911, emergency calls placed using the digits 9-1-1 will be sent to a national emergency call center. A trained agent at the emergency call center will ask for caller’s name, telephone number, and location and then transfer the caller to the appropriate local emergency center or otherwise determine the best way to provide emergency services to the caller. Like Basic 911, the trained operators answering calls in the national call center will not have automatic access to the caller’s telephone number or address information because the national call center is not equipped to receive, capture or retain your Telnexus telephone number and address, so the caller must be prepared to provide this information.   Your 911 calls may also be sent to Telnexus’s national emergency call center if there is a problem validating the address provided by you during provisioning, if you are located in an area that is not covered by the land line 911 network, or if you have Basic 911 or Enhanced 911 service but these call fails to complete and are routed to the national emergency call center for failover purposes.

d. Disclaimer Regarding 911 Services.

YOU ACKNOWLEDGE AND AGREE THAT TELNEXUS’ SERVICE IS INTERNET BASED AND THAT 911 SERVICES ARE DIFFERENT THAN THAT OF TRADITIONAL WIRELINE SERVICE.  FOR BASIC 911 OR ENHANCED 911 TO BE ACCURATELY ROUTED TO THE APPROPRIATE EMERGENCY RESPONDER, YOU MUST PROVIDE THE TELPHONE NUMBER ASSOCIATED WITH THE UNLIMITED TWO-WAY SIP TRUNKING SERVICE FOR THE ADDRESS.

YOU ACKNOWLEDGE THAT THE TELNEXUS UNLIMITED TWO-WAY SIP TRUNK SERVICE MAY NOT SUPPORT BASIC 911 OR ENHANCED 911 DIALING IN THE SAME MANNER AS TRADITIONAL WIRELINE PHONE SERVICE. YOU ACKNOWLEDGE AND AGREE TO INFORM ALL EMPLOYEES, GUESTS, AND OTHER THIRD PERSONS WHO MAY USE THE SERVICE THAT BASIC 911 AND ENHANCED 911 SERVICES WILL NOT FUNCTION  IN  THE  CASE  OF  A  SERVICE  FAILURE  FOR  ANY  OF  THE  FOLLOWING  REASONS:  (A)  POWER FAILURES, (B) SUSPENDED OR TERMINATED BROADBAND SERVICE, (C) SUSPENSION OF SERVICES DUE TO BILLING ISSUES, AND/OR (D) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN.  YOU FURTHER ACKNOWLEDGE THAT FAILURE TO PROVIDE A CORRECT PHYSICAL ADDRESS IN THE REQUISITE FORMAT MAY CAUSE ALL BASIC 911 OR ENHANCED 911 CALLS TO BE ROUTED TO THE INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. FURTHERMORE, YOU RECOGNIZE THAT USE OF THE SERVICE FROM A LOCATION OTHER THAN THE LOCATION TO WHICH THE SERVICE WAS ORDERED MAY RESULT IN BASIC 911 OR ENHANCED 911 CALLS BEING ROUTED TO THE INCORRECT LOCAL EMERGENCY SERVICE PROVIDER.

TELNEXUS DISCLAIMS ALL RESPONSIBILITY FOR THE CONDUCT OF LOCAL EMERGENCY RESPONSE CENTERS AND THE NATIONAL EMERGENCY CALL CENTER.  TELNEXUS DOES NOT HAVE ANY CONTROL OVER ANY LOCAL EMERGENCY RESPONSE CENTER.  THEREFORE, TELNEXUS IS NOT RESPONSIBLE FOR WHETHER THEY ANSWER CALLS USING TELNEXUS’ 911 DIALING SERVICE, HOW THEY ANSWER THESE CALLS, OR HOW THEY HANDLE THEM.  TELNEXUS RELIES ON THIRD PARTIES TO ASSIST TELNEXUS IN ROUTING 911 DIALING CALLS TO LOCAL EMERGENCY RESPONSE CENTERS AND TO A NATIONAL EMERGENCY CALL CENTER.  TELNEXUS IS NEITHER LIABLE NOR RESPONSIBLE IF THE DATA USED BY A THIRD PARTY TO ROUTE CALLS IS INCORRECT OR PRODUCES AN ERRONEOUS RESULT.  NEITHER TELNEXUS NOR ITS OFFICERS OR EMPLOYEES MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, FINE PENALTY, COST, AND EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF TELNEXUS’ SERVICE, RELATING TO THE TELNEXUS SERVICE, INCLUDING, WITHOUT LIMITATION, 911 DIALING.  YOU WAIVE ALL CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO TELNEXUS 911 SERVICE UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM THE GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT OF TELNEXUS.

ADDITIONALLY, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS TELNEXUS AND ITS AFFILIATES, SUPPLIERS OR AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICES RELATING BUT NOT LIMITED TO THE FOLLOWING: (i) IF A 911 CALL IS ATTEMPTED FROM A LOCATION DIFFERENT FROM THE PREMISES FROM WHICH THE SERVICE IS REGISTERED; (ii) DURING A DISRUPTION OF POWER AT THE PREMISES; (iii) DURING ANY DISRUPTION OF INTERNET CONNECTIVITY TO THE PREMISES; (iv) DURING ANY PERIOD WHERE YOUR SERVICE HAS BEEN CANCELLED OR SUSPENDED FOR ANY REASON (INCLUDING SUSPENSIONS OR CANCELLATIONS FOR FAILURE TO PAY OR OTHER DEFAULT); (v) IF INCORRECT OR INVALID CUSTOMER ADDRESS INFORMATION IS PROVIDED, OR IF SUCH INFORMATION IS NOT UPDATED IN THE EVENT OF A CHANGE IN PRIMARY LOCATION; AND/OR (vi) IF EQUIPMENT PROVIDED TO OR USED BY YOU IN CONNECTION WITH THE TELNEXUS SERVICE FAILS TO FUNCTION OR IS IMPROPERLY (OR IS NOT) INSTALLED OR CONFIGURED.

7. Customer Service.  Telnexus offers varying types and levels of customer service depending on a number of factors, including the Service(s) you are using and the problems you may be experiencing. Telnexus assumes no obligation to provide support services for any third party products or services, or for problems with the Service caused by third party products or services. Unless you have entered into a separate services agreement with Telnexus, Telnexus may change the customer service options at any time.

8. Equipment and Interoperability. If you have purchased or leased equipment from Telnexus or its certified third party leasing company then you must install said equipment in accordance with instructions provided by Telnexus (or its third party vendor). In addition, the equipment must be used solely for the purpose of Service utilization. You are solely responsible to obtain, use, configure and operate any equipment not provided by Telnexus that may be used in association with the Service.

a. Interoperability Requirement. You are required to identify all necessary interoperability requirements for the Service.  The Service interface specification guide is posted at www.telnexus.com. Telnexus takes no responsibility for installation or configuration of your phone system, or connecting your phone system to any Telnexus provided equipment.

b. Inside Wiring.  It will be your responsibility to provide any needed internal wiring or extensions (including but not limited to required conduit, facilities, power, etc.) for the Equipment, phone systems, and phones required to use the service.

c. Rented Equipment. If you have rented equipment from Telnexus, then you shall allow Telnexus reasonable access to the equipment as required to provide the Service.  Equipment may be new or recertified.  All equipment service purchased from Telnexus is subject to the terms and conditions set forth in the manufacturer’s or publisher’s warranty, end-user license, or agreement applicable to such equipment service, with no warranty of any kind from Telnexus.  You shall reimburse Telnexus, on a time and materials basis as documented in an invoice, for the entire cost to repair and/or replace equipment in the event of misuse, failure to exercise reasonable care, altering Telnexus configuration, damage or theft.  If Telnexus equipment requires maintenance not as a result of any of the above causes, Telnexus or its agents shall either arrange to repair the equipment at your premises or ship an equivalent pre-configured replacement to you. You will be responsible for returning the damaged or nonfunctioning equipment to Telnexus within ten (10) days of receiving the replacement equipment or will be charged for the cost of the replacement equipment.   You will not receive compensation for downtime associated with equipment replacement or repair. You will be responsible for returning at your expense any rented equipment not later than ten (10) days after termination of the Service. If rented equipment is not returned in good working condition to Telnexus you will be invoiced for the replacement cost. If you terminate the rental of equipment prior to the termination of a Service term, Telnexus may charge you a twenty percent (20%) restocking fee, as calculated according to the original purchase price of rented equipment.

d. Purchased Equipment. All equipment and equipment provider service purchased from Telnexus is subject to the terms and conditions set forth in the manufacturer’s or publisher’s warranty, end-user license or agreement applicable to such equipment or equipment service, with no warranty of any kind from Telnexus. Should you receive purchased equipment that is damaged or nonfunctioning, you must notify Telnexus within ten (10) days of receipt and obtain a return authorization. Returns will only be accepted on brand new factory-packaged equipment within thirty (30) days of the date equipment was shipped. All equipment must be fully complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. Equipment returned in used or altered condition will not be accepted. After thirty (30) days from initial product ship date, all sales are final. You are responsible for shipping charges to the Telnexus distribution center for all equipment being shipped for return or exchange, and shall be responsible for such equipment until it is received by Telnexus. All returns and exchanges will incur a twenty percent (20%) restocking fee, as calculated according to the original purchase price.

9. Charges for Service. The monthly recurring charge(s) and any non-recurring charge(s) for Service are stated in said service order form. Service charges are exclusive of applicable taxes and surcharges, including the Federal Universal Service Fund surcharge that Telnexus passes on to its customers if it is charged to Telnexus. At its sole discretion, Telnexus may require a security deposit to continue providing Service should your credit profile yield insufficient credit. Additionally, at its sole discretion, Telnexus reserves the right to demand immediate payment by wire and block your voice traffic should Telnexus determine your usage exceeds your approved level of credit. Except for items outlined in this Agreement or in your service order form, Telnexus shall not increase pricing during the initial term of your order, but thereafter Telnexus may increase pricing upon at least thirty (30) days’ written notice. All rates and charges are subject to change immediately in the event there are mandated surcharges or taxes imposed by federal, state or governmental agency.

10. Call Rating. Calls will be rated and priced as local, intrastate, interstate or international long distance based upon the originating and terminating automatic number identification. If Telnexus cannot accurately rate a call due to an invalid or omitted originating  automatic number identification, and its rating jurisdiction is not international, Telnexus will default to rating the call as intrastate.

11. Specific Charges for “Unlimited” Two-Way SIP Trunk Service. Unlimited Definition & Guidelines: Unlimited Two-Way SIP Trunk Service is a business service designed for Small to Medium Sized Business Use.  “Small to Medium Sized Business Use” means use of the “Unlimited” Services as contemplated by this Agreement in a manner consistent with use by a small to medium sized business, which will include, without limitation:  (i) no more than 3,000 combined inbound and outbound minutes per SIP trunk (excluding international or toll free calling); (ii) a maximum of 15 telephone numbers per SIP trunk; and (iii) a registered valid 911 address. Small to Medium Sized Business Use may not include an IP address outside of the United States.   Unlimited Two-Way SIP Trunk Service may be used only for lawful, proper and appropriate purposes and may not be used in any way that is illegal, improper or inappropriate, including but not limited to resale or transfer; auto-dialing; continuous or extensive call forwarding; continuous connectivity; fax broadcast/blasting; telemarketing; predictive dialing; or any other use or activity that is inconsistent with normal small to medium sized business usage.  Telnexus reserves the right to ensure that usage is appropriate and consistent with Small to Medium Sized Business Use. In the event inappropriate use is determined, Telnexus may provide you with notice via your email address of record and allow you the opportunity to cure any inappropriate or inconsistent use within ten (10) calendar days. You may cure by stopping any unacceptable use, buying more trunks in order to comply with Small to Medium Sized Business Use, or change your use of the Service in any other way that is consistent with Small to Medium Sized Business Use.  Additionally, Telnexus reserves the right to in any combination (i) immediately terminate Service, (ii) charge a minimum inappropriate use fee of $500.00 and/or charge $0.05 per minute for all calls made during such periods of prohibited use (plus applicable toll free and international charges), whichever is higher, to your payment method of record, and (iii) all applicable Termination fees described in this Agreement.

a. Unlimited Charges: Unlimited Two-Way SIP Trunk Service as defined above includes, within the price quoted and agreed upon in the underlying service order form or any other duly signed contract between you and Telnexus, appropriate use of: local outbound calling, intrastate outbound calling, interstate outbound calling, toll free outbound calling, and inbound calling. Outbound calling included in the Unlimited Two-Way SIP Trunk Service includes the 48 contiguous United States of America and Canada.

b. Call Duration Thresholds: All per minute rates (interstate long distance, intrastate long distance, local if applicable, 800 domestic) assume at least 95% of calls terminating will be of a call duration of no less than six (6) seconds in length.  If 5% or more of your completed calls are equal to or less than six (6) seconds in length during any billing cycle then Telnexus reserves the right to charge, and you shall pay, a $0.03 charge per short duration call. This charge will be in addition to your current rates.

c. International Rates Excluding Canada: If no rate schedule is attached, international rates are available at www.Telnexus/content/legal. (Please note: the posted international rates may include Canada, however, Canada outbound calling is included with Unlimited Two-Way SIP Trunk Service.)  International per minute rates are subject to change.  Telnexus reserves the right to block all or a number of high cost, international routes. You may request in writing to have this block removed.

d. Alaska and Hawaii Long Distance Rates: Outbound interstate calls terminating to Alaska will be billed at a $.30 per minute rate.  Outbound interstate calls terminating to Hawaii may be included in the Unlimited Two-Way SIP Trunk Service. Outbound calling to Hawaii not included will not be billed in any amount greater than a $.019 per minute rate.

e. 800/Toll-Free Domestic Rates: Domestic 800/toll-free inbound calls are billed at the quoted flat, per-minute rate or rate schedule. 800/toll-free service is only available with 800/toll-free telephone numbers provided by or ported to Telnexus’s network.

f. 800/Toll-Free Offshore Rates: 800/toll-free inbound calls are rated at the quoted flat per minute rate or rate schedule with the exception of calls originating from the following locations:

Alaska $.45
Canada  $.08
CNMI $.30
Guam  $.15
Hawaii $.05
Puerto Rico $.19
USVI  $.18

g. The per-minute rates for these locations are subject to change every 15 days and updates shall be posted in a revised Terms and Conditions document which may be viewed at http://telnexus.com/telnexus-service-agreement/ .

h. Directory Assistance and Operator-Assisted Dialing: Telnexus’ Unlimited  Two-Way  SIP  Trunk  service  may  provide directory assistance (i.e. 411) and traditional operator assisted dialing.  Specific per call or per minute of use rates may apply.

i. Disconnect Charges: For any request to disconnect or port out a Telnexus assigned number, a non-recurring charge of $5 per number will be charged.

j. Local Number Portability Cancellation Charges:  For cancelled local number portability request more than 48 hours before the Service is fully operational, a non-recurring charge of $6 per number will be charged.  For cancelled local number portability requests within 48 hours of the Service being fully operational, a non-recurring charge of $75 per number will be charged.  For any request to reinstate, within 24 hours, a newly ported phone number to the original carrier, a non-recurring charge of $300 per number will be assessed.

k. Payphone Surcharges:  In the event your 800/Toll-Free telephone number receives any inbound calls originating from a payphone, these calls will be subject to a charge per call.  The charges are based on regulated FCC Payphone Compensation rules.  These regulatory charges (approximately $0.60 per call) will be passed through directly to you.

l. IP originated traffic.  All user traffic must be internet protocol originated.  Traffic identified as non-Internet Protocol originated is subject to incremental $.05 per minute charges.

12. Additional Non Recurring Charges.  In addition to any other quoted non-recurring charges, the following non-recurring charges, if applicable, will apply:

Service Reinstatement Fee: $200.00 plus any charges imposed by underlying carrier(s)
Missed Appointment Fee: $200.00
Rejected Credit Card/Unpaid Check: $40.00 (or legal limit)
Relocation:  Relocation within same rate center is $75.00; Relocation to new rate center is $275.00
Upgrade Charge: Dependent on specific upgrade
Downgrade Charge: Dependent on specific downgrade

13. Billing and Payment.  Telnexus shall bill you for Service rendered at the rates stated in the service order form. The initial billing increment for calls made to a US Domestic location is 6 seconds and the additional billing increment is 6 seconds.  The initial billing increment for calls to an international location besides Mexico is 30 seconds and the additional billing increment is 6 seconds.  The initial billing increment and additional billing increment for calls to Mexico is 60 seconds.  Invoices shall include all applicable federal, state, and local taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against Telnexus,  which shall be payable by you.  However, if you provide proof of your specific tax exempt status in the form of a valid and properly executed tax exemption certificate(s), Telnexus shall not charge applicable taxes due to such exemption, but you remain responsible for, and agree to pay, any and all remaining non-exempt charges.  Telnexus shall commence billing for the monthly recurring charges and usage (the Service) on the service commencement date.  First and second month charges for the recurring Service(s) are billed upon Service commencement. Where applicable, service charges for the first partial month of service will be pro-rated and billed. Call usage charges are billed after the actual calls and usage has occurred.  Payments are due within thirty (30) days of the invoice date.  After thirty (30) days of non-payment, all fees will accrue interest at a rate of one percent (1.0%) per month or any part thereof, or the highest rate allowed by applicable law, and you shall pay all collection costs incurred by Telnexus (including, without limitation, reasonable attorney’s fees). At any point beyond provided invoice due date, where you have failed to make satisfactory payment as so judged by Telnexus, then Telnexus may give you written notification, by email, that you have committed a material breach of the Agreement due to non-payment. Said notification will be provided five (5) business days prior to Service suspension or termination. You must pay all outstanding charges, within said notice period, to avoid suspension or termination of Service. If Service is terminated due to non-payment, then the termination fees described in the Material Breach Section shall apply. In its sole discretion, Telnexus may: (i) require a security deposit to continue the provisioning of Service(s) if your approved level of credit is deemed insufficient; (ii) change payment terms, billing cycle, and/or due date; (iii) demand immediate payment by wire or other means and discontinue Service(s) without notice should Telnexus determine your usage exceeds your approved level of credit; (iv) immediately block your Service(s) if your pre-paid balance is depleted or is at a level that cannot cover your estimated traffic during the time required for you to replenish your prepaid balance, or if you refuse to make any requested  payments.  Telnexus retains the right to bill, including any amended or corrected billing, for the Service(s) for a period of up to twelve (12) months, commencing from the date the billed Service(s) were provided to you.  Telnexus shall retain such billing rights for this twelve (12) month period notwithstanding any prior billing to you for the same period(s) and regardless of any otherwise conflicting billing conditions in this Agreement.  You agree that for the duration of this twelve (12) month period, Telnexus shall not be deemed to have waived any rights with regard to billing for the provided Service(s) that are subject to this period, nor shall any legal or equitable doctrines apply, including estoppel or laches.

14. Billing Disputes. In the event you dispute any invoiced charges, you shall pay in full all charges invoiced by the due date and submit written notification within thirty (30) days of the due date of the invoice in question in the form of an email sent to accounts@telnexus.com, with “Notice of Billing Dispute” in the subject line of the email. Such email notification must include your  contact  information,  the  specific  dollar  amount  in  dispute,  detailed  supporting  reasons  for  the  dispute,  and  any  supporting documentation if available. Telnexus shall respond to you, in writing, within thirty (30) calendar days of receiving a dispute notification from you. Any dispute resolved in favor of you shall be credited as appropriate on the next available invoice.  In the event that any disputed amounts are deemed to be correct as billed and in compliance with this Agreement, you shall be notified in writing that the charges have been deemed valid and legitimate, and the dispute will be considered resolved by both parties; in such cases, if there should be any amount due from you related to the dispute, then all such amounts shall be due and payable immediately. Telnexus reserves the right to deny or delay any and all billing disputes and/or credits if your account is in arrears or otherwise not in good standing.

15. Resumption of Service.  If you request that Service be restored after a suspension or termination, Telnexus has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as Telnexus determines is necessary for its protection, including requiring you to execute a new agreement, pay all past due statements in full, pass Telnexus’s credit approval, and/or make advance payments. New nonrecurring charges also may apply to restore Service.

16. Material Breach.  Telnexus or you may terminate this Agreement and the Service(s) provided hereunder in the event of a material breach that is not cured within thirty (30) days following the delivery of written notice specifying said breach, except in the case of serious material breaches by you, as determined by Telnexus. Such notice from you must be in the form of an email sent to accounts@telnexus.com, with “Notice of Material Breach” in the subject line of the email and your contact information and detailed explanation, including supporting documentation if available, in the body of the email. Such notice from Telnexus shall be in the form of an email to you.  In the event of an uncured material breach by Telnexus, the Agreement and Service(s) shall be terminated without further liability to you, however, in such cases you shall remain responsible for: (a) charges for Service(s) actually and properly received prior to the date of Breach notification, (b) one hundred percent (100%) of the past due balance at the time of termination, and (c) any non-recurring charges originally waived by Telnexus.  In the event of an uncured material breach by you, such as early termination of this Agreement, the following termination fees shall apply: (a) charges for Service(s) actually and properly received prior to the date of Breach notification, (b) the total of monthly minimum commitments for all components of the Service(s) for the remainder of the service order term(s) and any additional early termination fees included in any and all relevant service order form(s), (c) one hundred percent (100%) of the past due balance at the time of termination, and (d) any non-recurring charges originally waived by Telnexus.

17. Termination.  Upon termination of the Agreement and/or the Service(s) not due to a material breach, Telnexus will disconnect, or will cause to be disconnected, the Service(s) if notified by you in writing via email to accounts@telnexus.com not less than thirty calendar (30) days prior to termination of the Agreement and/or Service(s).  In all such cases, you retain the sole responsibility for notifying Telnexus of any and all requests for termination or disconnection of Service(s), including but not limited to the porting out of billable telephone numbers, whether port outs are known or unknown by you; and, you remain responsible for all billable charges related to terminated Service(s) until Telnexus is notified in writing as specified.  Any request by you for cancellation or termination at any time within the term set forth in this Agreement, including: prior to installation, or at any time prior to the Service commencement or activation date, or in the case of early termination by you, will be considered a Material Breach by you and shall be subject to the applicable Material Breach provisions as outlined in the Material Breach section of this agreement. In the event Telnexus determines, in its sole discretion, that your ongoing use of Service(s) or the specific method or technology utilized by you places Telnexus’s network, other customers, partners or the overall businesses of each in jeopardy, Telnexus reserves the right to terminate Service(s) immediately without notification.

18. Limitation of Liability.  EXCEPT AS PROVIDED IN SECTION 19, IN NO EVENT WILL TELNEXUS OR YOU BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THE SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO SIP TRUNK, DEDICATED INTERNET ACCESS SERVICE, EQUIPMENT, AND/OR ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES UNDER THIS AGREEMENT. TELNEXUS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT IS LIMITED TO SERVICE CREDITS NOT TO EXCEED THE FEES PAID TO TELNEXUS BY YOU FOR THE SERVICE PROVIDED.

19. Indemnity.  You shall indemnify and hold harmless Telnexus, its officers, employees, agents, and affiliates from and against any and all alleged or actual losses, costs, claims, liability of any kind, damages (including to any tangible property or bodily injury to or death of any person), or expense of whatever nature, (including reasonable attorneys’ fees) to or by any third party, relating to or arising from (a) the use of the Service provided to you, whether or not you have knowledge of or has authorized access for such use, (b) any damage to or destruction of equipment rented by you that is not caused by Telnexus or its agents, and (c) any material breach of this Agreement by you.  You have the sole and exclusive responsibility for the installation, configuration, security, and integrity of all your systems, equipment, software, and networks (the “Customer Equipment”) used in conjunction with or related to the Service(s) provided by Telnexus.  You therefore shall indemnify and hold harmless Telnexus from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by you or a third-party relating to or arising from the use or operation of the Customer Equipment, whether or not such use is authorized or known by you.  In the event Telnexus grants you access, either by online access, by application programming interface, or access by any other means, to a service ordering/management system and other related electronic tools (collectively, the “Electronic Tools”), you agree that you are fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such Electronic Tools. You therefore agree that you shall indemnify and hold harmless Telnexus from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by you, or a third-party, relating to or arising from the use or operation of the Electronic Tools, whether or not such use is authorized or known by you.

20. No Warranties and Customer Assumption of Risk.  TELNEXUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE TELNEXUS SERVICE (INCLUDING TELNEXUS EQUIPMENT) PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  TELNEXUS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. TELNEXUS EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED WITH THE USE OF THE SERVICE.  YOU HEREBY EXPRESSLY ASSUME THE RISK OF YOUR OR YOUR EMPLOYEES, USERS, CUSTOMERS’, ETC., USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE.

YOU SHALL INDEMNIFY AND HOLD HARMLESS TELNEXUS, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, EXPENSES, COSTS OR DAMAGES OF WHATEVER NATURE ARISING FROM OR RELATING TO THE USE OF ANY TELNEXUS SIP SERVICE RESULTING FROM THE FAILURE OF YOU TO COMPLY WITH THIS SECTION.

21. Dispute Resolution Process and Applicable Law.

a. MANDATORY BINDING ARBITRATION FOR CALIFORNIA RESIDENTS. Any dispute or claim between you and Telnexus arising out of or relating to this Agreement shall be resolved by binding arbitration before a single arbitrator administered by the JAMS or Endispute in accordance with their commercial arbitration rules.  The arbitration shall take place in Alameda County, California and shall be conducted in English.  California law shall apply to substantive questions of law without regard to conflicts of laws. Questions of arbitrability shall be decided by the arbitrator.  The arbitrator’s decision shall follow the plain meaning of the relevant documents and the decision shall be in writing including the legal reasoning and factual basis for the decision. Judgment upon the arbitrator’s decision may be entered in any court of competent jurisdiction following judicial review, if any, as provided for by law. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages.  All claims shall be arbitrated individually and you will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated  claims  in  arbitration.   YOU ACKNOWLEDGE  THAT  THIS  ARBITRATION  PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND OTHER PROCEDURES INHERENT IN ORDINARY CIVIL LITIGATION.

b. MANDATORY BINDING ARBITRATION FOR NON-CALIFORNIA RESIDENTS. Any dispute or claim between you and Telnexus arising out of or relating to this Agreement shall be resolved by binding arbitration under the Federal Arbitration Act.  If the parties are unable to agree upon an arbitrator, then each party shall select an arbitrator with no previous business or personal association with that party, and each of those arbitrators shall select a third arbitrator. The arbitrator(s) shall use the Commercial Arbitration Rules of the American Arbitration Association to administer the proceeding.   California  law  shall  apply  to  substantive  questions of  law  without  regard  to  conflicts  of  laws.  The arbitration shall take place in Alameda County, California and shall be conducted in English. California law shall apply to substantive questions of law without regard to conflicts of laws.  Questions of arbitrability shall be decided by the arbitrator (s).  The decision shall follow the plain meaning of the relevant documents and the decision shall be in writing including the legal reasoning and factual basis for the decision. The prevailing party shall be entitled to an award of reasonable attorney’s fees and costs of suit. Judgment upon the arbitrator’s decision may be entered in any court of competent jurisdiction following judicial review, if any, as provided for by law. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages.  All claims shall be arbitrated individually and you will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration.  YOU ACKNOWLEDGE THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND OTHER PROCEDURES INHERENT IN ORDINARY CIVIL LITIGATION.

22.  Miscellaneous.

a. Complete Understanding.  This Agreement and the service order form (together with any attachments, including any schedules, addendums, price lists, service orders, terms and conditions, service level agreements and acceptable use policies, which may be posted at http://telnexus.com/telnexus-service-agreement/, and which are incorporated herein by reference) constitute the complete understanding of the parties, and supersedes all prior or contemporaneous agreements, discussions, negotiations, premises, proposals, representations, and understandings (whether written or oral) between the parties, with regard to the Service.

b. Governing Law.  This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the State of California without reference to its choice of law principles.

c. Assignment; Binding on Successors.  You may not assign this Agreement without Telnexus’ prior written consent.  This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns.

d. Enforceability.  If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby.

e. Authority to Sign.  If you are an entity any signatory on your behalf certifies that the signatory is an officer or certified representative of you, and as such is authorized to sign the service order form and enter into this binding Agreement.

f. Resale Prohibition. The Service provided shall be for your use only with no authorization for you to resale service to others.  You agree to comply with said prohibition and understand should you fail to adhere to this provision you will be in material breach of this Agreement and Telnexus shall immediately terminate your service.

g. Third Party Beneficiaries. The Parties do not intend by the execution, delivery, or performance of this Agreement to confer any benefit, direct or incidental, upon any person or entity not a party to this Agreement.

h. Agreement Headings. Agreement headings are provided for reference purposes only.

i. Survival. The provisions of this Agreement that, by their nature and content, must survive the completion, rescission, termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement, shall so survive and continue to bind the parties.

j. Waiver. No course of dealing, failure by either party to require the strict performance of any obligation assumed by the other hereunder, or failure by either party to exercise any right or remedy to which it is entitled, shall constitute a waiver or cause a diminution of the obligations or rights provided under this Agreement.  No provision of this Agreement shall be deemed to have been waived by any act or knowledge of either party, but only by a written instrument signed by a duly authorized representative of the party to be bound thereby.  Waiver by either party of any default shall not constitute a waiver of any other or subsequent default.