This MASTER SERVICE AGREEMENT (“Agreement”), shall govern the provision of Voice over Internet Protocol telephone and hosted PBX services to customer by SpectrumVoIP, Inc. a corporation organized under the laws of the State of Texas and having offices located in Las Colinas, TX.
SCOPE OF SERVICES:
SpectrumVoIP’s VoIP Service is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol (‘IP’) and carried, in part, over high-speed Internet access, also known as broadband Internet service. This service may be generically referred to as ‘voice over IP’. It is separate and distinct from standard Local, Local Toll, and Long-Distance services. ‘Service’ or ‘Services’ includes direct-dialed Voice over IP calling and certain calling and call management features or advanced features associated with the Service, including additional features or advanced features which may be offered at additional costs, and which SpectrumVoIP, in its sole discretion, may add, modify, or delete from time to time.
The VoIP Service is provided on a best efforts basis, as things beyond SpectrumVoIP’s control may affect the Service, such as power outages, fluctuations in the Internet, and your underlying broadband service. Other things may affect Service, such as maintenance. SpectrumVoIP will act in good faith to minimize disruptions to your use of and access to the VoIP Service. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to regulatory treatment different than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
SpectrumVoIP’s VoIP Service requires: (a) specialized customer premises equipment called a VoIP optimized router obtained through SpectrumVoIP to connect to your broadband connection and (b) a broadband connection via DSL, cable, fiber optic, cellular or other wireless broadband with capability of at least 90 Kbps upstream and downstream speed that you have a right to use at your own expense. Since voice over IP is dependent on the broadband connection, the availability of an adequate power supply and correct configuration, SpectrumVoIP does not guarantee that the Service will be continuous or error-free. In addition, Service may, from time to time, be interrupted for equipment, network, or facility upgrades or modifications.
RECOMMENDED SERVICE PARAMETERS:
SpectrumVoIP’s VoIP Service will provide optimal (but not guaranteed) service quality to any number of simultaneous calls, provided each call has a minimum of 90Kbps of upstream and downstream Internet bandwidth available for the duration of each call. SpectrumVoIP does not guarantee the performance, routing, or throughput, either expressly or implied, of any data circuit(s) connectivity with regards to the Public Internet and/or Internet backbone(s). While the voice technology we provide traditionally has functioned at acceptable quality levels when utilizing Public Internet data service, it is susceptible to occasional lapses in phone sound quality and/or other service-degrading issues that are beyond SpectrumVoIP’s control.
REGISTRATION OF PHYSICAL LOCATION REQUIRED:
For each telephone or softphone device that you use for the Service, you must register with SpectrumVoIP the physical location where you will be using the Service. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. For purposes of the 911 Dialing feature, you may register only one location for use with the Service.
SERVICE OUTAGES DUE TO POWER FAILURE OR DISRUPTION:
911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
SERVICE OUTAGE DUE TO TERMINATION OR SUSPENSION OF YOUR SPECTRUMVOIP ACCOUNT:
Service outages due to termination of your account will prevent all Service, including 911 Dialing, from functioning.
SERVICE OUTAGES DUE TO INTERNET OUTAGE OR SUSPENSION OR TERMINATION OF BROADBAND SERVICE OR ISP SERVICE:
Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
SERVICE OUTAGES DUE TO ISP OR BROADBAND PROVIDER BLOCKING OF PORTS OR OTHER ACTS:
Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that SpectrumVoIP is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event you lose Service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.
OTHER SERVICE OUTAGES:
If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
DISCLAIMER OF LIABILITY AND INDEMNIFICATION:
We do not have any control over weather or the manner in which calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither SpectrumVoIP nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless SpectrumVoIP, its officers, directors, employees, affiliates and agents, and any other service provider who furnishes services to you in connection with the VoIP Service, from any and all claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, attorney’s fees) by, or on behalf of, you or any third party relating to the absence, failure, or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to use 911 Dialing or access emergency service personnel.
NO TRADITIONAL 911 SERVICE:
IF SpectrumVoIP E911 SERVICE IS NOT AVAILABLE IN YOUR AREA OR ON YOUR PARTICULAR PHONE NUMBER, THEN THERE IS NO WAY FOR YOU TO REACH EMERGENCY SERVICE BY DIALING 911. You acknowledge and understand that that the Service does not include “911” emergency dialing which operates in the same manner as traditional telephone emergency dialing. In the event of an emergency, you will not be able to use the Equipment or the Service to summon assistance through the traditional 911 system. In case of emergency, you will have to use a different instrument that reaches the 911 emergency system in another way. You agree that you are responsible for informing any individual persons who may be present at the physical location where you utilize the Service, that no traditional 911 dialing is available from your SpectrumVoIP Hosted Service and the Equipment.
INCOMPATIBILITY WITH FAX, CREDIT CARD, AND SECURITY SYSTEMS:
The Service is not fully compatible with fax machines, credit card machines, and security systems. You may be required to maintain a telephone connection in order to use any fax, credit card, or alarm monitoring functions for any security system installed in your business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
CERTAIN BROADBAND AND CABLE MODEM SERVICES:
You acknowledge that there may be some broadband services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
SERVICE TERM INFORMATION:
The initial term (“Initial Term”) of this Agreement shall be equal to the Equipment Rental or Lease Agreement term (typically 3, 4, or 5 Years) from the Service Commencement Date. Unless written notice is given by either party no sooner than ninety (90) days and at least thirty (30) days prior to the expiration of the Initial Term, this Agreement shall automatically renew on a month-to-month basis (“Renewal Term”). At any time during the Renewal Term, either party may terminate this Agreement by giving thirty (30) days written notice to the other party. Service terms may be extended for additional monthly increments due to specific offerings or promotional terms. Service terms are required to offset associated costs of service acquisition, and for SpectrumVoIP to maintain innovative broadband policies and service features for a sustained period. Your initial service term begins once our equipment has been installed, and becomes operational, referred to as your Installation or Activation Date. In cases where an Equipment Rental or Lease Agreement is integrated, the Service Term begins on the commencement date of the third-party Equipment Rental or Lease Agreement. Upon completion of the third-party Equipment Rental or Lease Agreement, SpectrumVoIP will begin billing the “Full MRC” or full amount of the VoIP Package charge and the Hosted PBX Per Station Charge (rental or lease payment). The customer should work with SpectrumVoIP to either replace or purchase the equipment listed on the Equipment Rental or Lease Agreement for its then Fair Market Value. If the customer chooses to renew onto a new contract, no equipment purchase will be necessary and a new contract will replace the prior contract. SpectrumVoIP will deliver the new equipment and ensure that it is in proper working order prior to commencement of the new contract.
INSTALLATION PROCEDURE POLICY:
SpectrumVoIP is not responsible for loss of income or time due to an order not being completed within the time frame desired, service outages, missed CLEC or ILEC appointments, and/or Trouble Ticket dispatches.
PORTING EXISTING NUMBER:
It is the customer’s responsibility to ensure that their old phone company relinquishes their old phone number in a timely manner. Some outgoing phone companies will attempt to delay this process to discourage leaving them. SpectrumVoIP shall assist the customer during this transition but is not responsible for any of the prior carrier’s service charges should the outgoing phone company introduce a delay for any reason.
EQUIPMENT & WARRANTY DISCLAIMERS:
SpectrumVoIP Hosted PBX provides all the required equipment to facilitate your IP communication system as outlined in the service proposal and/or Equipment Rental or Lease Agreement. You agree to comply with all instructions and requirements regarding the use and/or care of our equipment, and to take reasonable measures to protect the equipment at all times. You will provide a secure, air-conditioned space to house the equipment and sufficient electricity (with certified earth ground) to operate the equipment. We will replace any of our equipment that does not perform as specified, at no charge to you, unless we determine, in our sole discretion, that you are directly or indirectly responsible for the SpectrumVoIP equipment failure. Equipment that is rented or leased to you will be covered under the original equipment manufacturers’ limited warranty which is typically 1 year from the date of installation.
In the case of a change in Customer’s primary physical location where the equipment (phones, router, data switch, battery backup) is located, SpectrumVoIP requires a 30 day notice to initiate a move of service to the new location. You may elect to move the equipment yourself or use a third party to move the phones and equipment. If you hire SpectrumVoIP to move your equipment, normal hourly billing rates will apply.
LOCAL NUMBER PORTABILITY:
In the event you are not utilizing a new phone number for your SpectrumVoIP Services, but rather are transferring an existing phone number from another carrier to SpectrumVoIP, the following terms and conditions shall apply:
NUMBER TRANSFER ON SERVICE TERMINATION:
SpectrumVoIP may receive requests from other telephony providers (Requesting Party) acting as agents on your behalf to port a telephone number currently assigned to you to a third-party provider (“Port-Out”). SpectrumVoIP will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and SpectrumVoIP’s or its vendors’ standard operating procedures. Note that you will be responsible for all monthly, usage, and disconnect fees associated with your Service until the Port-Out date of completion or the last date of your service period, whichever comes last.
SpectrumVoIP reserves the right to change, amend, or revise this “AGREEMENT” at any time. Changes or revisions to the “AGREEMENT” will be deemed effective upon posting the applicable revision on its website.
ACCOUNT BILLING & INVOICING & PERFORMANCE MILESTONES:
SpectrumVoIP reserves the right to perform a credit check as part of the qualification process prior to order placement and to either cancel the order without liability to either party or require prepayment of certain charges based on the results of this check.
Billing will commence on your Activation Date (i.e. the day your equipment is installed and inbound call transfers are completed.) You will be financially responsible for all service time thereafter unless SpectrumVoIP is notified within a timely manner of an outstanding issue which SpectrumVoIP deems to justify service credit. All additions to your existing service package are recognized as non-refundable, regardless of usage. Service fees may include applicable state and federal taxes, and telecommunications taxes, surcharges, and fees in addition to the advertised rate.
Bill Accounts that utilize auto payment through a credit card will have all payments charged to the credit card for SpectrumVoIP Services. Each month we will bill your card account for all charges arising during that billing cycle. Your initial use of the Service authorizes SpectrumVoIP to charge the credit card account that you provided to us when you subscribed for the Service. This will include any changed credit card account information given to us if the card expires or is replaced. This authorization will remain valid until 30 days after we receive your written notice terminating our authority to charge your credit card. We may terminate your Service at any time at our sole discretion if any charge to the credit card account that we have on file for you is declined or reversed, or in case of any other non-payment of account charges. In the event of any declined or reversed credit card payments, or in case of any other non-payment of account charges, you will remain fully liable to SpectrumVoIP for all charges accrued before termination and for all charges incurred by us owing to your non-payment. These include, but are not limited to; late fees equal to the lesser of 1.5% per month or the maximum allowed by law, collection costs, declined or reversed credit card expenses, and reasonable attorney’s fees and disbursements. This is in addition to any other remedies that may be available to us by law.
You are responsible for, and shall pay any applicable federal, state, municipal, local, or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or any Equipment. Such amounts are in addition to payment for the Service or Equipment and will be billed to your account. If you are exempt from payment of such taxes, you must provide us with an original government-issued certificate attesting to tax-exempt status. In such a case, your tax exemption will apply only from and after the date we receive the qualifying tax exempt certificate. If we honor your tax exempt certificate, you agree to defend, indemnify, and hold us harmless from and against any claims or penalties imposed against us by any taxing authorities in connection with your subscription for the Service or your use thereof. SpectrumVoIP charges for its service continuously, regardless of whether or not you are using it, because we continue to maintain your connection, provisioning, and telephone interoperability, and keep voicemail and files you have saved in your account on our servers. This is also true of accounts that are Frozen (denied access) due to non-payment.
Should you opt to terminate your SpectrumVoIP service(s), you must contact us via telephone on the effective date. All disconnection requests will be processed on the date the request is received, providing SpectrumVoIP has received proper notification per the terms outlined in Termination – Cancellation Policy section. This applies to both total account and single service terminations. Broadband services are also subject to our Disconnection Policy.
Bill Accounts will be invoiced 10 days prior to the start of each regular monthly service period. Exceptions may include the initial or final invoice for a particular service. Payment is due prior to the beginning of the service period billed, as indicated by the invoice’s Due Date. All payments will be applied to the oldest unpaid invoice in relation to your account’s bill cycle. For example, if your Bill Account’s Invoice Date is the 1st of the month and payment remains past due until the 15th, Accounts Receivable will apply your payment back to the previous month, forwarding your Due Date for current charges to the 1st of the following month. You will need to make another payment before the 1st to keep your account from becoming past due again. If a payment in any form is recovered or otherwise not paid by your financial institution, there will be a Returned Payment Fee.
Bill Accounts that use credit cards for payment are automatically set up for autorenewal by default, using the credit card information provided during the order process. To update your credit card information, you will need to contact SpectrumVoIP Customer Care. SpectrumVoIP will make every effort to process auto renew payments from your credit card or checking account 7 days prior to each invoice’s due date. SpectrumVoIP reserves the right to charge the credit card on file if your check payment is cancelled, fails to process through the Automated Clearing House (ACH), or if your account, regardless of the auto renew status, remains past due.
SpectrumVoIP reserves the right to terminate Bill Accounts that remain past due at its final discretion. Upon termination, services on the account will be discontinued and all files will be removed from our servers without further notice. Any applicable Termination or Cancellation Fees will be applied and due at that time.
If you wish to reinstate service with SpectrumVoIP, you will be required to pay all outstanding charges from the inception of your service continuously to the current month, which is always paid in advance, in addition to possible reactivation fees. If your account is permanently deleted, your username and telephone extension number(s) may be reassigned. If you wish to reinstate your account, you will be subject to any and all installation and setup charges in effect at the time of order placement, as well as any pertinent outstanding charges from your former account.
LIABILITY & LIMITATIONS:
SpectrumVoIP is not liable for any costs, expenses, losses, or damages, either general, special, actual, consequential, or incidental, that you may suffer or that some other person may suffer and claim against you resulting from the following: use, misuse, or service outage; customer premise hardware; your actions or activities, whether legal or illegal; the actions or activities of any other SpectrumVoIP customer, whether legal or illegal; or any other goods or services provided by SpectrumVoIP or any of its vendors. In no event shall SpectrumVoIP be liable to you under this Agreement or in relation to any matters in any way connected with this Agreement in an amount that exceeds the service fees you have paid in the preceding year.
The technical support that SpectrumVoIP provides is limited to the connectivity itself and assistance with configuring your phones to work with our services. Support for other applications and uses is not provided or implied.
Call recording presents special technical challenges. Therefore, most hosted PBX providers do not offer call recording services. Call recordings may be intentionally or unintentionally deleted or permanently lost due to the failure of data storage systems or other equipment. SpectrumVoIP provides call recording capabilities on a best effort basis only, and does not make any warranty concerning the reliability, availability, or audibility of any call recording made on the SpectrumVoIP hosted PBX system. Call recording may present special legal requirements, and you acknowledge that it is your responsibility to research and comply with any Federal, State, or local laws governing the creation or usage of call recordings, call monitoring, or any other feature that may require legal or regulatory compliance. Some states require that all parties in a recorded telephone conversation are notified of the recording, and it is your responsibility to ensure that appropriate audio announcements are used whenever required to ensure legal compliance.
MUTUAL HOLD HARMLESS & INDEMNIFICATION:
Customer agrees to indemnify and mutually hold harmless and defend SpectrumVoIP and its directors, officers, employees, and agents from and against any action, claim, demand, or liability, including reasonable attorneys’ fees and costs, arising from or relating to the telephone system, email, network, servers, PC’s, or any acts or omissions of Customer.
We will not be in violation of this Agreement or otherwise liable for any delay, failure to perform or equipment or property damage, loss, destruction or malfunction, or any consequence thereof, caused by anything beyond our reasonable control, including, without limitation, fire; earthquake; flood; weather; acts of God; labor disputes; utility curtailments; power failures; cable cuts; failure caused by telecommunications or other Internet provider(s); Handsets or other Services Related Products (including Mobile Related Products); worms, Trojan horses, viruses, or other destructive code or software; explosions; civil disturbances; terrorism; vandalism; governmental actions; or shortages of equipment or supplies (collectively, “Events of Force Majeure”).
ARBITRATION & CHOICE OF LAW OR JURISDICTION:
Any disputes greater than $7,500 that arise between Client and Company with respect to the performance of this contract shall be submitted to binding arbitration by the American Arbitration Association, to be determined and resolved by said association under its rules and procedures in effect at the time of submission, and the parties hereby agree to share equally in the costs of said arbitration. The final arbitration decision shall be enforceable through the courts of the State of Texas. In the event that any court of competent jurisdiction holds this arbitration provision unenforceable, then this contract shall be as binding and enforceable as if this paragraph were not a part thereof. The party losing the arbitration shall reimburse the party who prevailed for all reasonable attorneys’ fees and all reasonable expenses (as determined by the arbitrator) incurred by the prevailing party in connection with the arbitration proceedings.
Company and Client both agree that they shall not, without prior written consent of the other party, willfully disclose to any third party any information that is disclosed by Client to Company, or by Company to Client, that is labeled or clearly designated by Client or
Company as confidential or proprietary information. These restrictions, however, will not apply to information that has become known to the public generally through no fault or breach of Company or Client, or that Company or Client regularly gives to third parties without restriction on use or disclosure.
This Agreement may not be assigned by either party without the prior written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding and inure to the benefit of the heirs, successors, and assigns of the parties hereto.
Termination policy is effective only if the customer chooses to purchase the equipment. It is the responsibility of the account holder to notify SpectrumVoIP of cancellation via certified mail. SpectrumVoIP reserves the right to accept request for termination via email or phone call but this type of request will not be deemed official until SpectrumVoIP acknowledges the termination request via a confirmation letter or email to be sent to the customer. Returning hardware, completion of service term, transferring numbers, or cessation of payment does not constitute notification of cancellation. For Customers who cancel service within an active service term, the following charges will apply:
All customers terminated for any reason are liable for any and all outstanding funds due to SpectrumVoIP at the time of service termination, including but not limited to rendered service, hardware, and installation fees.
SpectrumVoIP is committed to providing quality Hosted PBX Services. However, SpectrumVoIP is not ultimately responsible for the quality of your personal computer or any modifications you make to any equipment we supply. We are committed to solving your problems, but we are not responsible for failings in individual Operating Systems and custom configuration of Operating Systems, Operating System components, software, network hardware, or inside wiring.
Spectrum’s eFax is a free service. Because of inherent compatibility issues with faxing through VoIP networks, this free service is unsupported. If you send a significant amount of faxes or if you need the convenience and reliability of a standard fax machine, we recommend upgrading to our sFax service which provides a specialized fax adapter for use with your fax machine.
Contact us for more information.