These terms and conditions shall govern all service quotes, addendum(s) to service quotes and any other contracts or agreements entered into between SkyComm Connect LLC (hereinafter SkyComm Connect), and its customers.
1. Definitions
“Service(s)” means provisioning of voices services, internet access (including shared bandwidth and dedicated lines), domestic, international and toll free termination and origination, conferencing, hosting, server collocation, hardware sales and all related customer support services.
1.1 “Software” means any computer programs or code, software applications, and any other Software provided by SkyComm Connect to customer pursuant to this agreement.
2. Services and equipment
2.1 SkyComm Connect shall provide the services to customer on the terms and conditions set forth in this agreement. SkyComm Connect’s obligations under this agreement are expressly conditioned upon customer's landlord granting SkyComm Connect or its designated agents, contractors or representatives access to the building phone room and roof areas as necessary in SkyComm Connect’s judgment to deliver the services and to install and maintain equipment.
2.2 Required Equipment. Customer understands and agrees that the service requires certain equipment provided by customer such as a sip aware access device, personal computer, an ethernet card and an appropriate operating system (the “customer equipment”), as well as certain equipment provided by SkyComm Connect such as the software, an edge access device, an IP phone or SIP gateway (the “SkyComm Connect equipment”). Customer represents that it owns the customer equipment or otherwise has the right to use such equipment in connection with the service.
2.3 Access to customer's premises. Customer authorizes SkyComm Connect and its employees, agents, contractors and representatives to enter customer's premises (the “premises”) to install, maintain, inspect, alter, repair and remove the SkyComm Connect equipment. All such services shall be conducted at a time agreed to with customer. If customer is not the owner of the premises, upon SkyComm Connect request customer shall supply SkyComm Connect with the owner's name and address, evidence that the customer is authorized to grant access to the premises on the owner's behalf, and (if needed) written consent from the owner of the premises. Customer also grants its consent to SkyComm Connect to contact such owner for the purpose of entering into one or more right of access and/or site lease(s). If customer does not provide access as provided herein, SkyComm Connect shall, at its option, a) declare the full amount for the entire term due and payable immediately, or b) elect to terminate this agreement.
2.4 Ownership Of Equipment. All SkyComm Connect equipment and software shall at all times remain the property of SkyComm Connect or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the SkyComm Connect equipment or software, nor shall customer relocate the SkyComm Connect equipment outside the premises. Customer shall pay to SkyComm Connect the full manufacturer's suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned SkyComm Connect equipment or part thereof, together with any incidental costs incurred by SkyComm Connect relating to the replacement of the SkyComm Connect equipment. Customer hereby authorizes SkyComm Connect to charge customer's visa, mastercard, or other credit card for any such charges. SkyComm Connect may, at its option, install new or reconditioned SkyComm Connect equipment.
2.5 Back-Up Requirements. The installation, use, inspection, alteration, maintenance, repair or removal of the SkyComm Connect equipment and software may result in service outage or potential damage to customer's equipment. If customer does not back-up all existing computer files by copying them to another storage medium prior to such activities, customer understands and accepts the associated risks of not making such a backup. In any event, SkyComm Connect shall have no liability whatsoever for any damage to or loss or destruction of the customer's equipment, peripherals, software or data.
2.6 Non-Recommended Configuration. SkyComm Connect has informed customer of the recommended minimum computer hardware requirements, if any, (the “minimum requirements”) for efficiently operating the service. If customer allows the installation of the service utilizing software/hardware that does not meet the minimum requirements (a “non-recommended configuration”), customer agrees that (i) customer shall not be entitled to customer support relating to any issues other than the quality of the signal delivered to customer's ip phone or sip gateway, and (ii) the following limitations of liability shall apply: SkyComm Connect does not represent or warrant that a non-recommended configuration will enable customer to successfully access, operate or use the service, not that any such installation will not cause damage to the customer's equipment, peripherals, software or data. SkyComm Connect does not assume any liability whatsoever for any damage or failure to install, access or use the service. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this agreement.
3. Installation and software licenses
3.1 Installation Process. SkyComm Connect and or its agents may from time to time, supply SkyComm Connect hardware/software to be installed within the customer premise as requested to deliver the service. Costs associated for the installation of services by SkyComm Connect and or its agents to be defined within the services quote or additional quotes or addendums agreed to by the parties. Customer may choose to self-install the software, hardware and services at customer’s own risk and expense. SkyComm Connect technical and trouble support for customer self-installed services will be charged at the current prevailing wage for those services.
3.2 File Modification. As part of the installation process, system files on customer's computer may be modified. SkyComm Connect does not represent, warrant nor covenant that such modifications will not disrupt the normal operations of customer's computer. For these and other reasons, SkyComm Connect recommends, and customer agrees, that customer will back-up all files in accordance with section 2.5 above, prior to installation of the service. If customer does not back-up all existing computer files, customer understands and accepts the associated risks of not doing so. SkyComm Connect shall have no liability whatsoever for any damage resulting from the above or other file modifications.
3.3 Software.
3.3.1 Non-Exclusive License. If software is provided by SkyComm Connect, SkyComm Connect grants to customer a limited, non-exclusive license to use the software, in object code form only, solely for the purpose of connecting customer's computer(s) or sip aware device to the service. This license will permit such use by customer and any person authorized by customer to use the service, provided that customer shall be responsible for all uses of the service as provided in this agreement. This license will commence upon SkyComm Connect acceptance of customer's subscription for the service and will terminate immediately upon the expiration or termination of this agreement for any reason. Customer will destroy all software and any related written material, together with any copies, promptly upon the expiration or termination of this agreement for any reason.
3.3.2 Copies. Customer may make a single copy of the software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original software. Customer cannot engage in, nor permit, any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the software, all of which are prohibited.
3.3.3 End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed in connection with the service. All end user licenses shall immediately terminate on the date that the service expires or is otherwise terminated.
4. Payment
4.1 Fixed Monthly Service Fees. The cost for services requiring a fixed monthly fee shall be as stated in the service quote and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “fixed service fee(s)”). The fixed service fee for the first month of service shall be due and payable prior to installation of service and if commencement of service occurs on other than the first calendar day of the month then the fixed service fee will be prorated by the number of calendar days remaining in the month. Thereafter, the fixed service fee is due and payable in advance on the first day of each month and shall be considered late if not received by SkyComm Connect by the tenth calendar day of each month.
4.2 Variable Monthly Usage Fees. The cost for services based on the usage by customer and other variable factors shall be computed at the rates stated in the service quote and shall be payable monthly, using a cut-off date selected by SkyComm Connect, in arrears, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “usage fee(s)”). The rates for voice services set forth in the service quote shall be valid for the initial term, provided however, all rates for international services are subject to change at any time by SkyComm Connect without prior written notice. SkyComm Connect may, at its discretion, choose to adjust the rates for voice services to include the cost, if any, of tariffs, taxes or assessments as imposed upon SkyComm Connect by any governmental agency. All usage fees are due and payable on the first day of the month billed and shall be considered late if not received by SkyComm Connect by the tenth calendar day of such month. All rate changes become effective immediately and are posted on the SkyComm Connect website located at www.skycommconnect.com
4.3 Installation Charge And Security Deposit. Charges for any hardware, software, installation, etc., shall be as stated in the service quote as a non-recurring charges “nrc” and shall be due and payable upon ordering the service. An equipment deposit for SkyComm Connect equipment to be used as rental equipment within the customer premises shall be as stated in the service quote and shall be due prior to installation and shall be refunded to customer upon termination of service, provided said SkyComm Connect equipment is returned in good working condition and in its original packaging.
4.4 Agreement To Pay. Monthly payments and any other amounts due to SkyComm Connect may be charged to customer's Visa, MasterCard, American Express or other credit card, and/or electronically debited to customer's bank account, at customer's option. Customer agrees to pay all monthly service fees, usage fees, installation charges, nrc’s and equipment deposits. Customer hereby authorizes SkyComm Connect to charge customer's Visa, MasterCard, American Express or other credit card and/or to electronically debit customer's bank account for all such fees, charges, taxes and payment transaction processing costs. SkyComm Connect reserves the right to change the acceptable forms of payment at its discretion.
4.5 Late Payments/Failure To Pay. If any payment due to SkyComm Connect is not received within 10 days of due date, an administrative charge of 5% of the amount due may be assessed and the service may be discontinued if payment is not received within 30 days of due date. If the service is discontinued, customer will be required to pay a reconnect fee of $150.00 in addition to all past due amounts before the service is reconnected. The administrative charge is intended to be a reasonable advance estimate of SkyComm Connect costs resulting from customer's late payments and non-payments, and is set in advance due to the difficulty inherent in determining the costs associated with any particular late payment or non-payment. SkyComm Connect does not anticipate that customer will fail to make payments on a timely basis. SkyComm Connect does not extend credit to its customer, and the administrative charge is not interest, a credit service charge nor a finance charge. In the event SkyComm Connect, at its sole discretion, elects to use the services of a third party collection agency, the costs of such third party collection agent shall be paid by the customer.
4.7 Price Changes. SkyComm Connect has the right to change its service fee at any time and upon 30 days advance notice unless otherwise stated in the service quote.
4.8 Additional Charges. The service may allow customer to access the internet, on-line services and other information. Customer acknowledges that customer may incur charges while using the service in addition to those billed by SkyComm Connect. For example, customer may incur charges as a result of accessing certain on-line services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of customer.
4.9 Credit Inquiries. Customer authorizes SkyComm Connect to make inquiries and to receive information about customer's credit experience from others, enter this information in customer's file, and disclose such information concerning customer to appropriate third parties for reasonable business purposes. SkyComm Connect reserves the right, in its sole discretion, to refuse to provide service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to customer, without interest thereon, upon the expiration or termination of services assuming all amounts due SkyComm Connect have been paid in full. SkyComm Connect shall have the right to offset against the security deposit, in part or in full, for any amounts due SkyComm Connect.
4.10 Prepayment Option. Customer may prepay any fixed monthly service fees for 12 months and receive a discount of 5%. The amount due shall be the then current monthly fee multiplied by twelve multiplied by 95%. Upon early termination the refund due shall be prorated using the calculation set forth in section 7.1 and the monthly rate upon which the prepayment was calculated.
5. Customer Conduct
5.1 Prohibited Uses. Customer shall not use the service or the SkyComm Connect equipment, directly or indirectly;
5.1.1 for any unlawful purposes; use of the service for transmission or storage of any information, data or material in violation of any united states federal, state or local regulation or law is prohibited, such limitation shall include, without limitation, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or infringes upon the intellectual property rights of any third party;
5.1.2 to post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation;
5.1.3 to access any other person's computer, software or data without the knowledge and consent of such person;
5.1.4 to upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software or other material obtained through the service which is protected by copyright or other proprietary rights without obtaining permission from the owner(s);
5.1.5 to copy, distribute, or sub-license any software provided by SkyComm Connect, except that customer may make one copy of each software program for back-up purposes only;
5.1.6 to service, alter, modify or tamper with the SkyComm Connect equipment or service or permit any other person to do the same unless such person is authorized by SkyComm Connect to do so;
5.1.7 to restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the service, including, without limitation, posting or transmitting any information or software which contains a virus or other harmful feature, or generating levels of traffic sufficient to impede others' ability to send or retrieve information;
5.1.8 to knowingly disrupt the service;
5.1.9 To resell the service or otherwise charge others to use the service; the service is for personal use only and customer agrees not to use the service for operation as an internet service provider or for any other business enterprise in competition with the service;
5.1.10 to connect the sip gateway to any computer outside of customer's premises;
5.1.11 to allow or provide access to adult content material to anyone under the age of 18 years.
5.1.12 Fair Usage Policy. Calls to land lines and mobile devices are included in your subscription and subject to a fair usage limit of 10,000 minutes per subscriber line (sip trunk) per month. Upon exceeding the fair usage limit, SkyComm Connect reserves the right to charge a rate of $0.025 per minute for any overages. In the case of using only bundled trunking services, rates (outside the U.S. and Canada) are charged at the current international rates listed at www.skycommconnect.com as applicable. SkyComm Connect reserves the right to change this fair usage policy at any time. Your continued use of your subscription after expiry of the 30-day period shall constitute your acceptance to be bound by the terms and conditions of the SkyComm Connect fair usage policy.
5.1.13 Call Flooding. To protect the integrity if its network, SkyComm Connect may in its reasonable discretion, and without liability for damages of any type to customer, its affiliates or end users, temporarily block duplicate or repeated numbers dialed in succession, where SkyComm Connect considers the number of attempts to be potentially harmful to the network.
5.2 Termination. SkyComm Connect reserves the right to immediately terminate this agreement and the service if customer engages in any of the activities listed in section 5.1 above or if customer uses the service or SkyComm Connect equipment contrary to any other SkyComm Connect policy. Copies of such policies may be posted online at www.skycommconnect.com. This section 5.2 shall in no way limit SkyComm Connect rights of termination pursuant to section 7.2 of this agreement. Customer agrees to indemnify, defend and hold harmless SkyComm Connect against all claims and expenses (including reasonable attorneys' fees) resulting from customer's use of the services, including, without limitation, the activities listed in section 5.1 above, or from any other violation of SkyComm Connect policies by customer. This provision shall survive the expiration or other termination of this agreement.
6. Service Interruptions
6.1 Prorated Credit. Except as otherwise required by law, customer is entitled to a prorated credit upon request only in the event of a complete failure of the service due to technical malfunction of the system or network operated by SkyComm Connect. Credits shall be applied against future fees payable by customer for the service. (For details, see "Exhibit A: Service Level Agreement ("SLA")" below.)
6.2 Force Majeure. SkyComm Connect shall have no liability, including as set forth in this section, for interruption of the service due to circumstances beyond SkyComm Connect control, including, without limitation, acts of god, flood, natural disaster, regulation or governmental acts, fire, civil disturbances, strike or weather.
7. Automatic Renewal And Termination
7.1 Termination By Customer. The terms of this agreement shall be as stated in the services quote beginning on the date of installation and shall automatically renew for a period equal to the initial term on each anniversary unless written notice of cancellation is received by SkyComm Connect sixty (60) days prior to the end of each term for all other services billed by a fixed service fee. Customer may only terminate prior to the end of the term stated in the services quote by giving written notice to SkyComm Connect and by payment of a fixed service fee termination amount equal to the number of months remaining in the term times the amount of the monthly fixed service fee (“fixed service fee termination amount”). For services billed pursuant to usage fees customer may only terminate prior to the end of the term stated in the service quote by giving written notice to SkyComm Connect and by payment of a usage fee termination amount equal to the number of months remaining in the term times the average of the prior three (or if less than three months have elapsed, using the actual number of months elapsed) month's usage fees (“usage fee termination amount”). All such types of termination fees described herein shall collectively or individually be known as termination fee(s). Any termination notice received by SkyComm Connect which is not accompanied by the payment of the applicable termination fee shall be null and void;
7.2 Termination By SkyComm Connect. SkyComm Connect may terminate this agreement immediately should customer violate any of the terms of this agreement. SkyComm Connect may also terminate this agreement for any other reason by providing customer with written notice of such termination no later than thirty (30) days before the date of termination. In the event that SkyComm Connect terminates this agreement for any reason other than customer's violation of the provisions of section 5.1, service fees and other charges will continue to accrue through the date of termination, but all prepaid service fees and charges for cancelled service will be refunded. If termination is due to violation of the provisions of section 5.1, the termination amount will be equal to the number of months remaining in the term times the amount of the monthly fixed service fee;
7.3 Customer Obligations. Customer agrees that upon termination of this agreement;
7.3.1 Customer will pay SkyComm Connect in full for customer's use of the service and SkyComm Connect equipment up to the later of (i) the effective date of termination of this agreement or (ii) the date on which the service and the SkyComm Connect equipment have been disconnected and returned to SkyComm Connect. Customer agrees to pay SkyComm Connect on a prorated basis for any use by customer of the service or SkyComm Connect for a part of a month;
7.3.2 Customer will permit SkyComm Connect, its employees, agents, contractors and representatives to access customer's premises during regular business hours to remove the SkyComm Connect equipment and other materials furnished by SkyComm Connect;
7.3.4 Customer will ensure the return of all SkyComm Connect equipment to SkyComm Connect. Customer will return or destroy all copies of any software provided to customer pursuant to this agreement. If the SkyComm Connect equipment is not returned, customer agrees to pay the charges referred to in section 2.4 above and SkyComm Connect shall have the right to charge such amounts to customer's visa, mastercard or other credit card, or to electronically debit customer's bank account;
7.3.5 Customer, upon request by SkyComm Connect made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers connected to the SkyComm Connect service during any month.
7.4 Retention Of Rights. Nothing contained in this agreement shall be construed to limit SkyComm Connect rights and remedies available at law or in equity. Customer, upon request by SkyComm Connect , shall provide information in a timely fashion regarding the brand/model of phone system(s), the number of desktop, portable or mobile devices and/or applications (apps) connected to the SkyComm Connect service.SkyComm Connect reserves the right to delete all data, files, electronic messages or other information any reason arising out of or related in any way to the use of the service and/or SkyComm Connect equipment by customer or otherwise arising out of the use of customer's computer.
7.5 Survival. The terms set forth in sections 2, 3, and 4 shall survive the termination of this agreement.
8. Content
There may be some content on the internet or otherwise available through the service which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. SkyComm Connect assumes no responsibility for the content contained on the internet or otherwise available through the service. All content accessed by the customer through the service is access and used by the customer at customer's own risk and SkyComm Connect and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the customer or the customer's employees, affiliates, agents, or representatives. SkyComm Connect specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the service.
9. Users
Customer acknowledges that customer is executing this agreement on behalf of all persons who use the service and/or SkyComm Connect equipment through customer's computer(s), phone systems, pbxs and other telecommunications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this agreement. Customer further acknowledges and agrees that customer is solely responsible and liable for any and all breaches of the terms and conditions of this agreement whether such breach is the result of use of the service and/or the SkyComm Connect equipment by customer or any other user of customer's computer(s), phone systems, pbxs and other telecommunications equipment. Customer agrees to indemnify, defend and hold harmless SkyComm Connect against all claims and expenses (including reasonable attorneys' fees) arising out of the use of the service and/or SkyComm Connect equipment by any other user of customer's computer(s), phone systems, pbxs and other telecommunications equipment.
10. Liability
10.1 Exclusions. Unless otherwise specifically provided in this agreement or otherwise prohibited by law, neither SkyComm Connect, it’s officers, directors, employees or agents, nor any owner or manager of the building or land in which customer's premises is located shall have any liability to customer or to any third party for:
10.1.1 Any direct, indirect, incidental, special, punitive or consequential losses or damages, including, without limitation, loss of profits, loss of earnings or loss of business opportunities, resulting directly or indirectly out of, or otherwise arising in connection with, the use of the service by customer or any other use of the SkyComm Connect equipment or software, including, without limitation, any damage resulting from or arising out of customer's reliance on or use of the service or SkyComm Connect equipment or software, or the mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, transmission or any failure of performance of the service or SkyComm Connect equipment or software; or
10.1.2 Any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting directly or indirectly out of, or otherwise arising in connection with any allegation, claim, suit or other proceeding based upon a contention that the use of the SkyComm Connect equipment or software, or service or a third party infringes upon the copyright, patent, trademark, trade secret, confidentiality, privacy or other intellectual property rights or contractual rights of any third party.
10.2 Application. The liability limitations set forth in this section 10 apply to the acts, omissions and negligence of SkyComm Connect (and its officers, directors, employees, agents, contractors and representatives) which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine. However, the liability limitations set forth in this section 10 shall apply to liability for personal injury or death only to the extent applicable law does not prohibit such limitation.
10.3 No third parties. No third party owner or manager of customer's building or land is a party to this agreement. Thus, no such owner or manager shall be responsible for, nor shall be liable for, the quality of the service or SkyComm Connect equipment.
10.4 Sole remedies. Customer's sole and exclusive remedies under this agreement are as set forth in this agreement.
11. E911
The Federal Communications Commission (“FCC”) requires that SkyComm Connect provide e911 service to all customers who use SkyComm Connect services within the United States of America.
11.1 Customer acknowledges that SkyComm Connect equipment and services do not support 911 emergency dialing or other emergency functions in the same way that traditional land line 911 services work. The differences are detailed in this section 11 and customer hereby agrees to notify any potential user of the services, who may place calls using customer's services, of the 911 limitations described herein. Customer agrees to respond and affirmatively acknowledge that SkyComm Connect has advised customer of the circumstances under which SkyComm Connect e911 service may not be available or may be limited in comparison to traditional 911 emergency dialing. SkyComm Connect advises customer to maintain an alternative means of accessing traditional 911 services.
11.2 Customer acknowledges that the services will not function in the absence of electrical power.
11.3 Customer acknowledges that the services will not function properly if there is an interruption or a lack of bandwidth of customer's broadband or high-speed internet access service.
11.4 Customer acknowledges that the services are not set up to function with out dialing systems including home security systems, medical monitoring equipment, tty equipment, and entertainment or satellite television systems. Customer hereby waives all claims against SkyComm Connect for interruption or disruption of such systems by the services.
11.5 SkyComm Connect e911 service is a mandatory component of all inbound/outbound fax and voice service plans. E911 service is not offered on international numbers, toll free numbers or similar service accessories or add-on plans. E911 service is only available in selected areas. Customers who subscribe to SkyComm Connect e911 service will be required to register the physical location of their equipment (ata or ip phone) with SkyComm Connect, either on the the initial order forms or by contacting SkyComm Connect Customer Support, and agree to update the location whenever the physical location of service changes. Customer acknowledges that SkyComm Connect's only mechanism for routing 911 calls to the correct emergency call taker is the physical location currently registered for the account. Customer acknowledges and understands that any enhanced location information passed to an emergency operator by SkyComm Connect will be based upon the physical location provided to SkyComm Connect by customer.
11.6 Customer also acknowledges that SkyComm Connect e911 service has certain characteristics that distinguish it from traditional, legacy, circuit-switched 911 service. These characteristics may make SkyComm Connect e911 services unsuitable for some customers. Because each customer’s circumstances may vary widely, customers should carefully evaluate their own circumstances when deciding whether to rely solely upon SkyComm Connect e911 service. Customer acknowledges that it is customer’s responsibility to determine the technology or combination of technologies best suited to meet customer's emergency calling needs, and to make the necessary provisions for access to Emergency calling services (such as maintaining a conventional landline phone or wireless phone as a backup means of completing emergency calls). The following characteristics distinguish SkyComm Connect e911 service from traditional, legacy, circuit-switched 911 service:
- SkyComm Connect e911 service will not function if customer's ata or ip phone fails or is not configured correctly or if customer's SkyComm Connect service is not functioning for any reason, including, but not limited to, electrical power outage, broadband service outage, or suspension or disconnection of service because of billing or other issues. If there is a power outage, customer may be required to reset or reconfigure the equipment before being able to use the SkyComm Connect service, including for e911 purposes.
- After initial activation of the e911 service, and following any change of and update to customer’s physical location, there may be some delay before the automatic number and location information is passed to the local emergency service operator. This information is typically populated into SkyComm Connect nomadic e911 databases prior to service activation, but no guarantee can be made that the automatic number and location information will be activated within this schedule.
- The local emergency service operator receiving SkyComm Connect e911 Emergency service calls may not have a system configured for e911 services or be able to capture and/or retain automatic number or location information. This means that the operator may not know the phone number or physical location of the person who is making the SkyComm Connect e911 call. Due to technical factors in network design, and in the event of network congestion on the SkyComm Connect network, there is a possibility that a SkyComm Connect e911 call will produce a busy signal or will experience unexpected answering wait times and/or take longer to answer than 911 calls placed via traditional, legacy, circuit-switched telephone networks.
- If a customer does not correctly identify the actual location where the SkyComm Connect equipment will be located at the time of activation of the service, SkyComm Connect e911 communications may not be directed to the correct local emergency operator.
11.7 Customer acknowledges and understands that SkyComm Connect will not be liable for any service outage and/or inability to dial 911 or any other Emergency telephone number using SkyComm Connect or to access an emergency service operator due to the 911 dialing characteristics and limitations set forth in this agreement. Customer agrees to defend, indemnify, and hold harmless SkyComm Connect , its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to customer in connection with the services, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of, customer or any third party or user of the service relating to the failure or outage of the service, including those related to 911 dialing.
12. Indemnification
Indemnification obligation. Customer shall defend (with counsel reasonably acceptable to SkyComm Connect), indemnify and hold harmless SkyComm Connect and SkyComm Connect officers, directors, employees, agents, contractors and representatives from and against any and all claims and expenses, including reasonable attorneys' fees).
13. Privacy Policy
Customer agrees that SkyComm Connect and/or its agents may, from time to time, collect information regarding customer's use of the service and activities on the internet. Customer agrees that such information may be shared with third parties provided that (i) SkyComm Connect does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. Customer expressly grants SkyComm Connect the right to disclose information relating to customer and/or customer's account in response to a subpoena issued in a civil or criminal investigation, litigation, court order or a civil investigation by a governmental entity.
14. Fraudulent Calls
In the event customer connects the services to the public switched network, customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and SkyComm Connect shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the services being provided here under. Customer shall indemnify and hold SkyComm Connect harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the services. Customer shall not be excused from paying SkyComm Connect for services provided to customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the services. In the event SkyComm Connect discovers fraudulent calls being made, nothing contained herein shall prohibit SkyComm Connect from taking immediate action, without notice to customer that is reasonably necessary to prevent such calls from taking place. Notwithstanding, it is understood that SkyComm Connect is under no obligation to investigate the authenticity of calls charged to customer's account and shall not be liable for any fraudulent calls processed by SkyComm Connect and billed to customer's account.
15. Notices
15.1 Controlling Law; Venue. The validity, performance, and interpretation of this agreement will be governed and construed in accordance with the laws of the United States of America and the state of Maryland, without regard to its conflicts of law provisions. The parties will voluntarily appear before and hereby consent and submit to the exclusive jurisdiction of the state and federal courts located nearest to Columbia, Maryland. If any dispute, litigation, or other action arises between the parties with respect to the matters covered by this agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys' fees, expert witness fees and out of pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
15.2 Notices. All notices permitted or required under this agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the services quote or such other address as a party hereto shall notify the other party of in writing. If to SkyComm Connect: telephone: (410) 872-8300 or email: service@skycommconnect.com, attention: Billing Department.
15.3 Counterparts. This agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
15.4 Waiver; amendment; modification. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. This agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
15.5 Enforceability Of Provisions. To the extent any provision or portion of this agreement is determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this agreement or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision or this agreement as a whole.
15.6 Assignment. SkyComm Connect may assign its rights and obligations under this agreement to any party without the consent of customer. Customer may not assign or otherwise transfer its rights or obligations under this agreement without the prior written consent of SkyComm Connect.
15.7 Entire Agreement. This agreement, including the services quote and attachments hereto, constitutes the entire agreement between the parties regarding its subject matter. This agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No other representation, warranty, term or condition, other than as expressly set forth in this agreement, shall be binding on SkyComm Connect.
Exhibit A: Service Level Agreement ("SLA")
SkyComm Connect will provide the following Up-Time commitments:
Core Services: 99.99%
Core services include all mission critical capabilities of the SkyComm Connect platform needed to maintain overall call processing, including the ability route calls from Subscribers to a provider of PSTN termination and the ability to receive originating calls from a DID origination provider and route them to a Subscribers SIP device, or to Subscriber's voicemail or any other system prompt or action as configured by Customer.
Supporting Services: 99%
Supporting services includes all non-mission critical capabilities of the SkyComm Connect platform including Management Portals, Device Provisioning capabilities, and other back office management systems.
Downtime is calculated from the time in which customer notifies SkyComm Connect of an outage, until the time at which the service is reestablished. Downtime does not include outages that occur as a result of scheduled maintenance events.
If Uptime is below the agreed level of Availability for the Service, the Customer is entitled to a credit in an amount equivalent to a percentage of the monthly recurring fee. The credit will be for the specific month for which the Service Level Goal was not met.
- If Experience Level of Service is between 95.0% and 95.9% the Price Reduction in % of Monthly Fee is 5%.
- If Experience Level of Service is between Below 95.0% the Price Reduction in % of Monthly Fee is 10%.
To avoid losing the right to a price reduction the Customer shall submit a claim for a price reduction by no later than the end of the calendar month following the month for which the request is sent.
A customer is not entitled to receive a service credit in the following cases:
- If any downtime was caused by customer initiated actions whether implemented by customer or by SkyComm Connect.
- If any downtime was caused by misuse by the customer and not a failure on the underlying network and physical host infrastructure directly and solely managed by SkyComm Connect.
- If any downtime was due to Scheduled Maintenance.
- If any downtime was due to a Force Majeure event.
- If the customer had his account suspended for any day of the month under analysis caused by non-payment of the any fees.
- Downtime due to the acts or omissions of the customer, its employees, agents, third party contractors or vendors.
- If the downtime was caused by violations of the SkyComm Connect Acceptable Use Policy.
- Any event or condition not wholly within the control of SkyComm Connect.