1.1 Submission and Acceptance of Customer Order(s). Customer may submit requests for Service in a form designated by Voyss Solutions® (“Customer Order”). The Customer Order shall contain the duration for which Service is ordered (“Service Term”) and pricing for Service; Service will continue on a month to month basis at the expiration of the Service Term at Voyss Solutions’ then current rates. Voyss Solution will notify Customer of acceptance (in writing or electronically) of the Customer Order and the date by which Voyss Solutions® will install Service (the “Customer Commit Date”); renewal Customer Orders will be accepted by Voyss Solutions’® continuation of Service. If Customer submits Customer Orders electronically, Customer shall assure that any passwords or access devices are available only to those having authority to submit Customer Orders.
1.2 Credit Approval and Deposits. Customer will provide Voyss Solutions® with credit information as requested. Voyss Solutions® may require Customer to make a deposit as a condition of Voyss Solutions’® acceptance of any Customer Order or continuation of: a) any usage-based Service; or b) any non-usage based Service where Customer fails to timely make any payment due hereunder or Voyss Solutions® reasonably determines that Customer has had an adverse change in financial condition. Deposits will not exceed 1 month estimated charges for Service and will be due upon Voyss Solutions’® written request. When Service is discontinued, the deposit will be credited to Customer's account and the balance refunded.
1.3 Customer Premises. If access to non-Voyss Solutions® facilities is required for the installation, maintenance or removal of Voyss Solutions® equipment, Customer shall, at its expense, secure such right of access and shall arrange for the provision and maintenance of power and HVAC as needed for the proper operation of such equipment.
1.4 Scheduled Maintenance and Local Access. Scheduled maintenance will not normally result in Service interruption. If scheduled maintenance requires Service interruption, Voyss Solutions® will (i) provide Customer 7 days’ prior written notice, (ii) work with Customer to try to minimize Service interruptions and (iii) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. local time. If third party provided local access services are obtained by Customer, Customer will: (i) provide Voyss Solutions® with circuit facility information, firm order commitment information and necessary design layout records to enable cross-connects to Voyss Solutions® Service(s) (such cross connects being provided by Voyss Solutions® subject to applicable charges), (ii) cooperate with Voyss Solutions® (including providing necessary LOA's) in connection with Voyss Solutions® circuit grooming, and (iii) where a related Service is disconnected or terminated, promptly provide Voyss Solutions® a written disconnection firm order commitment from the relevant third party provider.ARTICLE 2. BILLING AND PAYMENT
2.1 Commencement of Billing. Voyss Solutions® will deliver written or electronic notice (a “Connection Notice”) to Customer upon installation of Service, at which time billing will commence ("Service Commencement Date"), regardless of whether Customer is prepared to accept delivery of Service. If Customer notifies Voyss Solutions® within 5 business days after delivery of the Connection Notice that Service is not functioning properly (and such Service is not functioning properly), Voyss Solutions® will correct any deficiencies and, upon Customer’s request, credit Customer’s account in the amount of 1/30 of the applicable MRC for each day the Service did not function properly.
2.2 Payment of Invoices and Disputes. Invoices are delivered monthly. Fixed charges are billed in advance and usage-based charges are billed in arrears. Billing for partial months is prorated. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed). Disputes must be submitted in writing within 90 days from the date of the invoice. If the dispute is resolved against Customer, Customer shall pay such amounts from the date originally due.
2.3 Taxes and Fees. Except for taxes based on Voyss Solutions’® net income, Customer will be responsible for all taxes and fees that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of Service (whether imposed on Voyss Solutions® or any affiliate of Voyss Solutions®). Such charges may be shown on invoices as cost recovery fees. Customer may present Voyss Solutions® a valid exemption certificate and Voyss Solutions® will give effect thereto prospectively.
2.4 Regulatory and Legal Changes. If any change in applicable law, regulation, rule or order materially affects delivery of Service, the parties will negotiate appropriate changes to this Agreement. If the parties are unable to reach agreement within 30 days after Voyss Solutions’® delivery of written notice requesting renegotiation: (a) Voyss Solutions® may pass any increased costs relating to delivery of Service through to Customer and (b) if Voyss Solutions® does so, Customer may terminate the affected Service without termination liability by delivering written notice to Voyss Solutions® within 30 days.
2.5 Cancellation and Termination Charges.
(A) Customer may cancel a Customer Order (or portion thereof) prior to delivery of the Connection Notice upon written notice to Voyss Solutions® identifying the affected Customer Order and Service. If Customer does so, customer shall pay Voyss Solutions’® out of pocket costs (if any) incurred in constructing facilities necessary for Service delivery.
(B) Customer may terminate Service after delivery of the Connection Notice upon 30 days’ written notice to Voyss Solutions® identifying the terminated Service.
2.6 Disconnection Fees. If an End User terminates any Service(s) during the term of the contract, Voyss shall charge a Service Disconnection Fee. Disconnection Fees shall be billed to End User's Credit Card or Bank account when End User notifies Voyss of the cancellation of the Services.
2.7 Conversion Fees. When an End User converts service to or from Voyss Solutions® any and all cost including shipping, labor, equipment, fees, expedite fees, etc., occurring outside the Voyss Solutions agreement shall be billed to End User's Credit Card or Bank account.
2.8 Termination Liability. If the Agreement is terminated any time during the Term, Customer shall pay to Voyss Solutions®, immediately upon demand, (i) all sums then due and unpaid plus (ii) an amount equal to the MRC times the number of months left in the Term.ARTICLE 3. DEFAULT <
If (A) Customer fails to make any payment when due and such failure continues for 10 business days after written notice from Voyss Solutions®, or (B) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may: (i) terminate this Agreement and/or any Customer Order, in whole or in part, and/or (ii) subject to Section 4.1, pursue any remedies it may have at law or in equity.ARTICLE 4. LIABILITIES AND SERVICE LEVELS
4.1 No Special Damages. Neither party shall be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of data or cost of purchasing replacement services, or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the performance or failure to perform under this Agreement or any Customer Order.
4.2 Disclaimer of Warranties. VOYSS SOLUTIONS® MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE.
4.3 Service Levels. The “Service Level” commitments applicable to the Services are found in Voyss Solutions’® Service Schedules for each Service. If Voyss Solutions® does not achieve a Service Level, a credit will be issued to Customer as set forth in the applicable Service Schedule upon Customer’s request. Voyss Solutions’® maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, Customer must contact Voyss Solutions® Customer Service (contact information can be found at www.voyss.com) or deliver a written request (with sufficient detail necessary to identify the affected Service) within 60 days after the end of the month in which the credit was earned. In no event shall the total credits issued to Customer per month exceed the nonrecurring and monthly recurring charges for the affected Service for that month. Customer's sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels applicable to the affected Service.
4.4 Right of Termination for Installation Delay. In lieu of any Service Level credits for installation delays, if Voyss Solutions’® installation of Service is delayed for more than 30 business days beyond the Customer Commit Date, Customer may terminate the affected Service upon written notice to Voyss Solutions® and without payment of any applicable termination charge, provided such written notice is delivered prior to Voyss Solutions® delivering a Connection Notice for the affected Service. This Section shall not apply to any Service where Voyss Solutions® has agreed to construct network facilities in or to a new location not previously served by Voyss Solutions®.ARTICLE 5. GENERAL TERMS
5.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”). In the event Voyss Solutions® is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay Voyss Solutions® for the affected Service for so long as Voyss Solutions® is unable to deliver the affected Service. Force majeure events along with scheduled maintenance under section 1.4 shall be considered “Excused Outages.”
5.2 Assignment. Neither party may assign its rights or obligations under this Agreement or any Customer Order without the prior written consent of the other party, which will not be unreasonably withheld.
5.3 Affiliates. Service may be provided to Customer pursuant to this Agreement by an affiliate of Voyss Solutions®, but Voyss Solutions® shall remain responsible to Customer for the delivery and performance of the Service. Customer’s affiliates may purchase Service pursuant to this Agreement. Customer shall be jointly and severally liable for all claims and liabilities related to Service ordered by any Customer affiliate, and any default under this Agreement by any Customer affiliate shall also be a default by Customer.
5.4 Notices. All notices shall be in writing and sufficient and received if delivered in person, or when sent via facsimile, pre-paid overnight courier, electronic mail (if an e-mail address is provided below) or sent by U.S. Postal Service (or First Class International Post (as applicable)), addressed as follows:
IF TO VOYSS SOLUTIONS®:
For billing inquiries/disputes, requests for Service Level credits and/or requests for Disconnection of Service (other than for default):
PO Box 17439
Winston-Salem, North Carolina 27116
Attn: Director, Billing
Facsimile: (866) 954-9071
For all other notices:
PO Box 17439
Winston-Salem, North Carolina 27116
Attn: Director, Billing
Facsimile: (866) 954-9071
IF TO :
CustomerCity, CustomerState CustomerZip
Either party may change its notice address upon notice to the other party. All notices shall be deemed to have been given on (i) the date delivered, if delivered personally, by facsimile or e-mail (one business day after delivery if delivered on a weekend or legal holiday), (ii) the business day after dispatch if sent by overnight courier, or (iii) the third business day after posting if sent by U.S. Postal Service (or other applicable postal delivery service).
5.6 Intellectual Property and Publicity. Neither party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, trade names, patents, trade secrets or other form of intellectual property of the other party or its affiliates without the express prior written authorization of the other party. Neither party shall issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed between the parties in writing. Any information or documentation disclosed between the parties during the performance of this Agreement (including this Agreement) shall be subject to the terms and conditions of the applicable non-disclosure agreement then in effect between the parties.
5.7 Governing Law; Amendment. This Agreement shall be governed and construed in accordance with the laws of the State of North Carolina, without regard to its choice of law rules. This Agreement, including any Service Schedule(s) and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
5.8 Relationship of the Parties. The relationship between Customer and Voyss Solutions® shall not be that of partners, agents, or joint venture for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes.
5.9 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. Facsimile signatures shall be sufficient to bind the parties to this Agreement.
5.10 Service Schedules: The following Service Schedules applied to this agreement:
Exhibit A - Voyss Plus® Hosted IP PBX Service
Exhibit B - Voyss Plus® Professional Services
Exhibit C - Voyss Plus® Basic Field Tech Services
Exhibit D - Voyss Plus® Hosted Virtual Desktop
Exhibit E - Voyss Plus® Dynamic Servers
Exhibit F - Voyss Plus® Microsoft Office 365
6.1 911 Acknowledgement: End user acknowledges that Voyss’ equipment and services do not support 911 emergency dialing or other emergency functions in the same way that traditional Wireline 911 services work. The differences are detailed in this section 6 and end user agrees to notify any potential user of the services, who may place calls using end user’s services, of the 911 limitations described herein. Voyss’ 911 dialing cannot be used in conjunction with a soft phone application and is only available on Voyss provided devices or equipment. End user affirmatively acknowledges that Voyss has advised end user of the circumstances under which Voyss Plus E911 service may not be available or may be limited in comparison to traditional 911 emergency dialing. Voyss advises end user to maintain an alternative means of accessing traditional 911 services. Further, end user acknowledges that it is the end user’s responsibility to determine the technology or combination of technologies best suited to meet end user’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 Voyss 911 service from traditional, legacy, circuit switched 911 service.
6.1.1 911 Dialing Capabilities with Voyss Service: When you dial 911 on your phone utilizing Voyss’ Service, your call may be located at a Public Safety Answering Point (PSAP) designated for the address you listed at the time you registered for the service or other back-up emergency answering. Voyss relies on third parties for the forwarding of information underlying such routing, and accordingly, VOYSS AND ITS THIRD PARTY PROVIDER(S) DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH INFORMATION OR ROUTING IS INCORRECT. In addition, Voyss’ 911 service has fewer capabilities than traditional 911 or E911 service as follows:
6.1.2 Voyss 911 Emergency Dialing: only available at the Physical street address registered with Voyss for the particular Area Code and Phone Number: You acknowledge and agree that 911-type Services shall only be available at the Physical street address associated with the particular Area Code and Phone Number assigned to you. You further acknowledge and agree that 911-type Services will not be available to a particular customer and neither Voyss nor its underlying service providers shall have any liability to you or any third party for failure to provide 911 Services to you in the event of the assignment of an Area Code and Phone Number to you located outside of the Exchange Area associated with your Physical street address or relocation of the telephone device to which an Area Code and Phone Number has been assigned to a location other than your Physical street address as registered with Voyss.
6.1.3 Failure to Designate the Correct Physical street address: If you do not correctly identify the actual current and correct Physical street address location where your Voyss equipment will be located at the time you register for the service, 911 communications may be misdirected to an incorrect local emergency service provider. When activating Service you must provide the actual Physical street address where the device will be located, not a post office box, mail drop, or similar address. You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your Voyss device to a different street address. Any change of the devices Physical address must be coordinated with Voyss for the service and 911 to work properly.
6.1.4 Automated Number and Location Identification: The PSAP receiving the Voyss Voice 911 emergency service calls may not be able to capture and/or retain automatic number or location information. Voyss’ system is configured in most instances to send the automated number identification and to transmit identification of the address that you have registered with Voyss to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you dial 911; however, one or more telephone companies, not Voyss, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number and location in order to call you back if the call is unable to be completed. is dropped or disconnected, or if you are unable to speak to tell them your phone number and location and/or if the Service is not operational for any reason, including without limitation the listed elsewhere in these Terms and Conditions.
6.2 Electrical Power: End user acknowledges that the services will NOT function in the absence of electrical power.
6.3 Internet Access: End user acknowledges that the services will NOT function if there is an interruption of end user’s broadband or high speed internet access service.
6.4 Non-Voice Systems: End user acknowledges that the services are not set up to function with outdialing systems including home security systems, medical monitoring equipment, TTY equipment, and entertainment or satellite television systems. End user has no claim against Voyss for interruption or disruption of such systems by the services.
6.5 E911 Mandatory Component: Voyssplus E911 Service is a mandatory component of all inbound/outbound fax and voice service plans. E911 services is NOT offered on virtual numbers, toll-free numbers, or similar accessories or add-on plans. E911 service is only available in selected areas. End users who subscribe to Voyssplus E911 service will be required to register the Physical location of their equipment with Voyss, either on the Voyss website (www.voyss.com) or by calling customer service, and agree to update the location whenever the Physical location of service changes. End user acknowledges that Voyss’ only mechanism for routing 911 calls to the correct emergency call taker is the Physical location currently registered for the account. End user acknowledges and understands that any enhanced location information passed to an emergency operator by Voyss will be based upon the Physical location provided to Voyss by the end user.
6.6 E911 Monthly Charge: End users who are required to subscribe to Voyssplus E911 service will be subject to a monthly E911 service charge. The monthly E911 service fee shall be included in the applicable business plan charges for the associated line. The monthly charge for Voyssplus E911 service is assessed on a “per-line” (that is per phone number basis), and will be set at a level that reimburses Voyss for the direct costs it incurs in providing Voyssplus E911 service, including expenses Voyss incurs, either directly or indirectly, in the form of state, county, or municipal E911 surcharges, E911 automatic location information (ALI) database storage, line information database and caller ID (LIDB/CNAM) expenses, and any other taxes or surcharges directly or indirectly associated with the provision of services to end users subscribing to this service. Voyss reserves the right to adjust the level of charges associated with the provision of E911 services to reflect increases of decreases in the costs it incurs.