Terms of Services Agreement and E911 DISCLOSURE
Document #: CD-046
This smplsolutions (including but not limited to smplVoice and smplSIP) Services Terms & Conditions Agreement (“Agreement”) is entered in to, by and between smplsolutions, a California Corporation having its principal place of business at 27 Orchard, Lake Forest, CA 92630 (“SMPL”) and the Customer. The “Customer” is the entity, company or person identified at the time the “Services” are ordered. The parties agree as follows:
- Services: SMPL agrees to provide and Customer agrees to accept and pay for Services. In consideration of the Service Charges, SMPL will provide to Customer the Services ordered at the physical location designated in the order (the “Services”). Customer may only use the Services for its internal business purposes and the Services may not be resold by Customer to any third-party, unless agreed to in writing. Grant of License – Any software provided as part of the Services (“Software”) is licensed and not sold to the Customer unless expressly detailed as sold/purchased in writing. This Services Terms & Conditions Agreement and the applicable quotes/proposals/Service Activation Forms are sometimes collectively referred to as the “Agreement”. This Agreement will be effective as of the date the initial Service Activation Agreement is executed by Customer and accepted by SMPL (the “Effective Date”).
- Sales Orders: The Services are described in the proposal/quote agreements which detail (i) the price, location and required information about the Services; (ii) details relating to any equipment, and (iii) any associated installation, maintenance, and the like. Proposals are valid for 30 days unless otherwise specified and are not binding until executed by Customer and accepted by SMPL. Proposals that have been executed by Customer and accepted by SMPL will be collectively referred to as a “Sales Order”. Additional proposals or quotes may be delivered from time to time during the term of the Agreement. Customer may order additional or incremental Services through an incremental Sales Order. Additional and incremental Sales Orders automatically become a part of this Agreement.
- Access to Customer Premises: If access to Customer’s premises is required for the installation, maintenance, or removal of the Services, Customer will ensure that SMPL has reasonable and timely access to the premise and will use commercially reasonable efforts to obtain any necessary third-party consents.
- Credit Approval and Deposits: Customer will provide SMPL with credit information as requested. SMPL may require Customer to make a deposit as a condition of SMPL’s acceptance of any Sales Order or continuation of: a) usage-based Services; or b) non-usage based Service where Customer fails to pay SMPL in a timely manner hereunder or SMPL reasonably determines that Customer has had an adverse change in financial condition. Deposits will not exceed two (2) months estimated charges for Services and are due upon SMPL’s written request. When Service is discontinued per the terms of the Agreement, the deposit will be credited to Customer’s account and any balance refunded.
- Service Term: Sales Orders will contain the duration for which Services are ordered (“Agreement/Service Term”). The term of the Sales Order will begin and billing will commence as of the Service Date and will not be delayed due to Customer’s readiness to accept or use Service. If Customer notifies SMPL within two (2) business days after a Service Date that Service is not functioning properly, specifying the deficiencies, SMPL will work to correct any deficiencies and, the Service Date for such Service will occur when such issues have been resolved such that Service is operational. If it is determined that the specified issues were not attributable to SMPL, its agents, or contractors, the original Service Date for that Service will remain unchanged. At the end of the initial Service Term or any renewal term, this Agreement will automatically renew as a month to month agreement SMPL may increase pricing after the initial term or any renewal term of the Agreement.
- Equipment Compatibility: SMPL recommends specific equipment for use with its Services, which Customer will be required to rent or purchase. While customer is not required to purchase the equipment through SMPL, Customer understands that if they rent or purchase equipment from other than SMPL and it is found to be incompatible with Service, Customer is responsible for any equipment replacement, additional labor – including troubleshooting, special interface equipment, or facilities necessary to ensure compatibility with Service.
- Commencement of Billing: For any given Sales Order, the “Service Date” is the date that ordered Service has been installed and/or activated, and is available for Customer’s use. Unless otherwise indicated on a Sales Order or agreed in writing by Customer and SMPL, the Service Date will be the earliest practical date using reasonable commercial efforts. SMPL will notify Customer of the Service Date. Customer may request an expedited Service Date and SMPL will notify Customer of any additional charges (“Expedite Charge”), which will include any third-party charges incurred by SMPL. If SMPL accepts the expedited Service Date request from Customer, Customer must pay the Expedite Charge(s).
- Payment of Invoices and Disputes: Invoices are typically delivered monthly and due 20 days after the invoice date. Fixed charges are billed in advance and usage-based charges are billed in arrears. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). Customer is responsible for all charges respecting the Service, even if incurred as the result of unauthorized use. 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 or Customer waives the right to dispute the charges. If the dispute is resolved against Customer, Customer shall pay such amounts plus interest from the date originally due.
- Taxes and Fees: Customer is responsible for payment or reimbursement to SMPL of any fees, taxes or surcharges that are imposed or authorized by regulatory and governmental entities, including but not limited to, any and all applicable federal, state, local or foreign use, excise, sales, gross receipts, rental or privilege taxes, charges or surcharges (however designated), regulatory fees, value-added and other taxes, levies, surcharges, duties, fees, pay-phone service provider compensation or other related surcharges, chargeable to or against SMPL or Customer because of the Services provided to Customer. In some situations SMPL is the “Provider” of services, and in others SMPL is the reseller of third party Provider services. Customer shall indemnify, defend and hold harmless SMPL against any damages, losses, claims or judgments arising out of any exemption claimed by Customer or Customer’s failure to pay taxes or regulatory fees, including, without limitation, any liens, attachments, fines or penalties. The Service Charges shall be fixed during any Services Term in force for the applicable Services, except that SMPL may modify the Services Charges upon thirty (30) days prior notice to Customer if a change in SMPL’s costs necessitate a change in the Service Charges; and a Customer’s use of the Service after the date of change of Service Charges shall serve as acceptance of the revised charges. In addition, notwithstanding anything to the contrary, SMPL may pass through to Customer at any time third-party fees, taxes, regulatory and other fees and charges.
- Continuation of Services: Upon thirty (30) day written notice by a party to terminate this Agreement, Services with a remaining Service Term will remain in effect through the applicable Service Term, and the terms and conditions of this Agreement will continue to apply to such Services.
- Customer Cancellation Prior to Service Date: If Customer, without any express right to do so, cancels any ordered Service prior to the Service Date for such Service, then Customer’s liability for such cancellation shall be an amount equal to (a) all non-recurring charges incurred by SMPL because of such cancellation; plus (b) two (2) months of the forecasted monthly recurring charges or monthly commitment level payments; plus (c) 20% restocking fee for all materials listed in the sales order as a non-recurring purchase. Customer shall pay such cancellation amount immediately upon receipt of an invoice.
- Cancellation and Termination Charges After Service Date: If Customer terminates this Agreement or any Service after the Service Date for such Service but prior to the end of the applicable Service Term for any reason other than SMPL’s default, then Customer must pay immediately to SMPL as liquidated damages 80% (eighty percent) of all monthly recurring charges associated with the terminated Service(s) for the remaining monthly recurring charges through the end of the applicable Service Term(s). It is agreed that SMPL’s damages in the event of early termination will be difficult to ascertain. These provisions are therefore intended to establish a reasonable approximation of SMPL’s losses in the event of early termination and are not intended as a penalty.
- Regulatory and Legal Changes: This Agreement is subject to all applicable U.S. federal, state and local laws, rules and regulations. SMPL may discontinue, limit, or impose additional requirements to the provision of Service, as required to meet regulatory requirements. If changes in applicable law, regulation, rule or order materially affect delivery of Service (including the economic viability thereof), the parties will negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within 30 days after SMPL’s notice requesting renegotiation: (a) SMPL may, on a prospective basis after such 30-day period, pass any increased delivery costs on to Customer and (b) if SMPL does so, Customer may upon notice given to SMPL within 30 days after delivery of the notice of the increased charges terminate the affected Service, unless SMPL agrees to waive the increased charges.
- Default: If (A) Customer fails to make any payment when due and such failure continues for 5 business days after written notice from SMPL, 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 Sales Order, in whole or in part, and/or (ii) subject to the terms of this Agreement, pursue any remedies it may have at law or in equity. If Customer gives SMPL notice of breach and such breach is not capable of cure within a 30-day period, the time for SMPL to cure will be extended to 90 days from the date that SMPL received notice of such breach.
- No Special Damages: Subject to Sections 11 and 12 and the Service Proposals/Quotes, Customer understands and agrees that SMPL and its underlying carriers shall not be liable to Customer or any other party for interruption or delays in transmission or failure to transmit, nor for special, incidental or consequential damages caused thereby, including lost profits or loss of goodwill (whether or not SMPL has been advised of the possibility thereof) by reason of any breach, act or omission of SMPL in its performance hereunder. Customer will indemnify and hold SMPL harmless from and against any, and all claims by any third party arising from or relating to provision of Services to Customer under this Agreement.
- Warranties: SMPL will use reasonable efforts under the circumstances to maintain its overall network quality. The quality of Services provided hereunder shall be consistent with service provider industry standards, government regulations and sound business practices. THE EXPRESS WARRANTY DESCRIBED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Support and Service Level Commitments: Customer will report any issues with Service to the SMPL support department. Contact information for SMPL Support is provided on the Customer invoice as well as at www.smplsolutions.com. Most SMPL Services require a high-speed broadband connection. Events beyond SMPL’s control may affect the Service, such as power outages, fluctuations in the Internet, or maintenance. SMPL will act in good faith to minimize disruptions to the Customer’s use and access to the Services, but due to the susceptibility of the Public Internet to service quality issues beyond SMPL’s control, we cannot guarantee the quality of the service beyond items under our control. To request a credit, Customer must deliver a written request (with sufficient detail to identify the affected Service) within 30 days after the end of the month in which the event occurred. Total monthly credits will never exceed the charges for the individual affected Service for that month. If, in responding to a Customer-initiated service ticket, SMPL reasonably determines that the cause of such service ticket is a failure, malfunction or inadequacy of Customer-provided internal wiring, equipment, or software (including Customer owned system equipment), or due to unauthorized equipment attached to the SMPL equipment/managed network or unauthorized modifications to the SMPL equipment/managed network, Customer will pay SMPL for its troubleshooting service at SMPL’s then prevailing rates.
- Porting of Customer Numbers: Upon SMPL’s receipt of Customer’s request to port any Customer telephone number(s), SMPL will facilitate porting of the telephone number(s) identified in such request either to or from a telecommunications carrier or another interconnected VoIP provider by taking without unreasonable delay all steps necessary to initiate or allow a port-in or port-out, whether performed by SMPL itself or through the carriers, if any, that SMPL relies on to obtain telephone numbers.
- Assignment; Change in Status: Customer shall not assign or otherwise transfer (including, without limitation, a transfer due to a “Change of Control”) its rights or obligations under this Agreement without the prior written consent of SMPL, which shall not be unreasonably withheld. Customer must be current on all payments required by this Agreement before any assignment is approved by SMPL. Any such assignment or transfer of Customer’s rights or obligations without such consent shall entitle SMPL to disconnect the Services provided hereunder at its option upon ten (10) calendar day’s prior written notice to Customer and shall constitute a default of a material obligation. A Change in Control shall be deemed to be an assignment, merger, sale of a controlling interest or other transfer of a controlling ownership interest.
- Force Majeure: Except for payment obligations, neither party shall be held responsible for any delay or failure in performance of this Agreement to the extent that such delay or failure is caused by fires, strikes, labor disputes, embargoes, explosions, earthquakes, floods, wars, water, the elements, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials, or transportation facilities, acts or omissions of carriers or suppliers, or any other such causes beyond its reasonable control whether or not similar to the foregoing.
- Use of Service: It is specifically understood and agreed that the Customer shall be using the Service solely for lawful and appropriate purposes and the Customer hereby agrees to indemnify and hold SMPL harmless from any, and all claims, damages, losses or liabilities of any nature whatsoever arising out of or concerning the Customer’s use in any manner of the Service provided herein. In the event SMPL is brought into or required to respond to any action arising from or concerning the Customer’s activities, the Customer agrees to indemnify and hold SMPL harmless from all arbitration, court and attorney’s costs and fees. SMPL reserves the right to immediately discontinue, disconnect, limit, or revoke the Service without warning to the Customer should the Customer, at the sole discretion and determination of SMPL, cause any type of activity or load which is incompatible with SMPL’s network, carrier’s network, causes quality of service issues, or otherwise impairs the ability of SMPL to maintain or provide service to other customers. In the case that the Service is suspected of being misused by the Customer, including for fraudulent activity, SMPL reserves the right at its sole discretion to immediately terminate the Service and inform the authorities that the Service is believed to have been used for inappropriate purpose. SMPL shall not be liable for any direct or indirect damages resulting from a decision to discontinue, disconnect, limit, or revoke the Service with or without warning or for informing the authorities about the possibility of inappropriate use or business activities.
- Solicitation of Persons Working at smplsolutions: During the time Customer is under agreement with SMPL and for one (1) year following the termination of such relationship, Customer will not induce or attempt to induce any persons holding positions with SMPL or any representatives of SMPL to discontinue working for or representing SMPL to work for or represent the Customer, any of Customer’s associates or any of SMPL competitors. If it is determined that Client has breached this agreement, Customer will be liable for damages to SMPL in the amount of six (6) times the monthly gross pay of the SMPL employee or representative so induced.
- LIMITATION OF LIABILITY: CUSTOMER AGREES THAT SMPL SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFIT, REVENUE, OR DATA ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, NOR SHALL SMPL BE LIABLE FOR ANY CLAIM BY ANY THIRD PARTY. FURTHER, SMPL SHALL NOT BE LIABLE TO ANY CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIM ALLEGING PROPERTY LOSS OR DAMAGE, PERSONAL INJURY, OR DEATH ARISING FROM THE USE OR MISUSE OF THE EQUIPMENT OR SERVICES PROVIDED BY SMPL. THE LIABILITY OF SMPL TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THE SERVICES, EQUIPMENT, OR MATERIALS PROVIDED OR AGREED TO BE PROVIDED BY SMPL SHALL BE LIMITED TO SUCH AMOUNTS AS HAVE BEEN PAID TO SMPL FOR SUCH SERVICES, EQUIPMENT, OR MATERIALS. CUSTOMER AGREES TO HOLD HARMLESS AND INDEMNIFY SMPL FROM ANY AND ALL CLAIMS (INCLUDING THE COST AND ATTORNEYS FEES OF DEFENDING SUCH CLAIMS) WHICH MAY BE BROUGHT AGAINST SMPL BY ANY THIRD PARTIES AND ARISING FROM THE PERFORMANCE OF SERVICES OR THE PROVIDING OF MATERIALS OR EQUIPMENT BY SMPL, THE USE OR MISUSE OF SUCH EQUIPMENT, OR FROM CUSTOMER’S BREACH OF ANY OF THE TERMS OF THIS AGREEMENT.
- Arbitration & Governing Law: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Orange County, California. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. This contract shall be construed under the laws of the State of California.
- Entire Agreement: The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement, to the extent necessary, for their enforcement and for the realization of the benefit thereof by the party in whose favor they operate. This Agreement (which includes the Sales Order(s), Proposals, and any other attachments, and addenda) constitutes the entire agreement of the parties with respect to the subject matter, and supersedes any prior agreements and negotiations. In the event of a conflict, the terms of a Sales Order prevail over a Proposal, which prevails over these terms. Any modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
- EMERGENCY 911 SERVICES – ENHANCED 911: The Provider is subject to an FCC requirement to provide notification of any E911 limitations that may be associated with the Services. (https://transition.fcc.gov/cgb/voip911order.pdf) The Services do not support E911 dialing or other emergency functions in the same way that traditional telephone services do. Provider advises the Customer to ensure that it and all potential users of the Services have available an alternative means to place E911 calls, such as a mobile telephone or a traditional wireline phone. Customer is advised that the E911 service provided by Provider: (1) may not function with the loss of electrical power, including the loss of power to telephone equipment or other equipment necessary to route E911 calls to the appropriate emergency call center; (2) will not function if the broadband or high- speed Internet connection is not operational or if there is congestion on the broadband network; (3) will not function at a remote location and will likely transmit incorrect physical location information for the caller if internal users are allowed to use their IP- based phones remotely; (4) will not function if the telephone equipment or other equipment necessary to place calls is not correctly configured; (5) may not transmit the correct physical address for the E911 call due to incorrect information provided by Customer, use of a non-native telephone number or delays in loading or updating automatic number identification and location information into the E911 databases; (6) may not be capable of being received and/or processed by an emergency call center due to the center’s technical limitations; and (7) may be affected by other factors or force majeure events, such as the quality of the broadband connection and network congestion. Additionally, a service outage due to suspension of your account because of billing issues will prevent ALL Service, including any 911 emergency response services. The Services are not set up to function with outbound dialing systems including home security systems, medical monitoring equipment, TTY equipment, and entertainment or satellite television systems. E911 service is not offered by SMPL on virtual numbers, toll-free numbers or similar service accessories or add-on plans. Customer agrees to notify any potential user of the Services known to Customer of the limitations and potential unavailability of E911 dialing using the Services contained herein. The physical location that Customer provided at the initiation of the Services and the Services are first used, shall be the registered location that will be provided to the emergency call center when you place a 911 call and any enhanced information sent to the emergency call center when an E911 call is placed will be based on the then current registered location. Customer agrees to update the registered location whenever the physical location of service changes by contacting SMPL. Customer acknowledges that there may be some delay before the new registered location and automatic number and location information it provides to SMPL or its agents have been updated and can be passed to the local emergency service operator. Notwithstanding anything to the contrary in the agreement, Customer will indemnify and hold SMPL and its officers, directors, employees, affiliates and agents harmless from and against any claim, loss, or expense (including without limitation reasonable attorney’s fees) arising directly from any death or injury to persons, or damage to tangible property, to the extent such claim, loss or expense arises from the failure of Customer to comply with this section or from any failure or outage of the Service that is caused , in whole or in part, by Customer’s act(s) or omission(s). The foregoing terms regarding E911 service limitations and potential unavailability and other terms associated with E911 service are hereby acknowledged and understood.
- CALL BACK PHONE NUMBER: IF YOU CALL 911, THE SYSTEM AUTOMATICALLY TRANSMITS A CALLBACK PHONE NUMBER. IF YOU HAVE MULTIPLE FLOORS OR FACILITIES (BUILDINGS/LOCATIONS), AND A SINGLE SPECIFIC CALLBACK NUMBER HAS BEEN DESIGNATED AS THE NUMBER THAT IS TRANSMITTED, THEN IF THIS CALLBACK NUMBER IS NOT THE NUMBER FROM WHICH THE 911 CALL IS PLACED, A DELAY IN RESPONDING TO THE 911 CALL COULD OCCUR IF THE PERSON ANSWERING THE CALLBACK NUMBER WAS UNAWARE OF THE EVENT THAT PROMPTED THE 911 CALL.
- LABELS: AS REQUESTED SMPL WILL PROVIDE CUSTOMER WITH ADHESIVE LABELS THAT ALERT USERS TO THE E911 LIMITATIONS. THE FEDERAL COMMUNICATIONS COMMISSION RECOMMENDS THAT CUSTOMER PLACE THESE LABELS ON OR NEAR THE IP PHONES ASSOCIATED WITH THE SERVICES.
- ADVISORY RELATING TO CALL RECORDING FEATURES: Users of SMPL’s call recording features must understand and comply with all applicable laws which govern surveillance of electronic communications, eavesdropping, and the like. Failure to follow these laws may lead to civil or even criminal liability. Notwithstanding anything to the contrary in the agreement, Customer will indemnify and hold SMPL and its officers, directors, employees, affiliates and agents harmless from and against any claim, loss, or expense (including without limitation reasonable attorney’s fees) arising directly from any legal issues, to the extent such claim, loss or expense arises from the failure of Customer to comply with this section.
SERVICE CALL MONITORING: SMPL takes the privacy of our customers seriously. We do not monitor the voice or data communications of our customers in any manner without the express authorization of our customer. In those cases, where a customer has reported a service quality issue we will request a specific call example by time, date, and number called. If necessary, those calls may be monitored solely to assist in identifying the source of the quality issue. The content of the conversation within these calls is never stored, transcribed, or disseminated beyond those individuals at SMPL, its underlying carriers, and the customer representatives that are specifically tasked with diagnosing and repairing the specific service quality issue. By requesting assistance in this manner, customer acknowledges and understands that monitoring of the actual phone conversation as described above is acceptable and agreed upon.