1. General.
A. Applicability: These service provider Terms and Conditions of Service (T&Cs), along with the Switchtel Wholesale Master Services Agreement (“WSA”), any applicable Service Schedule or Addendum, and any order submitted in the Switchtel Partner Portal (“RPP”) (“Customer Order”), shall constitute the Agreement ("Agreement") between Switchtel Communications("Switchtel", "we", or "us") and the user ("you" or "Customer"), of Switchtel Communications services and any related products or services ("Services"). Switchtel may, at its sole discretion, with or without notice, modify, change, add to or omit any terms and conditions in this Agreement. Your continued use of Service after one (1) full billing cycle following any such modification constitutes your acceptance of the modified Terms. You agree to be bound by the terms and conditions in this Agreement applicable to the Services provided by Switchtel.
B. Acceptable Use Policy: By using the Services provided by Switchtel , Customer agrees to comply with and be bound by, and require any End-Users or other third parties using the Services via Customer’s account to comply with and be bound by, Switchtel’s Acceptable Use Policy (AUP) and Privacy Policy, available at https://www.ourbusinessphone.com. Switchtel in its sole discretion may modify the AUP and Privacy Policy. Any modifications shall be effective immediately upon publishing.
2. Term. Unless otherwise specified in the WSA or applicable Customer Order, the term of the Agreement shall commence on the Effective Date, and, unless terminated earlier as set forth herein, will continue for a period of twenty-four (24) months (“Initial Term”). After the Initial Term, this Agreement shall automatically renew on a year-to-year basis (each a “Renewal Term”, and together with the Initial Term, the “Term”) until terminated by either Party upon one hundred and eighty (180) days’ prior written notice.
3. Billing & Payment.
A. Commencement of Billing: Billing for Services shall commence when the Service is installed or available for use or rendered by Switchtel , and as set forth in the Customer Order
B. Service Charges: Customer agrees to pay all charges or fees associated with the Services provided by Switchtel to Customer as set forth in any Customer Order, Service Schedule, or Addendum. Fixed recurring service charges are billed in advance of the month in which the Service is available. All usage-based Service charges are billed in arrears. Billing for partial months is prorated based on a calendar month.
C. Taxes, Surcharges, Recovery and Administrative Fees: As a reseller of Internet Telephony Services, Customer is recognized as an Internet Telephony Service Provider (ITSP) by the Federal Communications Commission (FCC). Customer is responsible for and agrees to pay all appropriate taxes and surcharges associated with services provided to end customers to the proper government entities.
D. Payments of Invoices: Switchtel shall provide invoices monthly via an online portal (no paper copies). All invoices are due and payable within twenty (20) days of the invoice date (“Due Date”). Unless otherwise specified on the invoice, all payments shall be due and payable in U.S. Dollars.
E. Nonpayment or Delinquency: If Switchtel does not receive payments for sums owing by the Due Date, then Switchtel may charge a late fee of 1.5% per month (or the highest rate allowed by law, whichever is less) for any past due amounts, beginning from the date first due until paid in full. Switchtel may also take one or more of the following actions immediately after notifying Customer: (a) refuse to accept, process, or complete any new Customer Orders, or any move/add/change orders for existing Hosted or SIP Customers; (b) suspend partner access to the Switchtel Partner Portal and MetaView Web, while continuing to provide troubleshooting support for calls in NOC only; or (c) suspend partner access to all systems including ServiceNow for trouble tickets and the billing platform. None of the foregoing actions on the part of Switchtel shall waive Switchtel right to take future actions to collect past due amounts. Customer may not claim outage credits or service credits for any service interruptions resulting from Switchtel exercising its rights under this Section.
F. Refunds & Disputed Invoice Charges: Switchtel does not provide refunds for services. Customer may, within (60) days of an invoice date dispute a charge in good faith and withhold payment of that charge provided that Customer makes a timely payment of all undisputed charges and provides Switchtel with a written explanation of reasons for the Customer’s dispute of the charge. Customer waives any disputes or credits that are not reported within this 60-day period. Customer must cooperate with Switchtel to promptly resolve any disputed charge. If Switchtel determines that the disputed charges are valid, Switchtel will notify Customer and the amount in question shall be due and payable immediately. Switchtel may in its sole discretion waive disputed charges. For questions or concerns regarding refunds or disputes, please contact Switchtel support at 407.557.3072 or info@ourbusinessphone.com.
G. Collections: Switchtel may hire a third party to collect past due amounts. In addition to those amounts owing, Customer shall be responsible for all costs, fees, and expenses associated with collecting any past due amounts, including without limitation, reasonable attorneys’ fees. Customer’s liability for Switchtel legal expenses and attorneys’ fees, notwithstanding collection efforts, may be settled prior to an actual legal proceeding.
H. Price Changes: If changes to regulatory requirements or other conditions affect Switchtel costs of providing services, then Switchtel may modify the price of any new or existing Service, provided that such price modification shall not become effective until the first day of the month following the month in which such price modification was made. Switchtel shall provide Customer with written notice of such price modifications at least thirty (30) days’ prior to the date any such price modification is to become effective. Customer may discontinue the affected Service without breaching this Agreement after receiving notice of the price modification and before the price modification becomes effective only. In the alternative, Switchtel reserves the right to discontinue services to Customer upon thirty (30) days’ written notice if the costs of providing such services increases as a result of changes to regulatory requirements or other conditions.
4. Confidentiality.
A. Confidential Information: “Confidential Information” shall mean any information or data disclosed by one Party or its affiliates (“Disclosing Party”) to the other Party or its affiliates (“Receiving Party” or “Recipient”) under or in contemplation of this Agreement, including the T&Cs of this Agreement, or which the Receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information excludes any information or data which the Recipient can demonstrate: (i) is available to the public; (ii) becomes available to the public through no breach of this or any other agreements between the Parties; (iii) before its disclosure hereunder, was known by the Recipient without any obligation owing to the Disclosing Party (directly or indirectly) to hold it in confidence; (iv) is received from a third Party who does not owe any duty to the Disclosing Party (directly or indirectly) with respect to such information; (v) is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; or (vi) is approved for release by written authorization of the Disclosing Party but only to the extent of such authorization and without any disassembly, reverse engineering, or similar undertaking by Recipient.
B. Protection of Confidential Information: During the course of this Agreement, either Party may receive or have access to Confidential Information of the other. Each Party will cause its affiliates to comply with the obligations of this Section 3, and each Party agrees that it is responsible for its affiliates’ compliance with this Section 3. Actions or omissions by a Party’s affiliate, that if taken by said Party would constitute a breach of this Section 3, will be considered actions or omissions of said Party. The Recipient acknowledges the economic value of the Disclosing Party’s Confidential Information. The Recipient therefore, will: (i) use the Confidential Information only in connection with the Recipient’s performance of its obligations or in exercising its rights under this Agreement; (ii) restrict disclosure of the Confidential Information to employees of the Recipient and affiliates with a “Need to Know” and not disclose it to any other person or entity without the prior written consent of the Disclosing Party; (iii) advise those employees who have access to the Confidential Information of their obligations with respect thereto; (iv) treat the Confidential Information with at least the same degree of care to avoid disclosure to any third party as is used by Recipient with respect to its own information of like importance which is to be kept secret; and (v) copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies. For the purposes of this Section 3 only, “employee” includes third parties retained by the Parties for temporary consultative, administrative, clerical, programming, or related Services support.
C. Permitted Disclosure: If Recipient is required by law or regulation to disclose Confidential Information of the Disclosing Party, Recipient may do so, but only to the extent and for the purposes of such required disclosure, and only if the Recipient first promptly notifies the Disclosing Party of the need for such disclosure and allows the Disclosing Party a reasonable opportunity to seek an appropriate protective order.
D. Return of Confidential Information: The Parties agree to immediately (a) return to the Disclosing Party, upon demand, any Confidential Information furnished under the Agreement that is either received in or reduced to material form, and all copies thereof, or (b) certify the destruction of Confidential Information and copies thereof.
E. Remedies: The Parties acknowledge that money damages may not be a sufficient remedy and that in the event of an unauthorized disclosure or use of information in violation of this agreement, the non-breaching Party shall be entitled to seek specific performance and injunctive relief as remedies for such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In addition, each Party shall be entitled to apply for such relief against the other Party without the necessity of posting bond. In the event of litigation arising out of the subject matter of this agreement, the prevailing Party shall be entitled to recover from the unsuccessful Party reasonable attorneys’ fees and related costs and expenses incurred as a result of such litigation.
5. Intellectual Property. Each Party retains all right, title and interest in and to its intellectual property. No licenses will be deemed to have been granted by either Party to any of its intellectual property except as expressly authorized in a Customer Order. Customer acknowledges that it has no proprietary interest in the Services or derivatives thereof, including, but not limited to, the servers, software, or data used by Switchtel in the provision of the Services. All right, title and ownership to any software (both in object code and source code format), hardware or know-how which Switchtel licenses or develops to provide the Services is owned exclusively by Switchtel or its licensors. Customer agrees not to, and not to allow others to, modify, copy, or reverse engineer the Services.
6. Disclaimer of Warranty. SWITCHTEL MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ITS PROVISION OF THE SERVICES, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. FURTHERMORE, SWITCHTEL EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. UNLESS SPECIFICALLY IDENTIFIED IN ANY ORDER FORM, SWITCHTEL MAKES NO WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY OF THE SERVICES.
7. Limitation of Liability. Except for (i) infringement or misappropriation of the other Party’s intellectual property rights, including trade secrets; (ii) willful misconduct or gross negligence; or (iii) Customer’s obligations to pay Switchtel the charges applicable to the Services; or (iv) Customer’s indemnification obligations under this Agreement (“Excluded Matters”), neither Party will be liable to the other Party for any consequential, indirect, special, punitive, incidental damages of any kind, whether foreseeable or unforeseeable, arising out of or related to the Agreement (regardless of whether a claim for any such liability is premised upon breach of contract, warranty, negligence, strict liability or other theory of liability). Except for the Excluded Matters, in no event shall either Party’s liability to the other for all claims arising out of or as a result of the Agreement exceed an amount equal to the sum of payments received by Switchtel in connection with the Service(s) for the twelve (12) months immediately preceding the time of the event resulting in liability occurs.
8. Indemnification.
A. Customer Indemnification: Customer hereby agrees to indemnify, defend and hold harmless Switchtel , and its respective affiliates, subsidiaries, directors, officers, agents, suppliers, employees and assigns (collectively, "Indemnified Parties"), from and against any Losses arising out of or relating to: (i) Customer or Customer’s End-Users’ use of Services; (ii) the content of Customer or Customers’ End-Users’ data and/or any third party information used, maintained or stored in connection with the Services (except for content solely created by Switchtel ); (iii) Customer or Customer’s End-Users’ use of 911 or E911 services, including but not limited to Customer’s management of and data entry into the platform provided by Switchtel ; (iv) the breach by Customer of any representation, covenant or warranty contained herein; (v) violation of any law by Customer or any third party arising out of or relating to Customer’s actions; (vi) the modification or unauthorized use by Customer or Customer’s End-Users’ or distribution of the Services or Switchtel Intellectual Property; or (vii) any violation of law in which Customer allegedly engaged.
B. Switchtel Indemnification: Subject to the limitations set forth in Section 5, Switchtel shall, during the Term of this Agreement, defend and indemnify, at its expense, any claim or suit brought against Customer alleging that Software infringes a U.S. trademark, patent or copyright and shall pay all costs and damages finally awarded, provided that Switchtel is given prompt written notice of such claim or suit and is given Customer’s reasonable assistance and the sole authority to defend or settle the claim. If use of the Software under the terms of this Agreement is, or in Switchtel opinion is likely to be enjoined due to the type of infringement specified above, then Switchtel will, at its sole option and expense obtain for Customer the right to continue using the Software or replace or modify the Software so that it becomes non-infringing. Switchtel shall have no liability for actual or alleged infringement based upon the use of the Software in combination with other products, devices or software not furnished by Switchtel , use not in compliance with Switchtel specifications, or modifications made to the Software if the claim or suit of infringement would not have occurred but for such combination or modifications of the Software. Switchtel disclaims all other liability for patent, trade secret and copyright and other intellectual property rights infringement, including any incidental, special or consequential damages. With respect to any claims or actions relating to infringement of intellectual property rights, the remedies set forth in this Section shall be the sole and exclusive remedies to which Customer is entitled.
9. Right to Terminate. In addition to any other rights at law or in equity, Switchtel may immediately and without notice, suspend the delivery of Services and/or terminate this Agreement, in whole or in part as it applies to specific Order Form(s) or to specific End-Users, in the event that (i) Customer fails to make payment when due; (ii) Customer becomes insolvent or bankrupt or ceases paying its debts generally as they mature; or (iii) Customer or particular End-Users of Customer commit a breach of or otherwise violate any of the terms of this Agreement, including without limitation, the AUP, or applicable law, and Customer fails to cure such breach within thirty (30) days after receipt of written notice thereof. Any breach by Customer of its obligations under this Agreement shall also be deemed a breach by Customer of its obligations under any other agreements it has entered into with Switchtel and understands and agrees that such breach shall authorize Switchtel to immediately suspend performance under, and/or terminate, said agreements with Customer for default if such breach(es) have not been cured within the time provided for in this Agreement. If we believe that you or your End-Users have used the Service for an unlawful purpose, we may forward the relevant communication and other information, including your identity or that of your End-User, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding any such communications and information to these authorities. In addition, Switchtel may provide information in response to law enforcement requests, subpoenas, and court orders, to protect its rights and property, and in the case where failure to disclose the information may lead to imminent harm to the others. In the event that Switchtel is the defaulting party on a term of this Agreement, Switchtel shall have the opportunity to cure the alleged breach for thirty (30) days (or more if Switchtel notifies Customer that Switchtel has commenced cure activities and continues to use good faith efforts to cure the default). On termination, Customer will pay, in addition to any past due amounts for Services rendered, as liquidated damages and not as a penalty, and in lieu of all other damages, the sum of all remaining recurring Service Charges due under the remaining term(s) of the affected Customer Orders.
10. Other / Miscellaneous
A. E911 Disclosure Requirements: The Customer agrees that prior to providing end-user clients with wholesale business communications service, Customer will require the end-user client to sign an E911 Disclosure Addendum indicating the end-user client’s acknowledgement that any E911 calling capability associated with Service:
i. may not be available during an electrical power outage affecting the Service location;
ii. will not be available if Customer's broadband connection service has been disrupted and not restored;
iii. will not be available if Service has been discontinued for any reason, including Customer nonpayment;
iv. may not be available at locations other than the location for which a Service address has been furnished to Switchtel;
v. may not be available or may be routed to emergency personnel unable to respond, if Customer has disabled or damaged Integrated Access Device or removed it to a location other than one for which a Service address has been provided to Switchtel ; or
vi. may be delayed or unavailable due to network congestion or other problems affecting the network.
B. Fraudulent Use of Long Distance or Toll Services: Customer is responsible for all charges attributable to Customer incurred by the Service including but not limited to authorized or unauthorized charges placed by or through Customer’s equipment or software via any remote access features, or transferring capability or call forwarding, even when such calls are placed fraudulently. In the case of usage-based Services, Customer is responsible for all usage charges even if incurred as the result of fraudulent or unauthorized use of Service, except that Customer shall not be responsible for fraudulent or unauthorized use by Switchtel or its employees.
C. Call Monitoring for Troubleshooting: Customer consents that VoIP calls may be captured and monitored for troubleshooting purposes. A review of call-captures and recordings will be done only when requested on specific telephone numbers and only by authorized Switchtel technical staff for the purposes of identifying VoIP problems.
D. CALEA:Upon receiving notice of a Communications Assistance for Law Enforcement Act (CALEA) request or other lawful court order or subpoena related to any applicable Switchtel Service, Switchtel shall cooperate with the requesting agency as required by law. Customer shall be responsible for notifying Switchtel of CALEA requests.
E. Customer Support: Switchtel Communications provides Tier 2 service and configuration support to the wholesale Customer only. Switchtel Communications does not provide direct service or support to Customer’s end-user clients. Standard support hours are Mon. – Fri. 7:00 AM to 8:00 PM EST. Afterhours support is provided via NOC technician on call.
F. Scheduled Maintenance: Scheduled maintenance of the Switchtel network will not normally result in service interruption or outage. However, in the event scheduled maintenance should require a Service interruption or outage, Switchtel will exercise commercially reasonable efforts to (i) provide Customer with seven (7) days prior written notice of such scheduled maintenance, (ii) work with Customer in good faith to attempt to minimize any disruption in Customer’s services that may be caused by such scheduled maintenance, and (iii) to perform such scheduled maintenance during the non-peak hours of 10:00 p.m. until 4:00 a.m. MST Monday through Wednesday.
G. Abuse and Fraud: Customer will not use Services or allow Services to be used: (i) for fraudulent, abusive, unlawful or destructive purposes including unauthorized or attempted unauthorized access to, or alteration, abuse or destruction of information, or (ii) in any manner that causes interference with Switchtel or another’s use of the Switchtel provided network. Customer will cooperate promptly with Switchtel to prevent third parties from gaining unauthorized access to the Services via Customer’s facilities.
H. Client Information. Customer agrees with the following described use of Subscriber Data and agrees to include in its end user sales agreement the following general terms and conditions governing use of End User’s Subscriber Data:
[End user] agrees that [Reseller Name] and any wholesale provider used by [Reseller Name] may share End User Subscriber Data within its business operations (e.g. parent and affiliate corporations) and with businesses acting on [Reseller Name] behalf to deliver Services to [End User]. End User agrees that [Reseller Name] and any wholesale provider used by [Reseller Name] shall have a limited right to use its Subscriber Data as necessary for [Reseller Name] to perform its obligations under this Agreement, including sharing Subscriber Data with any carrier possessing a Letter of Authorization from [End User].
Subscriber Data means information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier; except that such term does not include subscriber list information.
I. 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 a Force Majeure Event. A Force Majeure Event means any act, event or condition materially and adversely affecting the ability of a Party to perform or comply with any material obligation, duty or agreement required under this Agreement, if such act, event, or condition is beyond the reasonable control of the nonperforming Party or its agents relying thereon, is not the result of the willful or negligent action, inaction or fault of the Party relying thereon, and the nonperforming Party has been unable to avoid or overcome the act, event or condition by the exercise of due diligence, including without limitation: (i) an act of God, epidemic, landslide, lightening, earthquake, fire, explosion, storm, flood or similar occurrence; (ii) an act of public enemy, war, blockage, insurrection, riot, general unrest or restraint of government and people, civil disobedience, sabotage, act of terrorism or similar occurrence; (iii) an order or judgment (including without limitation a temporary restraining order, temporary injunction, preliminary injunction, permanent injunction, or cease and desist order) or other act of any federal, state, county or local court, administrative agency or governmental office or body which prevents a Party’s obligations as contemplated by this Agreement; or (iv) adoption or change (including a change in interpretation, enforcement or permit requirement) of any federal, state or local law after the Effective Date of this Agreement, preventing performance of or compliance with the obligations hereunder. In the event Switchtel is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay Switchtel for the affected Service for so long as Switchtel is unable to deliver the affected Service.
J. Laws, Regulations, Permits: Each Party will comply, at its own expense, with all applicable federal, state, county, and local ordinances, regulations, and codes in performing its obligations hereunder. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services and to do business in the United States. If Switchtel reasonably believes that continued performance of the Services would cause Switchtel or Customer to be in violation of any applicable law, statute, ordinance, court order or regulatory agency rules, Switchtel may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation.
K. Advertising and Publicity; Non-Disparagement: Except for materials already made public, neither Party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other Party’s name or trademarks (or any variation thereof), without the other Party’s prior written consent, not to be unreasonably withheld or delayed. During the Term of this Agreement and for a period of one (1) year thereafter, Customer agrees to take no action which is intended, or would reasonably be expected, to: (a) harm Switchtel or its reputation, or (b) lead to unwanted or unfavorable publicity for Switchtel , including, without limitation, any actions on the Internet or any online forums, blogs, or Facebook or Twitter posts, or any other similar online venues (hereinafter “Online Forums”). In addition, Customer may not setup or in any way administrate any Online Forums that relate, directly or indirectly, to Switchtel or any Switchtel Customers without the express prior written consent of Switchtel . Notwithstanding the foregoing, Switchtel may use Customer’s name and trademarks in a list of customers, or in connection with written sales or promotional materials (which for the avoidance of doubt shall not include any Online Forums without the express prior written consent of Customer). For any Customer or entity with a direct relationship with Switchtel , Switchtel may place a “Powered by” and/or copyright notice, or similar footer at the bottom of any or all of our software screens. Subject to Section 4 either Party may make appropriate disclosures (including regarding this Agreement) pursuant to federal or state securities or other laws, or for the limited purpose of providing information to shareholders or investment analysts.
L. HIPAA: By providing services, Switchtel does not require or intend to access customer data including any confidential health related information of Customer’s clients, which may include data that constitutes Protected Health Information (“PHI”). To the extent that any exposure to PHI is incidental to Switchtel s provisioning of services and not meant for the purposes of managing the PHI or creating or manipulating the PHI, such exposure is allowable under 45 CFR 164.502(a)(1)(iii) of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Rules”).
M. Choice of Law. Unless otherwise specified in the WSA, this Agreement is governed by and construed in accordance with the laws of the State of Florida, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
N. Assignment: Customer shall not assign any of its rights or delegate any of its obligations contained in this Agreement without Switchtel prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer may assign its rights or delegate its obligations without such consent and upon 60 days prior written notice to Switchtel , to (a) one of its wholly owned Subsidiaries/Affiliates, or (b) an entity that acquires all or substantially all of the business or assets of Customer to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise.
O. Relationship of Parties. Unless explicitly stated in the WSA or Customer Order and then only to the limited extent set forth in such WSA or Customer Order, the Parties are independent contractors and nothing herein creates a relationship of partnership, employer and employee, or principal and agent. Neither Party has the authority to bind, act on behalf of, or represent the other.
P. Severability and Modification. If any provision of this Agreement is adjudged by a competent authority to be invalid, void or unenforceable under applicable law, such provision will be modified or eliminated to the minimum extent necessary to affect the intent of the Parties and the remainder of the provision and the Agreement will not be affected thereby and will continue in full force and effect.
Q. Waiver of Default. No waiver or discharge hereof shall be valid unless in writing and signed by the Party against which such amendment, waiver, or discharge is sought to be enforced. A delay or omission by either Party to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant.
R. Amendments. No alteration, amendment, waiver or other change in any term or condition of this Agreement shall be binding unless mutually agreed to in writing by an authorized representative of each Party.
S. Survival. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration (in whole or in part) shall survive any such termination or expiration and continue in full force and effect.
T. Third Party Beneficiaries. Unless expressly provided for otherwise, this Agreement shall not be deemed to create any rights in third parties, including End-Users, of a Party, or to create any obligations of a Party to third parties.
U. Order of Precedence. If there is any conflict or ambiguity between these T&Cs, the WSA, or a Customer Order, the interpretation shall be resolved by giving precedence to such documents in the following order: (1) the Customer Order, (2) the Switchtel Wholesale Master Services Agreement, (3) the Switchtel Terms and Conditions.
V. Construction. Each Party acknowledges that it has reviewed this Agreement and agrees that it is the Parties’ intent that the Agreement will not be construed against either Party. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties with no presumption favoring or disfavoring any Party by virtue of authorship of any term.
W. Entire Agreement. This Agreement including all referenced documents, links and related orders or agreements, constitutes the entire and final agreement and understanding between the Parties with respect to the Service and supersedes all prior agreements, oral or written, relating to the Service, which are of no further force or effect. This Agreement or any Customer Order may be modified only by a mutually executed amendment.
11. Wholesale Business Communications Services.
A. Service Description: Switchtel Business Communications Service is a Cloud based Voice-Over-IP (VoIP) business telephone service which provides nationwide telephone service, PBX type calling features, unified communications, and other capabilities. Switchtel Business Communications Service is available to Switchtel wholesale customers for resale to end-user clients. Customer will connect to Switchtel service using the industry-standard Session Initiation Protocol (SIP) and Switchtel will provide connectivity to the Public Switched Telephone Network (PSTN).
B. Telephone Numbers (TNs). Switchtel shall provide Customer with the Telephone Numbers (TNs) or ported TNs ordered by Customer and accepted by Switchtel. Switchtel will exercise commercially reasonable efforts to gain access to telephone number quantities to support the Services specified by the Customer, but Switchtel does not guarantee telephone number availability.
C. Porting. If Customer elects to port out any TN (a “Porting Number”) currently supported by Switchtel , then Customer agrees that, until such time as the Porting Number is fully ported out and no further traffic for the Porting Number traverses the Switchtel network, Customer is responsible for all charges associated with the Porting Number and shall remain bound by the terms of this Agreement.
D. Customer Premise Equipment (“CPE”). Customer is required to purchase, at its own expense, all hardware and software necessary for the Customer end-user client VoIP application to interoperate with Switchtel Business Communications Services and the Switchtel network. Switchtel does not provide, install, configure or maintain CPE, and Customer agrees not to hold Switchtel liable for the configuration, management, or performance of, or any other issue related to, any CPE used for access to or the exchange of traffic in connection with the Services.
E. Long Distance and Usage based Services: Switchtel will include unlimited 1+ outbound domestic US and Canada long distance calling subject to the limitations and usage requirements in these Terms and Conditions and the Acceptable Use Policy posted in the Switchtel Partner Portal.
i. Charges for international long-distance calling will be billed at the then current service rates reflected in the Switchtel Partner Portal for International pricing.
ii. Directory Assistance (411 or NPA (XXX) 555-1212) will be charged at the then current service rates as reflected in the Switchtel Partner Portal.
iii. Audio Conference Calling charges will be billed at then-current service rates as provided in the Switchtel Partner Portal for conference calling rates.
iv. MAS Announcement and Firebar charges will be billed at then-current service rates as provided in the Switchtel Partner Portal for conference calling rates.
F. Submission of Customer Order(s). To order, partially disconnect, terminate or modify any Service, Customer shall submit to Switchtel a valid Customer Order in the RPP. It is the Customers responsibility to verify that orders are completed. This includes any Services associated with telephone numbers that have been ported out.
G. Service Level Agreement (SLA) and Credits: The Availability Service Level for Switchtel Business Communications Service is 99.99%. The Switchtel Business Communications Service is considered unavailable if such Service is unable to send and receive calls for reasons other than a force majeure event. In the event that the Switchtel Business Communications Service becomes unavailable for reasons other than a Force Majeure Event, Customer will be entitled to a service credit to be applied to the monthly recurring charges associated with the affected Switchtel Business Communications Service based on the cumulative unavailability of the affected Switchtel Service in a given calendar month as set forth in the following table:
Cumulative Unavailability Service Level Credit
15 Minutes to 2 Hours 1 Day
2 Hours to 4 Hours 2 Days
Each Additional 2 Hours 1 Day
Maximum Service Level Credit 30 Days
