skyePBX ORIGINATION SERVICE TERMS AND CONDITIONS
1.0 SERVICE DESCRIPTION
1.1 VoIP Origination Service. Voice over Internet Protocol Origination (“VoIP Origination”) is a wholesale switched origination service that allows calls originating from the public switched telephone network (“PSTN”) in various markets to access Customer’s End Users through skyePBX’s IP Network using direct inward dial (“DID”) numbers either provided by skyePBX to Customer or ported to Customer using local number portability (“LNP”). The calls originating from the PSTN are converted to data packets in skyePBX’s IP Network and then delivered to Customer through a Session Initiation Protocol (“SIP”) interconnection port. Customer may interconnect to skyePBX via the public Internet. These arrangements collectively are referred to hereinafter as the “Interconnection”. Customer understands and agrees that skyePBX shall have no liability whatsoever associated with Customer’s use of the public Internet for access to skyePBX’s VoIP Origination Service or otherwise, including without limitation with respect to any failure, delay, loss of data or other damages or losses.
1.2 Intended Use of Service. Notwithstanding that Customer may actively be engaged in, or may become actively engaged in, providing numerous telecommunications or telecommunications related services, skyePBX’s VoIP Origination service is designed for and limited to local Calls originated from a caller dialing an skyePBX-issued or ported DID number. skyePBX does not support the delivery of collect calls or third party billing information via Customer’s Interconnection.
1.3 Service Components. VoIP Origination Service consists of the following components: Originating Markets, Interconnection, IP Addresses, Additional DIDs. The following optional features are available for additional charges: End User Local Number Portability, End User Caller Name and Number. There is a separate charge for each of the optional features.
2.1 Customer is responsible for paying skyePBXs rates for VoIP Origination Services as they may be set forth in a separately available schedule, an applicable Service Order(s) or a Tariff.
2.2 Customer agrees to pay a recovery charge of $.59 for any call placed to a toll-free number that is originated from a payphone.
3.1 Service Orders for VoIP Origination services shall be for a minimum of one (1) month from the applicable Start of Service Date. Unless a Party notifies the other Party in writing not less than 10 days prior to the expiration of the original or renewal term that it intends not to renew the Service Order, it shall automatically renew on a month-to-month basis at the same pricing, terms and conditions set forth herein.
4.1 Regulations. skyePBX’s VoIP Origination Service may only be used for enhanced services as defined by Section 64.702(a) of the FCC’s Rules and Regulations, 47 C.F.R. 64.702(a).
5.0 PRODUCT TERMS AND CONDITIONS
5.1 Technical Support and Customer Care. skyePBX will provide technical support and customer care to Customer; provided, however, Customer shall be solely responsible for all technical support and customer care to its End Users, including but not limited to activities relating to the ordering, provisioning, billing and maintenance of services to its End Users. Additionally, skyePBX shall not be responsible for sending notices relating to VoIP Origination Services to Customer’s End Users. Customer shall be responsible for any notices, bill inserts, or other information required by any public utility commission (“PUC”) rule, order, request, or otherwise required by law to be provided to End User.
6.0 DID NUMBERS
6.1 Additional DID Numbers. Customer may order additional blocks of numbers in addition to the minimum DID numbers provided in accordance with Section 1.3 above. Any and all numbers provided by skyePBX shall be in skyePBX’s sole discretion and subject to the limitations set forth in this section 5.0.
6.2 Assignment of DID Numbers. To the extent Customer’s request for VoIP Origination Service involves skyePBX obtaining numbers on the Customer’s behalf, skyePBX will undertake in good faith effort to procure and provide the numbers requested, but skyePBX does not and cannot guarantee that skyePBX will be able to provide any or all numbers requested by Customer. Customer represents and agrees that it will comply with all applicable laws, rules, regulations, orders and decrees, relative to any use of numbers by Customer. The assignment of any specific number to Customer will be made at the sole discretion of skyePBX. Customer has no property right to any numbers associated with any Services furnished by skyePBX. skyePBX reserves the right to assign, designate or change numbers associated with the Services provided hereunder, including without liitation, the skyePBX serving Central Office prefixes associated with such numbers, when necessary due to technical issues or as required by any governmental authority, the North American Numbering Plan Administrator (“NANPA”), the Pooling Administrator (“PA”) or other reasons required by law. skyePBX may reclaim any numbers not assigned by Customer to its End Users when skyePBX deems it necessary in the conduct of its business or as required by any governmental authority, NANPA, the PA or any other reason required by law. Customer agrees to fully cooperate with skyePBX to effect any number of changes required hereunder in the manner directed by skyePBX, including without limitation, procuring and providing to skyePBX additional numbering resources from NANPA or the PA, if and to the extent requested by skyePBX. Without limiting any contrary terms in the Agreement or in any Tariff, skyePBX shall have no liability to Customer or others associated with any number of resource issues beyond skyePBX’s control.
7.0 LOCAL NUMBER PORTABILITY
7.1 End User Authorization. Prior to placing any orders with skyePBX to facilitate Customer’s provisioning of Service to Customer’s End Users, Customer shall obtain and shall have in its possession a Letter of Authorization (“LOA”) for each of the Customer’s End Users. Customer shall be responsible for obtaining End Users. authorization (in accordance with state and federal law or regulation pertaining to such authorizations) prior to requesting a change in the End Users. provider of local exchange service. In requesting a change in the End Users. service provider (“Port-in Order” or “LNP”), Customer shall, upon request, provide a copy of the End User’s LOA directly to skyePBX prior to placing the Port-in Order with skyePBX. Consequently, skyePBX shall have no obligation to provide Services related to the Port-in Order until provided such LOA. Furthermore, prior to placing a Port-in Order, Customer shall be responsible for obtaining all information needed to process the disconnect order and re-establish service to the End User.
7.2 Authorization Dispute. Should an End User dispute, or a discrepancy arise, regarding the authority of Customer to act on behalf of the End User, Customer is responsible for providing written evidence of its authority to skyePBX within three (3) business days. If there is a conflict between the End User designation and the Customer’s written evidence of its authority, skyePBX shall honor the designation of the End User and change the End User back to the previous service provider. If Customer does not provide the LOA within three (3) business days, or if the End User disputes the authority of the LOA, then Customer must, by the end of the third business day:
1. Notify skyePBX to change the End User back to the previous service provider.
2. Provide any End User information and billing records Customer has obtained relating to the End User to the previous service provider.
3. Notify the End User and skyePBX that the change has been made; and
4. Remit to skyePBX a charge of $150.00 (“slamming charge”) as compensation for the charge back to the previous service provider.
7.3 Port-Out of Numbers. In the event that skyePBX receives a valid request by a third party carrier for customer proprietary network information, including but not limited to customer service records related to a number assigned by skyePBX to Customer and/or Customer’s End-Users, Customer hereby authorizes skyePBX to provide any such information in skyePBX’s possession to the third party carrier. If skyePBX does not have information sufficient to satisfy the request by the third party carrier, Customer hereby authorizes skyePBX to instruct such third party carrier to contact Customer directly and Customer shall provide any such information in its possession to the third party carrier consistent with industry standards. Furthermore, in the event skyePBX receives from a third party carrier a port-out request related to a number assigned to Customer, skyePBX shall port out such number in compliance with procedures set forth by the Federal Communications Commission and/or the applicable PUC. Customer will pay skyePBX a $15.00 charge (which may be subject to change from time to time) for each telephone number ported out or disconnected within one (1) year of being ported in. Customer will pay skyePBX a $5.00 charge (which may be subject to change from time to time) for each telephone number ported out or disconnected past one (1) year of being ported in.
8.0 VOIP SERVICE INTERFACE
8.1 VoIP Services and API Interface. To allow Customer to manage the LNP of its End Users. telephone numbers and to add and change its End Users. Directory Listings and CNAM information via the VoIP Services portal, skyePBX has developed a web browser-based interface (“VoIP Services Interface”) and an XML based Application Programming Interface (“API”). Customer, or its authorized designee, may access the VoIP Services Interface to create, correct or supplement orders related to LNP, Directory Listings or CNAM. Customer, or its authorized designee, may access the API Interface to provision and/or alter services. Customer accepts sole responsibility for maintaining the security of their user IDs and passwords, and skyePBX shall have no liability resulting from any Customer failure to maintain the security of this user information. Customer will assume all responsibility, risk, and potential liability for the provisioning (or non-provisioning) of any and all services, and all End User information associated directly or indirectly with LNP, Directory Listings and CNAM.
8.2 Accurate Information. Customer must submit to skyePBX complete and accurate End User information for LNP, Directory Listings and CNAM and shall use the VoIP Services Interface and/or API. Customer represents and warrants that all End User information submitted via the VoIP Services Interface is true and correct, and skyePBX has no liability to Customer or its End Users regarding the validity, accuracy or completeness of the End User information. In addition, Customer shall include in its tariffs or contracts a limitation of liability that limits its own, skyePBX’s, and all of skyePBX’s upstream service providers to any End User for any error or omission in any Directory Listing or CNAM information submitted in connection with the VoIP Origination Services.
8.3 Indemnification. Customer and/or End User shall indemnify, defend, and hold harmless skyePBX and its Affiliates and all of their employees, directors, officers, and agents from and against all claims, demands, actions, causes of ations, damages, liabilities, losses, and expenses (including reasonable attorney’s fees) incurred as a result of a third party claims arising from the use of skyePBX’s VoIP Services Interface and/or API.
9.0 911 SERVICES. CUSTOMER REPRESENTS AND WARRANTS THAT IT WILL ASSUME ALL RESPONSIBILITIES IN CONNECTION WITH THE FURNISHING OF 911 SERVICE TO ITS END-USERS AND, FURTHER, THAT IT WILL NOT DELIVER ANY 911 TRAFFIC TO THE COMPANY.
9.1 Customer Responsibility for 911 Services. Customer hereby represents and warrants that it is not reliant on skyePBX to provide 911, E911 or any other emergency services (“911 Services”). Customer will assume all responsibility, risk, and potential liability for the provisioning (or non-provisioning) or any and all 911 Services associated, directly or indirectly, with the VoIP Origination Service. Customer will indemnify and hold skyePBX harmless from any claims resulting from Customers. End Users dialing or attempting to dial the digits 9-1-1 or any other emergency services number or from any person who may be affected by the dialing of the digits 9-1-1 or any other emergency services numbers.
9.2 911 Costs. Customer hereby acknowledges and agrees that it is solely responsible for all costs and expenses associated with 911 Services. These costs and expenses include, but are not limited to, the imposition of fees and charges by state and local authorities, whether now or in the future, for the funding of 911 Services, 911 assessments, taxes and the like.
9.3 Nature of Traffic. Customer represents and warrants that, anything herein to the contrary notwithstanding, it will not deliver an 911 traffic to skyePBX for transport and termination.
10.0 CANCELLATION AND EARLY TERMINATION CHARGES
10.1 If VoIP Origination Service or any component thereof, (collectively referred to as “VoIP Origination Service”) is cancelled after a service order has been accepted by skyePBX, but prior to the Start of Service Date, Customer shall pay one (1) month’s recurring charges plus any applicable service ordering and installation charges. If VoIP Origination Service is terminated after the Start of Service Date, Customer is liable for all charges, which Customer agrees is reasonable, associated with the service ordering and installation as well as one hundred percent (100%) of the MRC’s for the remaining months in the term of the Service Order. It is agreed that skyePBX’s damages in the event of Service Termination shall be difficult or impossible to ascertain. This provision is intended therefore to establish liquidated damages in the event of disconnection and is not intended as a penalty.
11. COMPLETE AGREEMENT/ADDITIONAL TERMS. This Agreement, incorporating all the items reference herein, represents the complete agreement of the parties, and supersedes all other agreements whether written or oral. This agreement may be modified only by written agreement executed by authorized parties, changes to the URL sites referenced, changes to tariffs or as otherwise specifically provided herein. Neither Electronic Mail nor Instant Messaging (“IM” shall be considered a “writing” sufficient to change, modify, extend, or otherwise affect the terms of the Agreement. Any modification to the Agreement not authorized by skyePBX shall render the Agreement null and void and subject to immediate termination. This agreement shall be governed by the substantive law of the State of New Jersey without reference to it principles of conflicts of laws, and Customer consents to the jurisdiction and venue of the Federal District Court in New Jersey, Newark.