INTERACTIVE SERVICES NETWORK, INC. (IPFONE)
STANDARD TERMS AND CONDITIONS OF SERVICE

1. SCOPE

These terms and conditions apply to the provision of all telecommunications and related services (“Services”) by Interactive Services Network, Inc. d/b/a IPFone, on behalf of itself and its operating affiliates (“IPFone”) to Customer under the service agreement (“Agreement”) to which this schedule is a part. The Services will be offered in each area to the Customer by IPFone or by an entity (the “Authorized Entity”), which is an affiliate of IPFone authorized to provide the Services in the applicable jurisdiction. The terms and conditions of this Agreement are, and shall be, applicable to the Services provided to the Customer by each Authorized Entity.

2. TERM

The Agreement shall be effective on the Effective Date indicated on the first page of the Agreement. The term of the Agreement shall commence upon the later of (i) installation of the initial Service or (ii) the Effective Date, and shall continue in full force and effect for the time period indicated on the first page of the Agreement (“Term”), unless earlier terminated in accordance with its terms. After expiration of the Term, the Agreement shall renew automatically for successive renewal terms, each for a period of time equal to the original Term, unless either Party serves the other Party with written notice of such Party’s intent not to renew the Agreement at least thirty (30) days prior to expiration of the then current Term. IPFONE’S provision of Services is contingent upon Customer’s compliance with IPFONE’S credit requirements, which requirements may be revised during the Term hereof in IPFONE’S sole reasonable discretion.

3. RATES AND CHARGES

The rates and charges for the Services shall be those set forth in the rate schedule to the Agreement (the “Rate Schedule”) or other appropriate schedule thereto and/or IPFONE’S tariffs, as applicable and as amended from time to time. The rates and charges in the Rate Schedule apply only to the Services provided at the service address listed on the Rate Schedule of the Agreement. Each additional Customer location added after the Effective Date of the Agreement shall require its own rate schedule. For any IPFONE service used by Customer for which a rate is not specified in the Agreement, IPFONE’S standard business rate shall apply.

Notwithstanding the foregoing, Customer guarantees to IPFONE payment of a minimum monthly fee in the amount set forth on the first page of the Agreement (“Minimum Monthly Fee”). For each month Customer agrees to pay the greater of (i) the total amount otherwise due for the month for all Services and any Equipment provided under the Agreement, or (ii) the Minimum Monthly Fee. Compliance with the Minimum Monthly Fee shall be based on Customer’s Service charges prior to application of any taxes or surcharges.

4. TAXES AND SURCHARGES

In addition to the rates and charges for the Service(s), Customer shall be responsible for payment of all local, state and federal taxes, fees and surcharges, however designated, imposed on or based upon the provision, sale, or use of the Services. Customer shall be responsible for the payment of all surcharges in effect from time to time, including but not limited to USF, PICC, and payphone surcharges, as required or permitted by applicable law, regulation or tariff and/or as specified on the IPFONE website at wwww.ipfone.com To the extent a sale is claimed to be subject to a tax exemption, and Customer provides IPFONE with a proper tax exemption certificate as authorized or required by statute or regulation of the jurisdiction providing said tax exemption, IPFONE agrees to exempt Customer from the collection of taxes to the extent warranted by such certificate(s). Failure to timely provide said certificate will result in no exemption being available to Customer for any period prior to the date that the Customer presents a valid certificate.

5. BILLING AND PAYMENT

Billing for a Service shall commence on the earlier of: (i) use of the Service by Customer; or (ii) thirty (30) days after delivery of the Service to Customer’s service address. All bills are due and payable upon receipt. If Customer’s bill is not paid by the date which is thirty (30) days after the invoice date listed on the bill (the “Due Date”), Customer also shall pay IPFONE a monthly late charge amount equal to 1.5% of the unpaid balance due (or such lesser amount as is the maximum amount permitted under applicable law). Customer must provide IPFONE with written notice of any disputed charge(s) within ninety (90) days after the invoice date listed on the bill or shall be deemed to have waived its rights to dispute the charges. If the dispute is filed on or before the Due Date for the respective invoice, Customer shall pay the invoiced amount minus the disputed amount by the Due Date. Customer shall have no right to withhold amounts not disputed by the Due Date, provided that payment of an invoice shall not be deemed a waiver of Customer’s rights to later dispute an invoice within the time period established in this Section. The dispute notice shall set forth in writing in reasonable detail the information concerning the disputed charges and reasons for the dispute. IPFONE and Customer shall attempt in good faith to promptly resolve any objection to the invoiced amount. If the dispute is subsequently resolved in favor of IPFONE, Customer shall pay the disputed amount previously withheld within ten (10) days of such resolution, including interest at the rate specified above from the original due date. If the dispute is subsequently resolved in favor of Customer, IPFONE shall issue a credit on Customer’s subsequent invoice for the disputed amount. If IPFONE initiates legal proceedings to collect any amount due hereunder and IPFONE substantially prevails in such proceedings then Customer shall pay the reasonable attorneys’ fees and costs incurred by IPFONE in prosecuting such proceedings and any appeals there from.

6. EQUIPMENT

In order to utilize the Service, Customer must use compatible and certified telephone equipment (“Equipment”). If Customer do not possess compatible Equipment, Customer may purchase Equipment from IPFone when Customer order for the Service. Customers are responsible for the condition of the Equipment provided to you or which you otherwise utilize for the Service. Customers are responsible for replacing all lost, stolen or broken Equipment. Replacement charges will be based on the retail price of Equipment, plus applicable shipping costs and taxes. Customer agree to immediately notify IPFone of any lost or stolen Equipment and shall cooperate with IPFone in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. IPFone’s liability for delivery shall cease, and title to such Equipment and all risk of loss or damage shall pass to Customer, upon delivery to a common carrier for shipment. Other than as expressly set forth below, Equipment may not be returned by Customer for any reason without prior approval of IPFone. If Customer cancel the Service during the first thirty (30) days following registration, then (subject to the conditions set forth below) Customer may return purchased Equipment. The returned Equipment must be returned in its original packaging, fully functional, show no signs of wear and tear, and be accompanied with all manuals, cords, wires, brochures, peripheral devices, and accessories that were originally shipped with the Equipment. IPFone may, in its sole discretion, decline Customer return and charge You for the full retail value of the Equipment. Customers are responsible for all return shipping charges for any Equipment returned to IPFone for any reason, including situations in which hardware is covered under warranty. All returns that do not conform to the procedures may be subject to an RMA Administrative Fee of up to $25.00 per piece of Equipment.

7. TERMINATION

A party may terminate the Agreement on thirty (30) days’ written notice if the other party materially breaches the Agreement and such breaching party fails to cure the breach within such notice period, provided that the cure period for breach of any of Customer’s payment obligations shall only be ten (10) days.
A party may terminate the Agreement upon written notice to the other party if (i) the other party dissolves or becomes insolvent or bankrupt; (ii) the other party makes an assignment for the benefit of creditors; (iii) the other party suspends the transaction of its usual business or consents to the appointment of a trustee or receiver; (iv) a trustee or receiver of the other party is appointed; or (v) any bankruptcy, reorganization, insolvency or similar proceeding is instituted by or against the other party and not dismissed within thirty (30) days.

If Customer (or any Customer affiliate) is in default of the terms of any other agreement between IPFONE (or any IPFONE affiliate) and Customer (or any Customer affiliate), including but not limited to any payment obligation to IPFONE or its affiliates, then IPFONE, at its sole option, may consider such default as a default under this Agreement and provide notice of default in accordance with the terms of this Agreement. Customer further understands and agrees that 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 (or any Customer affiliate) has entered into with IPFONE and/or its affiliates and understands and agrees that any such breach shall authorize IPFONE and/or any of its affiliates to immediately suspend performance under, and or terminate, said agreements with Customer (or Customer’s affiliates) for default.
In addition to IPFONE’s remedies under Section 5 and Section 6(a) hereof, IPFONE shall have the right on fifteen (15) days prior notice to immediately and without further notice suspend Services to Customer in the event of nonpayment by the Due Date of any charges not disputed in accordance with the provisions of Section 5.

8. TERMINATION LIABILITY

If the Agreement is terminated anytime after the Effective Date of the Agreement but prior to the expiration of the Term, except if terminated by Customer pursuant to Section 2 or 6 above, Customer shall pay to IPFONE, immediately upon demand, (i) all sums then due and unpaid plus (ii) an amount equal to the Minimum Monthly Fee times the number of months left in the Term. No termination liability will apply in the event the Agreement is terminated by Customer pursuant to Section 2 or 6 above, however, in such event Customer shall be responsible for payment of all charges incurred prior to the termination date.

9. COMPLIANCE WITH LAWS

Each party shall comply with all applicable laws, regulations, court decisions or administrative rulings regarding the provision or use of the Services. Without limiting the foregoing, all customers that utilize the Services for the purpose of making telephone solicitations must comply with the national do-not-call requirements, including the rules as set forth in 47 C.F.R. Section 64.1200 and 16 C.F.R. Part 310. Failure to do so shall constitute a material breach of the Agreement.

10. UNAUTHORIZED USE OF SERVICES

Customer, and not IPFONE, shall bear the risk of loss arising from any unauthorized or fraudulent usage of Services provided under the Agreement to Customer. IPFONE reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to particular calling numbers or geographic areas) to prevent or terminate any fraud or abuse in connection with the Services, or any use thereof, provided, however, that any such action shall be consistent with applicable federal and state laws, rules, and regulations.

11. WARRANTY

THE QUALITY OF SERVICE PROVIDED HEREUNDER SHALL BE CONSISTENT WITH COMMON CARRIER INDUSTRY STANDARDS, GOVERNMENT REGULATIONS AND SOUND BUSINESS PRACTICES. IPFONE MAKES NO OTHER WARRANTIES ABOUT THE SERVICE PROVIDED HEREUNDER, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IPFONE DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON IPFONE’S BEHALF AND THE CUSTOMER MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY OF IPFONE. THIS SECTION SURVIVES TERMINATION OF THE AGREEMENT.

12. LIMITATIONS OF LIABILITY.

a) IN NO EVENT SHALL EITHER PARTY (OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS) BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF CUSTOMERS, CLIENTS OR GOODWILL ARISING IN ANY MANNER FROM THE AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE HEREUNDER. THIS DOES NOT LIMIT CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF ANY AND ALL PROPERLY DUE CHARGES. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY AND TERMINATION OF THE AGREEMENT.

IPFONE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY SERVICE PROVIDED TO CUSTOMER (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE INSTALLATION, DELAY, PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR RESTORATION OF ANY SUCH SERVICE) OR BREACH OF THE AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE AS FOLLOWS: (I) FOR A SERVICE QUALITY CLAIM (INCLUDING INTERRUPTION IN SERVICE), THE OUTAGE CREDIT UNDER THE SERVICE LEVEL AGREEMENT; (II) FOR TANGIBLE PROPERTY DAMAGE OR PERSONAL INJURY CAUSED BY IPFONE’S NEGLIGENT ACTS OR OMISSIONS, OR FOR ANY DAMAGES ARISING FROM THE WILLFUL MISCONDUCT OF IPFONE, THE AMOUNT OF PROVEN DIRECT DAMAGES; AND (III) FOR ALL OTHER CLAIMS NOT COVERED BY THE FOREGOING SUBSECTIONS, THE AMOUNT OF PROVEN DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THE AGREEMENT FOR THE PERIOD DURING WHICH SERVICES WERE AFFECTED. IN NO EVENT SHALL IPFONE’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY CUSTOMER TO IPFONE HEREUNDER. THIS SECTION SURVIVES TERMINATION OF THE AGREEMENT.

IPFONE also shall not be liable for any damages arising out of or relating to: interoperability, interaction, access or interconnection problems with applications, equipment, services, content, or networks not provided by IPFONE; Service interruptions or lost or altered messages or transmissions (except to the extent credit allowances are specified in the applicable Service Level Agreement); or unauthorized access to or theft, alteration, loss or destruction of Customer’s, Users’ or third parties’ applications, content, data,’ programs, information, network or systems.

13. FORCE MAJEURE

Except with respect to Customer’s payment obligations, notwithstanding any other provision of the Agreement, neither Party shall be liable to the other Party for any delay or failure in performance of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, accident, war, strike, embargo, governmental requirement, civil or military authority, Act of God, inability to secure materials or labor or any other causes beyond its reasonable control. Any such delay or failure shall suspend the Agreement until the Force Majeure ceases.

14. RELATIONSHIP OF PARTIES

Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between IPFONE and Customer. The Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act.

15. IPFONE FACILITIES

Equipment furnished by IPFONE shall remain its property and shall be returned to IPFONE on expiration or termination of the Agreement or as earlier requested by IPFONE, in good condition, reasonable wear and tear excepted. Customer shall reimburse IPFONE for any loss of, or damage to, IPFONE’S facilities or equipment on the Customer’s premises, except loss or damage caused by IPFONE’S own employees, agents or contractors.

16. NOTICES

All notices and communications under the Agreement shall be in writing and shall be given by personal delivery, by registered or certified mail, return receipt requested, or by facsimile transmission, addressed to the respective Party as set forth in the first page of the Agreement or to such other address as may be designated in writing by such Party. Notice shall be deemed given upon receipt.

17. ENTIRE AGREEMENT

The Agreement, including these Standard Terms and Conditions and all other schedules referenced in the Agreement or at www.ipfone.com and which are applicable to the Services purchased by the Customer, and any attached schedules signed by both parties, represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the Service. Any modification to this Agreement shall be in writing signed by authorized representatives of both Parties. In case of any conflict between the provisions of these Standard Terns and any schedule (including any Additional Terms), the provisions of these Standard Terms shall take precedence unless otherwise indicated in the signed attached schedule. This Agreement and any amendment of the terms hereof, may be signed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument.

18. WAIVER

No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing and signed by the Party to which it is attributed. No consent by a Party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.

19. CPNI

Under federal law, Customer has the right, and IPFONE has a duty, to protect the confidentiality of information about the amount, type, and destination of Customer’s service usage (CPNI). Customer hereby consents to the sharing of Customer’s CPNI or other personal information with Interactive Services Network, Inc. and its affiliates, agents and contractors, solely for the purpose of developing or bringing to Customer’s attention any products and services, or in the event of any merger, sale of some or all of the company assets or acquisition as well as in any insolvency, bankruptcy or receivership proceeding in which CPNI or other personal information would be transferred as one of the business assets of the company. This consent survives the termination of Customer’s Service and is valid until revoked by Customer. To remove this consent at any time, Customer must notify IPFONE in writing at 1035 NE 125th ST, North Miami, 33161 Attn: Customer Service and provide the following information: (1) Customer name, (2) Service billing address, (3) telephone number including area code, and (4) service account number. Removing consent will not affect the Customer’s current Service.

20. PARTIAL INVALIDITY

If any provision of the Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable, but rather the Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, the Parties shall promptly attempt to negotiate a substitute therefore.

21. ASSIGNMENT

Neither party may assign the Agreement without the written consent of the other party, which consent shall not unreasonably be withheld or delayed; provided that no such consent shall be required for any assignment by a party to an entity that either controls or is controlled by or is under common control with that party; or to an entity which succeeds to all or substantially all of such party’s assets whether by merger, sale or otherwise; or to any institutional lender to whom this Agreement is assigned as collateral security for any indebtedness of the assignor or any affiliate of the assignor. In the event of any assignment by Customer as permitted hereunder, the assignee must comply with IPFONE’S credit and security requirements.

22. GOVERNING LAW

The Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Florida without regard to its conflict of laws principles. Each party consents to personal jurisdiction in the state and federal courts of the State of Florida.
[End of Schedule]

RENTAL PROGRAM & GENERAL CONDITIONS

 

IPFONE’s Rental Program Agreement (“Rental Program”) is available to those customers who have entered into a written contract for the purchase of IPFONE Voice Services with a minimum Initial Term of at least thirty-six (36) months and a Renewal Term of at least twelve (12) months. For clarification, the Rental Agreement must be conterminous with the IPFONE Agreement and for an Initial Term of at least thirty -six (36) months, and the customer must enter into the Rental Agreement at the same time as the Start Date of the IPFONE Voice Plan Agreement. This Phone Rental/Lease Program is offered and available to United States based Businesses only.

This Rental Agreement, when entered into, will form part of the IPFONE Plan Agreement, the terms of which are incorporated herein by reference, including, without limitation, all defined terms.

Any capitalized terms not defined herein will have the same meaning as in the IPFONE Office Plan Purchase Agreement, as applicable.

Rental Services

This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from IPFONE (collectively, the “Rental Services”). IPFONE charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of your recurring bill from IPFONE, you agree to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as your payments for IPFONE Office Services, as defined in your IPFONE Office Plan Purchase Agreement. IPFONE will pro-rate the Rental Fees for any equipment that is rented, for the initial period from the start of the rental period until the end of then-current billing period for the Office Services, and the start of the rental will begin on the date a Rental Device is recorded as delivered by a designated courier (the “Rental Start Date”).

The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Office Services billing period in which the end of such 30 day period occurs, (b) the termination of the IPFONE Office Plan Purchase Agreement. Notwithstanding the above, at any time within thirty (30) days after the Rental Start Date, you may terminate the Rental Services with respect to a Rental Device immediately upon written notice from you to IPFONE, without paying any Rental Fees for such Rental Device.

Upon any termination of the Rental Agreement or Rental Services, you agree to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with IPFONE’s written instructions and in accordance with the Return or Purchase Rights section of this Rental Agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If you do not return a Rental Device (subject to IPFONE’s inspection and acceptance of the returned Rental Device in its reasonable discretion) within thirty (30) following the termination of the Rental Services for such Rental Device, you will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current IPFONE list price shown on IPFONE’s web site, or (2) after such 12 month period, 80% of such list price, and you agree to pay the applicable purchase price.

If you wish to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Rental Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.

The Rental Fees for the Rental Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or IPFONE cost price, as determined by the tax law in the jurisdiction of purchase or rental.

Rental Devices Ownership; Damage and Loss

IPFONE is and will remain the owner of each Rental Device unless title is conveyed to you in writing following IPFONE’s confirmation to you of its receipt of your payment in full of the purchase price for the Rental Device. You will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines IPFONE’s ownership of each Rental Device. IPFONE may, without notifying you, assign IPFONE’s interest in any Rental Device, and in that event, IPFONE’s assignee will have all of IPFONE’s rights in the Rental Device under this Agreement, but none of IPFONE’s obligations. You agree not to assert against IPFONE’s assignee any claims, offsets, or defenses you may have against IPFONE. Upon IPFONE’s request, you will execute and deliver to IPFONE any documents or forms for protecting IPFONE’s ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code. Upon receipt of each Rental Device, you will examine each Rental Device, and unless you notify IPFONE within five business days of your receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. In the event that any Rental Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify IPFONE in writing and pay IPFONE a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current IPFONE list price shown on IPFONE’s web site, or (2) after such 12 month period, 80% of such list price. This obligation does not apply to any damage to a Rental Device that is covered by the manufacturer’s warranty. Exclusions. IPFone will not replace any rental equipment if its testing and examination disclose that the alleged defect or malfunction in the product does not exist or results from (a) Abuse, misuse, negligent acts or omissions of yours and persons under Your control; or (b) Acts of third parties, acts of God, accident, fire, lighting, power surges or outages, or other hazards.

Rental Device Usage

You will ensure that: (a) each Rental Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by IPFONE, as may be updated by IPFONE or the manufacturer of the Rental Device from time to time; (b) each Rental Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Rental Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Rental Device may not be removed, defaced, or otherwise obstructed; and (e) each Rental Device will only be repaired subject to IPFONE’s express written authorization and in accordance with IPFONE’s instructions and requirements.

Return or Purchase Rights

When you return a Rental Device, you agree to return a fully functional and non-damaged Rental Device to IPFONE, at your risk and cost, and you agree that, to the extent that you do not do so, you will be obligated to pay IPFONE a thirty-five dollar ($35.00) re-stocking fee. You agree to pay all shipping and handling charges related to any Rental Device and related hardware returns.

All Rental Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Rental Device. At our discretion, we may decline your return or charge you an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.
Before returning any Rental Device or hardware that has data in its memory, please transfer all files you wish to retain to another file source. Once the hardware is returned, your files cannot be recovered and you release us of any liability for any lost, damaged, or destroyed files, data, or other information.

Purchases

You may purchase a Rental Device at any time following 12 months from the date you received the Rental Device. You agree to purchase the Rental Device for 80% of the Rental Device’s then-current IPFONE list price shown on IPFONE’s web.

 

SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) sets forth the provisions and commitments relating to service quality between Interactive Services Network, Inc. (“IPFONE”), and Customer. This SLA is hereby added as a schedule to the service agreement (“Agreement”) between Customer and IPFONE.
General Standard. IPFONE will use reasonable efforts under the circumstances to maintain its over-all network quality. The quality of service provided hereunder shall be consistent with other common carrier industry standards, government regulations and sound business practices.
Interruptions in Service. Subject to the provisions of Section 6 hereof, interruptions in service will be credited to Customer as set forth below for the part of the service that the interruption affects. In the event that Customer subscribes to data services from IPFONE, IPFONE may offer additional service level standards with respect to such services. In such event, a service schedule shall be added to this SLA. The provisions of this SLA shall apply to the interpretation of the service schedule.

Credit for Interruptions.

An interruption period begins when Customer reports a service, facility, or circuit to be interrupted through the opening of a trouble ticket and makes it available for testing and repair. An interruption period ends when the service, facility, or circuit is operative. If Customer reports a service, facility, or circuit to be inoperative but declines to make it available for testing and repair, it is considered to be impaired, but not interrupted.

For calculating credit allowances, every month is considered to have 30 days. A credit allowance is applied on a pro rata basis against the monthly recurring charges for the affected service and is dependent upon the length of the interruption. Only those facilities on the interrupted portion of the circuit will receive a credit. No credit will be given on the usage sensitive portion of the service and no credit shall apply for interruptions with respect to the advantage service products.

A credit allowance will be given for interruptions of 30 minutes or more, upon written request of the customer no later than ten (10) business days after the occurrence of the outage to either Customer’s IPFONE Account Manager (if applicable) or to the IPFONE customer support center in Fairport, New York. Credit allowances will be calculated as follows:

If the interruption continues for less than 24 hours: 1/30th of the monthly recurring charge if it is the first interruption in the same billing period, 2/30ths of the monthly recurring charge if there was a previous interruption of at least 24 hours in the same billing period.
if the interruption continues for more than 24 hours, 1/30 of the monthly recurring charge for the first 24 hours and 2/30ths of such rate for each additional 24 hours (or fraction thereof); however, if service is interrupted for over 24 hours, more than once in the same billing period, the 2/30ths allowance applies to the first 24 hours of the second and subsequent interruptions
Two or more interruptions of thirty minutes or more during any one 24-hour period shall be considered as one interruption.

Maximum Credit

In no event may the credits provided for hereunder (either individually or on a cumulative basis) in any billing period exceed the total monthly recurring charges for that period for the service and facilities furnished by IPFONE. IPFONE shall issue only one credit for the same incident in the same month, regardless of how many of the parameters in Section 2 above were affected. The credits set forth in this SLA shall be IPFONE’s sole liability and Customer’s sole remedy in the event of any interruption and under no circumstances shall an interruption be deemed a breach of the Agreement.

“Interruption” Defined. For the purpose of applying this provision, the word “interruption” (whether capitalized or not) shall mean a complete loss of service resulting in the inability to complete calls due to equipment malfunction or human errors for a continuous period of more than thirty (30) minutes. “Interruption” does not include and no allowance shall be given for service difficulties such as slow dial tone, circuits busy, latency or other network and/or switching capacity shortages. No allowance shall be made for interruptions due to electric power failure where, by the provisions of this Agreement, Customer is responsible for providing electric power.

Limitations on Credit Allowances

No credit allowance will be made for:
interruptions arising from the acts or omissions of, or non-compliance with the provisions of the Agreement or any schedule thereto (including without limitation this SLA, the Internet Standard Terms and Conditions or Acceptable Use Policy) by, Customer or any authorized user, or any interruptions due to any party other than IPFONE or for events happening on any other party’s network, including but not limited to internet service providers or other common carriers connected to, or providing service connected to, the service of IPFONE or to IPFONE’s facilities. Interruptions due to the failure or malfunction of non-IPFONE equipment, including service connected to Customer provided electric power; e) Interruptions of service during any period in which IPFONE is not given full and free access to its facilities and equipment for the purpose of investigating and correcting interruptions; Interruptions of service during any scheduled maintenance period or when Customer has re-leased service to IPFONE for maintenance purposes or for implementation of a Customer order for a change in service arrangements; Interruptions of service due to force majeure events beyond the reasonable control of IPFONE.

Schedule A to Service Level Agreement
Internet Services Parameters

Scope

This schedule to the Service Level Agreement (“SLA”) between Customer and IPFONE provides Customers subscribing to the IPFONE Internet Service with certain rights and remedies regarding the performance of the IPFONE Internet Network. The “IPFONE Internet Network” means the IPFONE owned and operated Internet Protocol (IP) routing infrastructure consisting of selected IPFONE points of presence (“POPs”) and the connections between them in the United States. The IPFONE Network does not include (i) customer premise equipment; (ii) any local loop or access facilities connecting Customer’s premises to the IPFONE POP; connections between IPFONE’s network and other internet service providers, or (iv) other internet service provider networks. The terms of this schedule to the SLA will take effect the first full calendar month after Customer’s first use of the IPFONE Internet Services.

SLA Parameters

A. Network Availability Guarantee and Remedy

The IPFONE Internet Network shall be available to Customer free of Network Outages for 100% of the time. A “Network Outage” is an instance in which Customer is unable to transmit and receive IP packets due to an IPFONE Network outage for more than thirty (30) consecutive minutes.
Customer shall be eligible for a credit for Network Outages occurring during any calendar month that are reported by Customer to IPFONE (per the procedures set forth in the SLA) and confirmed by IPFONE’s measurements of the IPFONE Network. For calculating credit allowances, every month is considered to have 30 days. A credit allowance is applied on a pro rata basis against the base IP monthly recurring charges (“MRCs”) for the affected service and is dependent upon the length of the Network Out-age measured from the time that IPFONE receives notice from Customer of actual circuit unavailability (established by a Trouble Ticket) until restoration of the affected circuit by IPFONE. Only those facilities on the interrupted portion of the circuit will receive a credit.

B. Latency Guarantee and Remedy

The IPFONE Internet Network Average Round-Trip Latency shall be fifty (50) milliseconds or less. “Average Round-Trip Latency,” with respect to a given month, means the average time required for round-trip packet transfers between POPs on the IPFONE Network during such month, as measured by IPFONE.
If Average l2_ound-Trip Latency on the IPFONE Network for a calendar month exceeds 50 milli-seconds, then upon Customer’s request (in accordance with the procedure set forth in the SLA), IPFONE will issue a credit to Customer equal to one day’s worth of the base IP MRC paid by Customer for such month. In order to qualify for the credit, Customer is responsible for reporting any suspected latency problems to IPFONE within twenty-four hours from the time Customer became aware of the problem through the opening of a Trouble Ticket.

C. Packet Delivery Guarantee

The IPFONE Internet Network Average Packet Delivery shall be 99.9% or greater. “Average Packet Delivery,” with respect to a given month, means the average percentage of IP packets transmitted on the IPFONE Network during such month that are successfully delivered, as measured by IPFONE.
If Average Packet Delivery falls below 99.9% during a calendar month, then upon Customer’s re-quest (in accordance with the procedure set forth in the SLA), IPFONE will issue a credit to Customer equal to one day’s worth of the base IP access fee paid by Customer for such month. In order to qualify for the credit, Customer is responsible for reporting any suspected packet delivery problems to IPFONE within twenty-four hours from the time Customer became aware of the problem through the opening of a Trouble Ticket.

Schedule B to Service Level Agreement
VoIP Services Parameters

Scope

This schedule to the Service Level Agreement (“SLA”) between Customer and IPFONE provides Customers subscribing to the IPFONE Hosted VoIP Service with certain rights and remedies regarding the performance of the IPFONE VoIP Network. The “IPFONE VoIP Network” means the IPFONE owned and operated Voice Over Internet Protocol (VoIP) routing infrastructure consisting of selected IPFONE points of presence (“POPs”) and the connections between them in the United States. The IPFONE VoIP Network does not include (i) customer premise equipment; (ii) any local loop or access facilities connecting Customer’s premises to the IPFONE POP; (iii) connections between IPFONE’s VoIP network and other internet service providers, or (iv) other internet service provider networks. The terms of this schedule to the SLA will take effect the first full calendar month after Customer’s first use of the IPFONE Hosted VoIP Services.

SLA Parameters

A. Network Availability Guarantee and Remedy

The IPFONE VoIP Network shall be available to Customer free of Network Outages for 100% of the time. A “Network Outage” is an instance in which Customer is unable to transmit and receive IP packets due to an IPFONE Network outage for more than thirty (30) consecutive minutes.
Customer shall be eligible for a credit for Network Outages occurring during any calendar month that are reported by Customer to IPFONE (per the procedures set forth in the SLA) and confirmed by IPFONE’s measurements of the IPFONE VoIP Network. For calculating credit allowances, every month is considered to have 30 days. A credit allowance is applied on a pro rata basis against the base IP monthly recurring charges (“MRCs”) for the affected service and is dependent upon the length of the Network Out-age measured from the time that IPFONE receives notice from Customer of actual circuit unavailability (established by a Trouble Ticket) until restoration of the affected circuit by IPFONE. Only those facilities on the interrupted portion of the circuit will receive a credit.

B. Latency Guarantee and Remedy

The IPFONE VoIP Network Average Round-Trip Latency shall be fifty (50) milliseconds or less. “Average Round-Trip Latency,” with respect to a given month, means the average time required for round-trip packet transfers between POPs on the IPFONE VoIP Network during such month, as measured by IPFONE.
If Average Round-Trip Latency on the IPFONE VoIP Network for a calendar month exceeds 50 milliseconds, then upon Customer’s request (in accordance with the procedure set forth in the SLA), IPFONE will issue a credit to Customer equal to one day’s worth of the base IP MRC paid by Customer for such month. In order to qualify for the credit, Customer is responsible for reporting any suspected latency problems to IPFONE within twenty-four hours from the time Customer became aware of the problem through the opening of a Trouble Ticket.

C. Packet Delivery Guarantee

The IPFONE VoIP Network Average Packet Delivery shall be 99.9% or greater. “Average Packet Delivery,” with respect to a given month, means the average percentage of IP packets transmitted on the IPFONE VoIP Network during such month that are successfully delivered, as measured by IPFONE.
If Average Packet Delivery falls below 99.9% during a calendar month, then upon Customer’s re-quest (in accordance with the procedure set forth in the SLA), IPFONE will issue a credit to Customer equal to one day’s worth of the base IP access fee paid by Customer for such month. In order to qualify for the credit, Customer is responsible for reporting any suspected packet delivery problems to IPFONE within twenty-four hours from the time Customer became aware of the problem through the opening of a Trouble Ticket.

INTERNET STANDARD TERMS AND CONDITIONS

In addition to the general terms and conditions contained in the service agreement between IPFONE and Customer (the “Agreement”), of which this Schedule is a part, Customer agrees that the following terms and conditions apply to Internet Access Service provided to Customer by IPFONE:

Provision of Internet Access Service

1.1. IPFONE shall provide, and Customer shall accept and pay for, Internet Access Service (the “Internet Service”) at the rates set forth on the Rate Schedule of the Agreement. Internet Service permits a Customer to obtain direct access to the Internet via IPFONE’s or a third party provider’s IP network. Connectivity is between the Customer’s router and the IPFONE router located within the IPFONE network.

Acceptable Uses

2.1. Customer agrees to adhere at all times to the IPFONE Acceptable Use Policy (the “AUP”), as such AUP may be modified by IPFONE from time to time. The current AUP is available for review at www.ipfone.com. IPFONE has the right to modify its AUP at any time without prior notice to Customer. Customer is responsible for monitoring the website for changes to the AUP. Customer shall be bound by such modified AUP.
2.2. Customer shall be responsible for enforcing the AUP for any third parties (including its customers or end users) that access the Internet through Customer’s use of the IPFONE Internet Services. Customer shall defend and indemnify IPFONE with respect to all claims related to Customer’s or any such third parties’ use of the Internet Service in violation of the then-current AUP.
2.3. IPFONE has the right to immediately and without regard to any cure periods that may be set forth elsewhere in the Agreement, suspend and/or terminate the Internet Services to Customer, or to take any other action that IPFONE determines, in its sole discretion, is appropriate in response to Customer’s, or Customer’s end user’s or any other customers of Customer failure to comply with the requirements of IPFONE’s then-current AUP.
2.4. Customer and its customers and end users are responsible for the security of their own networks and machines. IPFONE assumes no responsibility or liability for failures or breach of protective measures on Customer’s network, whether implied or actual, even in the event that the security measures have been installed or configured by IPFONE. Security problems on Customer’s systems that affect the IPFONE network or cause any system abuse or any other violations of the AUP may result in suspension of the Internet Service or account access by IPFONE. Customer shall solely be responsible for addressing problems on Customer’s network escalated to IPFONE for resolution that involves compromise of Customer’s security.

IP Address Ownership

3.1 As part of the Internet Service, Customer shall be provided with one serial IP address. Customer shall also be provided with such public IP addresses as are deemed justifiable by American Registry for Internet Numbers (“ARIN”). IPFONE shall maintain and control ownership of all IP addresses that may be assigned to Customer by IPFONE and IPFONE reserves, in its sole discretion, the right to change or remove any and all such IP addresses, including without limitation the right to decrease the amount of IP space IPFONE has assigned to Customer. IPFONE will use all commercially reasonable efforts to route Customer-provided IP addresses to the Internet.

Domain Name Service

As part of the Internet Service, IPFONE, at Customer’s request, at no additional charge shall provide Customer with primary domain name service for up to five domain names and secondary domain name service for: (i) any domain names for which IPFONE is the primary domain name service provider and (ii) any domain names for which Customer is the primary domain name service provider. Neither primary nor secondary domain name service includes registration of the Customer’s domain name(s). Customer shall be responsible for registering and maintaining the registration of their domain name(s) with the appropriate domain name registrar and for all costs and fees associated with such requirements. Under no circumstances shall IPFONE be responsible for these costs. IPFONE makes no representations concerning and does not guarantee that Customer’s domain name does not infringe upon any trademarks, trade names, service marks or other proprietary rights owned by a third party and Customer agrees to indemnify and hold IPFONE harmless in the event any domain name violates or is alleged to violate any trademarks, or other proprietary rights of any other party. The inability to obtain or use a domain name shall not entitle Customer to terminate the Agreement with IPFONE or to a refund of any fees paid by Customer for the Internet Service.

Maintenance

5.1. IPFONE periodically performs maintenance on its Internet network. In some cases, a maintenance window may result in a temporary service interruption to IPFONE customers. IPFONE will use all reasonable efforts to provide notification of the network maintenance on the IPFONE website at https://www.ipfone.com/maintenance. Customers have the option to receive notification of a network maintenance window via email by subscribing to a mailing list at the IPFONE website listed in the foregoing sentence. The capability to subscribe to the mailing list is provided for customers who would prefer to receive an email regarding a maintenance window versus checking the IPFONE website. (Customers also have an option to unsubscribe to the mailing list at the IPFONE website.)

A description of the various types of network maintenance classifications is set forth below. Each maintenance description specifies when notification will be provided prior to the start time of the scheduled maintenance. Maintenance notification will include a list of the cities affected, a description of the maintenance, and the duration of the maintenance window. The maintenance window for backbone devices is between midnight and 6:00 a.m., local time zone at the affected sites.

Customer acknowledges that IPFONE shall not be liable for service interruptions that may occur due to maintenance activity as described herein or for failure to provide advance notice of the maintenance on IPFONE’s website or in an email to subscribers to the email maintenance list.

Maintenance Classifications:

Normal Scheduled Maintenance 

Normal Scheduled Maintenance is defined as maintenance that will enhance the reliability of the network. This includes, but is not limited to upgrading code, reloading routers, and adding new equipment. Notification for this type of maintenance will be provided 72 hours prior to the start of a Normal Scheduled Maintenance window.

Urgent Scheduled Maintenance

Urgent Scheduled Maintenance is defined as maintenance that is performed when the potential for router or network failure exists without the scheduled maintenance. This includes, but is not limited to hardware and software upgrades, and router debugging. Notification for this type of maintenance will be provided 48-72 hours prior to the start of an Urgent Scheduled Maintenance window.

Emergency Maintenance

Emergency Maintenance is performed when catastrophic events have occurred on the network. This is limited to maintenance necessary to correct the event that occurred during an unplanned outage. Notification for this type of maintenance will be provided on a best effort basis.