1. Tariffs/Service Guide If customer is purchasing any services that are regulated by the FCC or any state regulatory body (“Regulated Services”), then customer’s use of such regulated services is subject to the regulations of the FCC and the regulatory body of the state in which the customer location receiving these Regulated Services is located (which regulations are subject to change), as well as the rates, terms, and conditions contained in tariffs on file with state and federal regulatory authorities. For states where the Regulated Services are de-tariffed, Regulated Services are provided pursuant to the rates, terms and conditions for the ULTATEL Service Guide for that State (the “SG”), which may be found at https://www.ultatel.com/terms and which such terms are incorporated herein by reference. ULTATEL may amend such tariffs (and if applicable, the SG) and the Regulated Services shall be subject to such tariffs (or if applicable, the SG), as amended. Customer must disclose to ULTATEL if Customer intends to use the Regulated Services with payphone service. The tariffs and the SG contain cancellation or termination fees due in the event of cancellation or termination (including partial termination) of a Regulated Service prior to the Term selected on the Cover Page. Termination fees included, but are not limited to, nonrecurring charges, charges paid to third parties on behalf of Customer, and the monthly recurring charges for the balance of the Term. The customer has been advised of and agrees to abide by the terms of the Acceptable Use Policy located at https://www.ultatel.com/legal/aup/.
2. E911 Services please review the following website for more important information about ULTATEL’s 911 PRACTICES: https://www.ultatel.com/legal/e911/, in addition CUSTOMER IS RESPONSIBLE FOR BATTERY BACKUP FOR THE IAD, IP PHONES, ATA AND ALL CUSTOMER EQUIPMENT. IN THE EVENT OF A POWER OUTAGE, CUSTOMER’S TELEPHONE SERVICE USING AN IAD, ATA, and IP PHONES WILL DEPEND ON CUSTOMER’S BATTERY BACKUP CHOICE. IF THE EMTA, ATA, IP PHONES OR IAD THAT SUPPLIES YOUR TELEPHONE SERVICE IS DISCONNECTED OR REMOVED AND/OR THE BATTERY IS NOT CHARGED OR IS DAMAGED, SERVICE, INCLUDING ACCESS TO 911 OR E911, WILL NOT BE AVAILABLE. ULTATEL SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE TO RECEIVE SERVICE OR FOR THE FAILURE OF ANY 911 OR E911 CALL IF CUSTOMER REMOVES OR DISCONNECTS THE ATA, IP PHONES OR IAD OR IF CUSTOMER FAILS TO CHARGE THE BATTERY FOR SAID DEVICES AT ANY TIME DURING THE TERM OF THIS AGREEMENT. ULTATEL USES YOUR TELEPHONE SERVICE ADDRESS TO IDENTIFY YOUR LOCATION FOR E911 SERVICE. IF THE ATA, IP PHONES AND/OR IAD INSTALLED IN YOUR BUSINESS IS MOVED, THE E911 DISPATCH MAY NOT RECEIVE YOUR CORRECT ADDRESS. PLEASE NOTIFY ULTATEL IF YOU WOULD LIKE TO MOVE OR RELOCATE YOUR TELEPHONE SERVICE. IT CAN TAKE UP TO 2 BUSINESS DAYS FOR YOUR NEW ADDRESS TO BE UPDATED.
3. Service Start Date and Term This agreement shall be effective upon execution by the parties. The “Initial Term” shall begin upon installation of Service and shall continue for 12 months or as the applicable Term commitment set forth on the Cover Page; provided that if Customer delays installation or is not ready to receive Services on the agreed-upon installation date, ULTATEL may begin billing for Services on the date Services would have been installed. ULTATEL shall use reasonable efforts to make the Services available by the requested service date. ULTATEL shall not be liable for damages resulting from delays in meeting service dates due to construction delays or reasons beyond its control. If Customer delays installation for a period of three (3) months or longer after the parties’ execution of this agreement, ULTATEL reserves the right to terminate this agreement immediately at any time thereafter and Customer shall be responsible for the full amount of construction costs and any other related costs incurred by ULTATEL as of the date of termination. AFTER THE INITIAL TERM, THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR THE SAME INITIAL TERMS (EACH AN “EXTENDED TERM”) UNLESS A PARTY GIVES THE OTHER PARTY WRITTEN TERMINATION NOTICE AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR THEN CURRENT EXTENDED TERM. “Term” shall mean the Initial Term and Extended Term (s), if any. ULTATEL reserves the right to increase rates for all Services by no more than ten percent (10%) during any Extended Term by providing Customer with at least sixty (60) days written notice of such rate increase. This limitation on rate increases shall not apply to Services for which rates, terms and conditions are governed by a ULTATEL tariff or SG. Upon notice to Customer, ULTATEL may change the rates for Services periodically during the Term. ULTATEL may change the rates for telephone Service subject to a ULTATEL tariff or SG periodically during the Term. For the avoidance of doubt, promotional rates and promotional discounts provided to Customer will expire at the end of the Initial Term or earlier as set forth in the promotion language.
4. Termination Customer may terminate any Service before the end of the Term selected by Customer on the Cover Page; provided, however, if Customer terminates any such Service before the end of the Term (except for breach by ULTATEL, unless otherwise expressly stated in the General Terms, Customer will be obligated to pay a termination fee equal to the nonrecurring charges (if unpaid) and 100% of the monthly recurring charges for the terminated Service(s) multiplied by the number of full months remaining in the Term. This provision survives termination of the Agreement. If ULTATEL is delivering Services via wireless network facilities and there is signal interference with any such Service(s), ULTATEL may terminate this Agreement without liability if ULTATEL cannot resolve the interference by using commercially reasonable efforts.
5. Payment Customer shall pay for all monthly Service charges, plus one-time set-up, installation and/or construction charges. Unless stated otherwise herein, monthly charges for Services shall begin upon installation of Service, and installation charges, if any, shall be due upon completion of installation. Any amount not received by the due date shown on the applicable invoice will be subject to interest or a late charge no greater than the maximum rate allowed by law. Customer acknowledges and agrees that if Customer fails to pay any amounts when due and fails to cure such non-payment upon receipt of written notice of non-payment from ULTATEL, Customer will be deemed to have terminated this Agreement and will be obligated to pay the termination fee described in Section 4, above. If applicable to the Service, Customer shall pay sales, use, gross receipts, and excise taxes, access fees and all other fees, universal service fund assessments, 911 fees, franchise fees, bypass or other local, state and Federal taxes or charges, and deposits, imposed on the use of the Services. Taxes will be separately stated on Customer’s invoice. No interest will be paid on deposits unless required by law.
6. Service and Installation ULTATEL shall provide Customer with the Services identified on the Cover Page and may provide related facilities and equipment, the ownership of which shall be retained by ULTATEL (the “ULTATEL Equipment”), or for certain Services, Customer, may purchase equipment from ULTATEL (“Customer Purchased Equipment”). Customer is responsible for damage to any facilities or equipment installed or provided by ULTATEL (the “ULTATEL Equipment”). Customer may use the Services for any lawful purpose, provided that such purpose (a) does not interfere or impair the ULTATEL network or ULTATEL Equipment and (b) complies with the AUP. Customer shall use the ULTATEL Equipment only for the purpose of receiving the Services. Customer shall use Customer Purchased Equipment in accordance with the terms of the related equipment purchase agreement. Unless provided otherwise herein, ULTATEL shall use commercially reasonable efforts to maintain the Services in accordance with applicable performance standards.
7. General Terms General Terms are hereby incorporated into this Agreement by reference. ULTATEL, in its sole discretion, may modify, supplement or remove any of the General Terms from time to time, without additional notice to Customer, and any such changes will be effective upon ULTATEL publishing such changes on the website listed above. BY EXECUTING THIS AGREEMENT AND/OR USING OR PAYING FOR THE SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THE GENERAL TERMS.
8. LIMITATION OF LIABILITY ULTATEL AND/OR ITS AGENTS SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH OR INTERRUPTION OF ANY SERVICES, NOR SHALL ULTATEL OR ITS AGENTS BE RESPONSIBLE FOR FAILURE OR ERRORS CAUSED BY THE SERVICE. ULTATEL SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION OR REMOVAL OF EQUIPMENT UNLESS CAUSED BY THE NEGLIGENCE OF ULTATEL. UNDER NO CIRCUMSTANCES WILL ULTATEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING FROM THIS AGREEMENT OR ITS PROVISION OF THE SERVICES.
9. WARRANTIES EXCEPT AS PROVIDED HEREIN, THERE ARE NO OTHER AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES. SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND ULTATEL DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION. INTERNET SPEEDS AT THE CUSTOMER LOCATION MAY VARY AND HENCE AFFECTS THE PERFORMANCE OF ULTATEL SERVICE. INTERNET SERVICE AT CUSTOMER LOCATION IS A RESPONSIBILITY OF THE CUSTOMER IN WHICH CUSTOMERS NEEDS TO MAKE SURE IT’S WORKING IN ORDER FOR ULTATEL SERVICE TO WORK PROPERLY.