ECO Enterprise Master Service Agreement
ECO ENTERPRISE MASTER SERVICE AGREEMENT
1 Terms.
The terms and conditions in this Master Service Agreement (“MSA” or “Service Agreement”) shall be binding upon any 46 Labs Communications Service Order, namely the 46 Labs Communications Order Form (“SO”), and together with the terms and conditions in each SO, any supplemental terms and conditions, including exhibits and Service Level Agreements, 46 Labs Communications’ Acceptable Use Policy (“AUP”) and Privacy Policy, comprise Customer’s agreement with 46 Labs Communications (the “Agreement”). In the event of an inconsistency between these documents (but only to the extent of the inconsistency), the order of precedence, from the most to the least controlling, shall be:
Any mutually agreed upon SO or amendment or addendum thereto, properly executed by authorized representatives of both 46 Labs Communications and Customer;
Applicable supplemental terms and conditions, including exhibits and Service Level Agreements;
This MSA;
The AUP and Privacy Policy.
THIS MSA, ALL SOs, ANY SUPPLEMENTAL PRODUCT TERMS AND CONDITIONS, AND 46 LABS’ AUP AND PRIVACY POLICY ARE LOCATED ON A WEBSITE ACCESSIBLE AT ALL TIMES BY CUSTOMER AND MAY BE MODIFIED BY 46 LABS AT ANY TIME. FOR CHANGES TO ANY OF THE AFOREMENTIONED COMPONENTS OF THE AGREEMENT, 46 LABS WILL NOTIFY CUSTOMER OF ANY MATERIAL CHANGES IN THE AGREEMENT PRIOR TO THE BILLING PERIOD IN WHICH THE CHANGES WOULD GO INTO EFFECT, EXCEPT FOR RATES, WHICH MAY BE CHANGED ON ONE (1) DAY NOTICE. NOTIFICATION OF ANY SURCHARGE MAY BE IN THE FORM OF A BILL INSERT OR BY A MESSAGE WITHIN CUSTOMER’S INVOICE; BY POSTCARD OR LETTER; BY 46 LABS’ CALLING AND SPEAKING TO CUSTOMER OR LEAVING A MESSAGE FOR CUSTOMER; BY POSTINGS ON 46 LABS’ WEBSITE AT WWW.46LABS.COM; OR BY EMAIL. CUSTOMER SHALL BE BOUND BY CHANGES IMMEDIATELY AFTER THEY BECOME EFFECTIVE. CUSTOMER ACCEPTS THE INCORPORATION INTO THE AGREEMENT OF SUPPLEMENTAL PRODUCT TERMS AND CONDITIONS, THE TERMS AND CONDITIONS IN THIS MSA, AUP AND PRIVACY POLICY, AND ALL MODIFICATIONS MADE THERETO.
2 Provision of Services.
2.1 Regulation: The rates set forth in the Agreement are subject to the imposition of new regulations, modifications of existing regulations, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/ or local regulatory agency, legislative body, or a court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance on or as a result of the same (“Regulatory Change”). 46 Labs Communications reserves the right, at any time (including retroactively) to (i) to pass through to Customer all charges, surcharges or taxes directly or indirectly related to such Regulatory Change, and/or (ii) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change.
2.3 Availability of Facilities: 46 Labs Communications’ Telecommunications Service (“Service”) is offered and furnished subject to the availability, in 46 Labs Communications’ sole judgment, of all necessary facilities, including those acquired or leased by 46 Labs Communications from other entities.
2.4 Reseller: 46 Labs Communications is acting as a reseller/ network provider of certain services, facilities and equipment provided by third parties. 46 Labs Communications may be unable to initiate service due to facilities or other constraints of third parties. Further, 46 Labs Communications cannot guarantee any requested turn up/ start of service date, or ensure that 46 Labs Communications or its underlying network/ facilities providers can achieve any projected turn up/start of service date. Any statement or representation to the contrary shall be deemed null and void.
2.5 Right to Alter Service: In its sole discretion and without liability to Customer, 46 Labs Communications may:
(a) alter the methods, processes or suppliers by or through which it provides Service;
(b) change the facilities used to provide Service;
(c) substitute comparable Service for that being provided to Customer. If necessary due to the potential impact on affected Customers, 46 Labs Communications will furnish prior notice of any alterations, changes or substitutions.
2.6 46 Labs Communications’ Right to Block, Discontinue, or Surcharge Service Without Notice to Customer:
2.6.1 Fraud, Network Blockage or Degradation: 46 Labs Communications may discontinue furnishing Service by blocking traffic to or from certain countries, cities, NXX exchanges, or individual telephones; by blocking call origination; or by blocking calls using certain Customer authorization or access codes; and/ or cancel Customer’s account immediately and without notice, without 46 Labs Communications incurring any liability whatsoever, if 46 Labs Communications deems that such action is necessary to prevent or protect against fraud, or to otherwise protect 46 Labs Communications’ personnel, agents, facilities or services, for reasons which include but are not limited to:
(a) violation of 46 Labs Communications’ AUP;
(b) use or misuse of the Service in a manner that results, or could result, in network blockage or other degradations that adversely affect the Service furnished to Customer or to other existing or prospective customers of 46 Labs Communications;
(c) manipulation, change, or in any way modifying traffic line records, including the Calling Party Number (“CPN”) or Automatic Number Identification (“ANI”);
(e) sequential dialing;
(f) call blasting;
(g) excessive incomplete calls;
(h) improperly formatted SIP messages;
(i) uses, or threatens to use any of the Services for any unlawful or fraudulent purpose or otherwise violates the terms of the Agreement;
(j) if 46 Labs Communications is ordered or requested to terminate service by a governmental entity. Regardless of whether or not 46 Labs Communications blocks service, the Customer shall still be fully liable for all fraudulent calls made on Customer’s Service.
2.6.2 For Financial Cause: 46 Labs Communications may immediately and at any time terminate the Agreement, discontinue service, cancel an application for service, cancel the Customer’s account, or require Customer to deposit funds as security, without incurring any liability, for any of the following reasons:
(a) Customer fails to pay any amount owed to 46 Labs Communications when due;
(b) Customer’s failure to comply with any material term or condition of this Agreement;
(c) For usage by Customer beyond any credit limit or prepaid balance limit imposed by 46 Labs Communications;
(d) If, in 46 Labs Communications’ sole judgment, any aspect of Customer’s payment arrangements with 46 Labs Communications appear to be fraudulent, including false or misleading credit information, or Customer’s use of a credit card that has been reported as misused or stolen;
(e) Customer’s ability to pay, or if, in 46 Labs Communications’ sole judgment, Customer’s payment arrangements with 46 Labs Communications appear to be inadequate to meet any of Customer’s obligations to 46 Labs Communications coming due;
(f) Customer’s filing of any voluntary or involuntary Petition in the bankruptcy court which names Customer as the debtor;
(g) Customer communicates any intent to breach, or to not comply with the terms of this Agreement, including but not limited to payment for Services at then-prevailing rates.
2.6.3 Customer Obligation to Pay Through Disconnection Period: Customer shall be responsible for payment of all non-usage based charges through any disconnection period.
2.6.4 Fair Use Policy for Unlimited Calling: 46 Labs Communications' fair use policy ("Fair Use Policy") is to prevent abuse, fraud or unreasonable exploitation of unlimited local and long distance calling ("Unlimited Calling") and unreasonable overutilization of 46 Labs Communications' facilities. 46 Labs Communications' Unlimited Calling, both long distance and local, offered in conjunction with 46 Labs Communications' local service products, is intended solely for normal commercial use. 46 Labs Communications' Unlimited Calling for its local service products is designed only for continuous live dialog between two individuals. Unusual calling patterns, excessive called numbers and/or consistent excessive usage will each be considered an indicator that usage is exceeding normal standards. 46 Labs Communications' Unlimited Calling for its local service products may not be used for auto-dialing, continuous, or extensive call forwarding, excessive conferencing, inbound/ outbound centralized or distributed call center activity, inbound/outbound customer service, telemarketing (including charitable or political solicitation or polling), fax or voicemail blasting, or for continuous or extensive chat line access, or as an open telephone line as a monitor, intercom or transcription service. 46 Labs Communications has other plans applicable for such applications and businesses.
It will be considered outside of 46 Labs Communications' Fair Use Policy for Unlimited Calling on a 46 Labs Communications local service product for a Customer to exceed more than one-thousand (1,000) inbound, outbound or toll free local or long distance minutes per month per subscriber line, SIP trunk, hosted seat, PRI/T-1 trunk/DS0 or analog line, etc., in aggregate ("Normal Usage"). For example, for a Customer who contracts for 50 hosted seats, if the Customer's total monthly local/long distance inbound minutes or local/long distance outbound minutes (as applicable) exceeds 50,000 minutes / per month (1,000 minutes/ hosted seat x 50 seats), then such usage exceeds the Fair Use Policy. For Unlimited Calling on a 46 Labs Communications local service product, 46 Labs Communications shall apply a surcharge of up to $0.04 per minute of use to the number of minutes by which Customer's usage exceeds this normal usage. The minutes for call forwarded and remote call forwarded calls are allocated to the Customer's inbound and outbound minutes for each call that i) comes into a 46 Labs Communications- supplied DID and ii) is then rerouted outbound to a telephone number outside of 46 Labs Communications' network.
2.7 Service Reconnection Delay: If service is suspended and/or disconnected and then resolution of the issue occurs, the process of reconnection of the service may take up to sixty (60) business days.
2.8 Delivery of Circuit: Unless specifically stated otherwise in a 46 Labs Communications order form, all loop installs are quoted with delivery to the Local Exchange Carrier ("LEC") building Minimum Point of Entry ("MPOE"). Customer is liable for any loop extension ("Demarc Extension") from the LEC MPOE. Customer is responsible for ensuring that all Demarc Extensions are completed, ordered and approved by the LEC prior to any local loops being dropped by the LEC at Customer's MPOE. In the event Customer fails to complete the Demarc Extension or order appropriate Demarc Extensions prior to the LEC's local loop drop, Customer shall be fully responsible for all associated costs as of the date of local loop drop. For Ethernet services, the Customer is responsible for ensuring there are adequate facilities at the premises' primary MPOE to receive 46 Labs Communications' service, including power and backboard / rack. The Customer will also be responsible for providing any wiring extension beyond the primary MPOE. Customer will be responsible for any additional unforeseen construction costs including, without limitation, inside wiring administration and special installation costs.
46 Labs Communications' Ethernet Service Installation Guide, which can be found at www.46labs.com, identifies the Customer requirements necessary for delivery of Ethernet services to Customer premises. Cancellation charges as set forth in the SO shall be applied in the event Customer has not complied with the requirements in the Ethernet Service Installation Guide, or excessively delays installation. 46 Labs Communications will pass through any costs 46 Labs Communications incurs that are associated with extending wiring beyond the premises' primary MPOE. In the event the Customer chooses not to make the necessary upgrades, the Customer shall nevertheless be responsible for all associated cancellation charges. Where applicable, 46 Labs Communications will deliver Circuit Facilities Assignment ("CFA") at the underlying carrier designated building and suite/cage. It is the Customer's express responsibility to order and pay for all in building local loop circuits or cross-connects required to connect Customer's facilities to the underlying carrier assigned CFA.
2.9 Expedited Installation: Customer acknowledges that requests and payments for an expedited installation do not guarantee that the underlying provider and/or local exchange carrier will meet a requested installation date. Requests for expedited installation may expedite the process by which Customer's order is serviced by the underlying carrier and/or local exchange carrier, but 46 Labs Communications cannot guarantee that any installation will occur by a specified date. 46 Labs Communications cannot refund any payment made for expedited service in the event that an expedited service date is not met.
2.10 Service Availability: The Service is available throughout the Term, except in the case of scheduled maintenance of the 46 Labs Communications network and/or its underlying carrier's networks. 46 Labs Communications will use commercially reasonable efforts to provide prior notification via electronic mail ("email") to Customer regarding any scheduled maintenance of the Service. 46 Labs Communications may interrupt its provision of Service for unscheduled emergency maintenance without notice to Customer or Customer's customers. 46 Labs Communications reserves the right to monitor and/or record certain calls for the purpose of quality control or trouble-shooting service issues, subject to state and federal privacy laws.
2.11 Valid ANI: Where Customer's equipment allows for manipulation or changing of the outpulsed Automatic Number Identification ("ANI") or calling party number ("CPN"), Customer is required to pass a valid originating ANI or CPN that is owned by the Customer. For purposes of this paragraph, "valid" ANI or CPN shall mean ANI or CPN in an industry standard format that correctly identifies the call as originating from the geographic area where the Customer is physically situated.
2.12 900, 500, 700, or Invalid Numbers: Customer shall not pass 900, 500, 700, or invalid numbers (including 000-000-0000 as CPN).
2.13 Local Number Portability: 46 Labs Communications utilizes the Local Number Portability database maintained on behalf of the telecommunications industry by the Number Portability Administration Center ("NPAC") for validation purposes. As a result, the number dialed by Customer may return porting information from the NPAC database which results in calls terminating to different physical locations, and/ or Operating Company Numbers ("OCN") and Local Access Transport Areas ("LATA") that may differ from the dialed number. been ported prior to dialing must arrange independent access to the NPAC database. (If (1) the Customer's rate plan does not include flat-rate pricing, or (2) for the purpose of calculating high cost area surcharges on flat-rate plans, calls terminating to ported telephone numbers will be rated based on the ported number information, and not the dialed number. 46 Labs Communications does not provide Customer access to the NPAC database. Customers wishing to determine whether a dialed number has been ported prior to dialing must arrange independent access to the NPAC database.
2.14 OCN Information: OCN Information: All calls billed under plans other than flat-rate plans will utilize OCN information provided by Bellcore or similar database providers. OCN's are determined by criteria including the NPA/NXX of the number dialed, as well as the NPAC database. 46 Labs Communications shall not be liable for the accuracy of any OCN information, which may be utilized by Customer for any purpose, including but not limited to rating, scrubbing or sorting.
2.15 Toll Free Directory Assistance: UponCustomer'swrittenrequestandtotheextent available to 46 Labs Communications, Toll- Free Directory Assistance listing is available for Customer's Toll-Free numbers provided by 46 Labs Communications. Due to the fact that Toll-Free Directory Assistance is provided through an arrangement with a third party, the provision of Toll-Free Directory Assistance by 46 Labs Communications is subject to the policies and procedures promulgated from time to time by such third parties. Customer understands that any Toll-Free Number listed with Toll-Free DirectoryAssistanceisnotpublishedinanywritten directory but is only available on either an online or call-in basis. This service will be charged at such third party provider's then prevailing rates, which are subject to change without notice at any time.
2.16 International Routes: Customer is aware and acknowledges that 46 Labs Communications has no control over the international routes of its underlying providers. Therefore, 46 Labs Communications cannot assure or guarantee calls/voice quality for all international traffic. Customer agrees that all calls completed will be considered valid and billable, regardless of call quality.
2.17 Blocking of International Calls: If Customer wishes to block International calls, the Customer must ensure that such request is in writing, in the body of the SO for the services for which International blocking is to be applied. Any such blocking request that is not in writing will not be valid. For the purpose of call blocking, "International" refers only to those calls not destined to the United States or Canada. It is the Customer's responsibility to understand the limits on any call blocking functionality. Any request to 46 Labs Communications to unblock international calls must be in writing.
2.18 Internet Services: All Internet services provisioned under this Agreement or any 46 Labs Communications SO are provided as information services, and not as telecommunication services for the purposes of regulation.
2.19 Rights to IP Addresses and Circuits: Upon termination of the Agreement or any SO, or cancellation of any Service, all rights to circuits ordered by Customer will revert to 46 Labs Communications, and Customer shall have no rights to the continued use of such circuits even if 46 Labs Communications ordered such circuits through another provider. Similarly, 46 Labs Communications does not represent that IP Addresses used by Customer in conjunction with the Service will be available to Customer after termination or cancellation. Customer agrees that
2.20 911 Services: Customer must have at least one 911-enabled DID for each location, with that location's correct address populated in 46 Labs Communications' 911 database, for 911 database services to operate properly for DIDs utilized at that location. For 911 service, the Customer will be required to register the physical location of Customer's equipment (desk phone, softphone, video phone or mobile phone) with 46 Labs Communications and agree to call 46 Labs Communications customer service to update the location whenever the physical location of service for a particular telephone number changes. Customer may register only one location at a time.
IF CUSTOMER DOES NOT UPDATE THE PHYSICAL LOCATION OF CUSTOMER'S EQUIPMENT (DESK PHONE, SOFTPHONE, VIDEOPHONE OR MOBILE PHONE) WHEN IT CHANGES, CUSTOMER'S 911 CALLS MAY BE SENT TO AN INCORRECT EMERGENCY CENTER.