THIS AGREEMENT (the “Agreement”) is made and entered into this day of , 2016, (“Effective Date”) by and between Voyant Communications, LLC (hereinafter referred to as “Voyant”), and Account Legal Entity Name (hereinafter referred to as “Customer”). Customer and Voyant are individually referred to as “Party” and collectively referred to herein as “Parties.” Any Service Addendum (“Addendum”) and/or other Exhibits attached hereto are incorporated by reference and detail the price, location, and other information about the service(s) to be provided by Voyant.
This Voyant Master Services Agreement replaces and supersedes any previous Voyant Master Services Agreement.
1. Term. The Term of this Master Services Agreement (MSA) shall commence on the Effective Date and continue for as long as any applicable Service Addendum, Order or other Exhibit associated herewith remains in effect or as long as Voyant continues to provide the Customer with any Service hereunder, whichever is longest. With regard to any Addendum executed under this MSA, the term reflected on the Addendum shall constitute the Minimum Service Term of those services. Upon the expiration of the Minimum Service Term for each Service, each Service’s Term shall automatically renew for successive one year terms unless and until either party provides written notice to the other party at least ninety (90) days prior to the expiration of the then current term of their intent not to renew services. This Agreement and/or any Addendum(s) may be terminated pursuant to the provisions of Paragraph 11 “Default” below or as may be additionally defined in any individual Addendum(s). Please reference individual Addendum(s) as Termination fees apply in the event of Termination during a Minimum Service Term.
2. Service Descriptions. Exhibits contain service descriptions as well as service specific terms and conditions.
a. Transport Service – (See Exhibit A)
b. IP Data Service – (See Exhibit B)
c. IP Voice Service – (See Exhibit C)
d. Collocation Service – (See Exhibit D)
e. Primary Rate Interface Service – (See Exhibit E)
f. Purchased Equipment – (See Exhibit F)
3. Service Availability. Voyant’s ability to provide Customer with services depends upon several unknown factors, including, but not limited to, the quality of the existing wiring at and to the Customer’s site and any and all Customer premise equipment. In an effort to evaluate service availability, Voyant may conduct a customer site survey. Notwithstanding anything to the contrary in this Agreement, Voyant shall be allowed to cancel this Agreement without liability to Customer if Voyant determines, in Voyant’s sole discretion, that the service cannot be provided to Customer in an economically viable and commercially reasonable manner, with sufficient quality or speed, or as a result of any other factors discovered, including those factors learned through the customer site survey.
4. Construction. Following a site survey, Voyant may determine that construction of additional network infrastructure would be required to provide the Service(s) to the Service Location(s). If applicable, an estimate of the non-recurring charge associated with such construction is detailed on the associated Service Addendum. In the event Customer terminates this agreement for convenience at any time after commencement of such construction, but prior to the Start of Service Date, Customer shall indemnify Voyant for any and all actual costs incurred by Voyant associated with such construction at the time of termination.
5. Customer’s Obligations.
a. Customer acknowledges and agrees that Customer may be required to provide certain equipment at Customer’s premises (the “CPE”) for services depending on Customer’s selected configuration(s). The CPE must comply with Voyant’s interface requirements. In the event that the CPE or any equipment or software not provided by Voyant impairs Customer’s use of any Services, Customer shall nonetheless be liable for payment for all Services provided by Voyant. Voyant shall not be responsible for the operation or maintenance of Customer owned and operated CPE.
b. Customer shall be required to provide any and all electrical power and any necessary secondary/back-up power, a suitable cable access route, environment, and space for equipment.
6. Equipment and Installation
a. Voyant, or its agent, shall provide, install, maintain, repair, operate and control Voyant’s equipment. Unless specifically provided for herein, or in any service request, Voyant shall pay the cost of purchase and installing any Voyant equipment.
b. Voyant’s equipment shall be used exclusively for providing the Services pursuant to the Agreement, unless otherwise expressly provided.
c. Voyant’s equipment shall remain the sole and exclusive property of Voyant and nothing contained herein shall give or convey to Customer, or any third party, any right, title, or interest whatsoever in Voyant’s equipment. Voyant’s equipment shall remain personal property, notwithstanding that it may be, or become, attached to, or embedded into real property. Customer shall not tamper with, nor remove, any identification markings or labels attached to Voyant equipment identifying Voyant’s ownership interest in the equipment.
d. Equipment and service beyond the point of demarcation (“demarc”) and/or interconnection between Voyant’s facilities and terminal equipment and the wiring at the demarc shall be the sole responsibility of Customer unless otherwise expressly provided herein.
e. If Customer provides its own equipment, Voyant shall have no obligation to install, maintain, or repair the equipment. If, on responding to a Customer-initiated service call, Voyant and Customer jointly determine that the cause of the service deficiency was in any way caused by equipment other than Voyant’s equipment, Customer shall compensate Voyant for actual time and materials expended during the service call.
f. Neither party shall adjust, align, attempt to repair, relocate, or remove the other party’s equipment, except as expressly authorized in writing by the other party.
g. Customer shall be liable for any loss of or damage to Voyant’s equipment caused by Customer’s acts. Customer agrees to reimburse Voyant for the reasonable cost of repair of Voyant’s equipment, or the replacement thereof, within thirty (30) days after receipt by Customer of a written request for reimbursement. Upon termination/expiration of any Service including Voyant owned equipment, or when Customer replaces/upgrades Service including Voyant owned equipment, Customer must return terminated or replaced/upgraded CPE to Voyant at Customer’s own expense within 15 business days of termination or replacement/upgrade. Voyant will provide Customer with return instructions. Customer must deliver CPE to Voyant in the same condition as it was when first delivered to Customer, normal wear and tear excepted. If CPE is not returned as such, or not returned, Customer will be responsible for Voyant’s out of pocket costs for replacing the unreturned CPE.
h. Voyant shall be liable for any loss of, or damage to, Customer’s equipment cause by Voyant’s negligence, intentional acts, willful misconduct, or unauthorized maintenance. Voyant shall reimburse Customer for the reasonable cost of repair of the equipment, or the replacement thereof, within thirty (30) days after receipt by Voyant of a written request for reimbursement.
7. IP Address Allocation Policy. Voyant assigns IP addresses to its customers for use with certain IP/data based Services. Voyant shall retain any assigned public IP address when a customer’s service is terminated. Voyant and Customer agree that assigned addresses are “non-portable” and other providers are not allowed to route these addresses unless the Customer is peering with other Internet Service Provider(s) in addition to Voyant. Any Customer IP addresses which are allocated directly from American Registry for Internet Numbers (ARIN) will be ported/routed by Voyant where reasonably possible. However, Voyant cannot guarantee the portability/routability of these addresses beyond its own backbone and to the Internet in general. Voyant reserves the right to modify its IP Address Allocation Policy without notice.
a. Customer shall pay all invoices within thirty (30) days of the invoice date. Any invoice not timely paid in full shall be assessed a late fee in the amount 1.5% of the unpaid balance per month or the maximum lawful rate. For past due amounts, Voyant may, after giving Customer five (5) days prior written notice, suspend all Services until Customer has paid its balance in full.
b. Written requests for billing adjustments together with all supporting documentation must be received by Voyant within forty-five (45) days from the date of the invoice or the right to billing adjustment shall be waived.
c. Any applicable sales, use, commercial or other similar taxes or license fees invoiced to Customer with respect to Services provided by Voyant, shall also be payable by Customer in addition to the other charges set forth in this Agreement or any Addendum.
d. In order to provide Services to Customer, Voyant may, at its sole discretion, require a security deposit prior to the Start of Service Date. Any amount(s) shall be later applied to the account balance upon disconnect of Services.
9. Governmental Authority. The obligation of Voyant to provide the Services to Customer is subject to required regulatory authorizations or other underlying rights. In the event Voyant does not have or loses any required regulatory authorizations or other underlying rights to perform hereunder, this Agreement shall automatically terminate. This Agreement may be superseded by a tariff filed with any appropriate regulatory agency, which tariff may contain such modifications of the provisions of this Agreement as Voyant deems appropriate. In the event that such a tariff materially affects Customer’s rights or obligations hereunder, Customer may terminate the specific Services so affected without penalty.
10. Assignment. Customer may not assign this Agreement or any Addendum(s) attached hereto, in whole or in part, or assign any rights or obligations without the prior express written consent of Voyant. Any attempted transfer by Customer in violation of this Agreement shall operate as an Event of Default. Voyant may transfer, assign, or otherwise in any manner encumber this Agreement and its rights and obligations hereunder.
11. Default. Either Party may terminate this Agreement or any Addendum(s) in the event the other Party fails to perform any substantial obligation on its part, and does not cure such default within thirty (30) days of receipt of written notice from the non-defaulting Party. If the defaulting Party fails to cure the default within such time, then the non-defaulting Party may immediately terminate this Agreement including any and all Service Addendum(s) and/or other Exhibits attached hereto, and immediately suspend any and all performance without penalty or further obligation upon written notice to the other Party.
12. Limitation of Liability.
a. The entire liability of Voyant of whatever nature arising out of the provision of any service hereunder shall not exceed an amount equal to the proportionate fixed monthly charges to customer for the period of service during which any mistake, omission, interruption, delay, error, or defect in the service or equipment, or any other event or action giving rise to a claim occurs.
b. In no event shall either Party be liable to the other for indirect, special, punitive, consequential, or incidental damages, including but not limited to, the loss of profits, revenues or data or inaccurate data, even if advised of the foreseeability of such damages.
c. Voyant disclaims any express or implied warranties with respect to service or equipment, including without limitation, any implied warranties of merchantability and/or fitness for a particular purpose.
13. Indemnification. Each Party shall indemnify, defend and hold harmless the other Party, its directors, officers, employees, and agents, successors, and assigns, from all damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, sustained in any action commenced by any third party in connection with the indemnifying party’s performance of its obligations and duties under this Agreement except for those damages, costs, expenses, and liabilities arising from the negligence or willful misconduct of the other party. The indemnified party shall promptly notify the other party in writing of any such suit or claim.
14. Confidentiality. During the Term, Customer shall not disclose to any third party the terms and conditions of this Agreement without the prior written consent of Voyant. Such terms and conditions as well as any information related to the Services provided hereunder shall be considered Confidential Information. Customer agrees to take reasonable steps to prevent the disclosure of Confidential Information to any third party. Such confidentiality obligations shall survive the termination or expiration of this Agreement and shall continue for a period of two (2) years thereafter.
15. Modification. Voyant reserves the right to add or delete service offerings during the term hereof and to modify any Addendum if Voyant provides written notice at least thirty (30) days prior to the modification. In the event of such modification, Customer may terminate such services affected by the modification, without further liability for those services, by giving written notice at the time of modification. With the exception of the foregoing, this Agreement and any Addendum(s) or Exhibits may be amended or modified only in writing by mutual assent of the Parties.
16. Legal Compliance. In conjunction with this Agreement, each party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body.
17. Choice of Law. This Agreement shall be governed by the laws of the State of Minnesota. The Parties hereby consent to the exclusive jurisdiction of the state courts of Minnesota with respect to any dispute arising from this Agreement.
18. Notices. All notices shall be in writing and shall be delivered by certified mail return receipt requested or any other delivery system which is capable of providing proof of delivery, including facsimile copy or electronic mail, provided receipt is confirmed. Any such notice shall be deemed effective on the day of actual delivery. All notices shall be addressed to Voyant or Customer as set forth herein. All notices to Voyant shall be addressed to:
If to Voyant:
Voyant Communications, LLC
Attn: General Counsel
2300 Berkshire Lane North, Suite 4
Plymouth, MN 55441
The addresses set forth may be changed by appropriate notice to the other party.
19. Entire Agreement. This Agreement and any Addendum(s) or Exhibits attached hereto comprise the complete and exclusive statement of the agreement of the parties concerning the subject matter hereof, and supersede all previous statements, representations, and agreements concerning the subject matter hereof.
20. Severability. If any part of this Agreement shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of this Agreement, and the Customer and Voyant agrees to negotiate with respect to any such invalid or unenforceable part to the extent necessary to render such part valid and enforceable.
21. Force Majeure. Notwithstanding anything herein to the contrary, Voyant shall not be liable to Customer or any other party for any failure of performance if such failure is due to any cause or causes beyond the reasonable control of Voyant including, but not limited to, fire, explosion, vandalism, cable cut, storm or other similar occurrences, any governmental action or any national emergencies, insurrections, riots, wars, strikes or other labor difficulties, supplier failures, or shortages.
22. No Warranties. The Services provided under this Agreement and any Addendum(s) hereunder are provided on an “as-is” basis, without warranty of any kind, express or implied. Voyant hereby disclaims any and all warranties of any kind including, but not limited to, warranties of merchantability and fitness for a particular purpose, and any others arising by statute or otherwise in law from course of dealing, usage of trade or otherwise.
23. Subject to Laws. This Agreement is subject to all applicable federal, state, and local laws, and regulations, rulings, and orders of governmental agencies, including but not limited to, the Communications Act of 1934, as amended, the Telecommunications Act of 1996, the Rules and Regulations of the Federal Communications Commission, Voyant’s applicable tariffs, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body
Exhibit A – Transport Services
1. Service Description(s)
a. Ethernet Service – Provides unprotected optical wide area network (WAN) transport delivered end-to-end over Voyant owned and/or operated infrastructure. Ethernet Service is provided via industry standard 10/100 Fast Ethernet or Gigabit Ethernet User Network Interface (“UNI”) at Customer selected sub-rate bandwidths from 5 to 1000 Mbps in one of the following Customer-selected configurations:
i. E-Line – Dedicated point to point connection between two (2) customer locations over a layer 2 optical Ethernet platform. Transport capacity (UNI) must be the same (like to like) for originating and terminating locations.
ii. E-LAN – Dedicated multipoint connection between three (3) or more customer locations over a layer 2 optical Ethernet platform. Standard configuration allows transmission of untagged or VLAN tagged frames.
iii. Ethernet Access – Dedicated point to point connection between a single customer location and either 1) the Internet or other Voyant provided application service.
iv. Private Data Network Service – a secure, private data communications service enabled at Customer premise locations through a common network. Private Data Network includes: local access, transport through the Voyant network, and an optional Voyant owned and managed router at each Customer site, and management and support services as needed to support Customer selected Services. Private Data Network Service provides network connectivity among multiple premise locations suitable for data communications requirements within a private network. Customer may select optional add-on features based on individual Customer requirements (“Add On Features”). Optional features involve additional charges.
b. Private Line Service – Provides dedicated point-to-point and point to multipoint transport over a fiber based SONET backbone. Private Line Service may be available in both protected and unprotected configurations with transmission speeds ranging from 1.5Mbps (DS1) to 10Gbps (OC-192).
c. Wavelength Service – Provides dedicated metro and regional high-speed, unprotected, point-to-point transport using Dense Wavelength Division Multiplexing over a fiber based SONET backbone with transmission speeds of 2.5Gbps and 10Gbps. Standard interface is traditional 2-fiber hand-off, with an available Ethernet interface available for 10Gpbs speeds only.
Exhibit B – IP Data Services
1. Service Description(s)
a. IP Connect – Provides TDM based local IP transport with connection speeds ranging from 1.5Mbps (T1) to 12.0Mbps (8xT) in 1.5Mbps increments. Service includes Dedicated Internet Access, managed router (CPE), and TDM local access circuits.
b. Dedicated Internet Access – connectivity and access to the public Internet from Customer’s private IP network via a centralized Voyant Provider Edge device.
c. Private Data Network Service – a secure, private data communications service enabled at Customer premise locations through a common network. Private Data Network includes: local access, transport through the Voyant network, and an optional Voyant owned and managed router at each Customer site, and management and support services as needed to support Customer selected Services. Private Data Network Service provides network connectivity among multiple premise locations suitable for data communications requirements within a private network. Customer may select optional add-on features based on individual Customer requirements (“Add On Features”). Optional features involve additional charges.
2. Acceptable Use Policy
a. Voyant does not actively monitor nor exercise editorial control over the content of any web site, electronic mail transmission, mailing list, News Group or other material created or accessible over Voyant networks. However, Voyant reserves the right to remove any materials, that, in Voyant’s sole discretion, are potentially illegal, may subject Voyant to liability, or violate this Acceptable Use Policy (“AUP”). Such materials may include, but are not limited to, material that is illegal, inappropriate, obscene (including child pornography), defamatory, libelous, threatening, abusive, hateful, or excessively violent. Any violation of this Policy may result in the suspension or cancellation of Voyant services without liability to Voyant. Channeling any part of any such activity through Voyant’s network resources shall constitute a violation of this Policy.
b. Voyant WILL IN NO EVENT BE LIABLE OR RESPONSIBLE FOR THE INTERNET OR ANY INFORMATION CONTAINED THEREON. Voyant DOES NOT WARRANT AND DOES NOT ASSUME ANY LIABILITY FOR ANY CONSEQUENCES SUFFERED BY ANY PERSON AS A RESULT OF OBTAINING INTERNET ACCESS INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM INTERNET CONTENT OR FROM COMPUTER VIRUSES.
c. Using Voyant services and equipment for illegal purposes or in support of illegal activities is strictly prohibited. Voyant reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. Activities, which are in violation of any local, state or federal laws, statutes, regulations, treaties and/or tariffs, would constitute a flagrant violation of the AUP. Should any Customer activity threaten the integrity of or threaten to adversely affect Voyant’s network, Voyant shall be allowed to take steps to reduce or contain the damage, including termination or suspension of the DIA Service.
3. Fraud and Network Security. Voyant shall not be liable for any damages which Customer may incur as a result of the unauthorized use of Customer’s network facilities. Such use includes, but is not limited to, unauthorized access to Customer provided equipment and/or Customer’s network. In no event will Voyant be liable for security or protection of Customer’s network, transmission facilities or equipment from unauthorized access, or for any unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedure, and information or other network elements or content through fraudulent means or devices. Customer shall remain responsible for any charges irrespective of any actual or alleged unauthorized or fraudulent use. Voyant shall have the right, but not the obligation, to immediately deactivate Customer’s services in the event Voyant reasonably believes such service is the subject of theft or fraud.
4. Spam. Voyant prohibits the transmission, distribution or storage of unwanted or offensive content. Prohibited transmissions include without limitation, viruses, trojan horse programs, messages which include character sequences intended to control the recipient’s computer or display screen, make-money fast schemes, pyramid or chain letters, fraudulent offers, threats, harassment, defamation, postings to a newsgroup in violation of its rules, charter or FAQ, unsolicited advertising (whether commercial or informational) and unsolicited e-mail (“SPAM”). All forms of SPAM, and all activities that have the effect of facilitating SPAM, are strictly prohibited. Violation of this provision will result in termination of any applicable service(s). Voyant shall be allowed to take any action it deems necessary to prevent the transmission, distribution or storage of SPAM.
5. Traffic Limitation. The IP/based data Services provided hereunder are to be used only in conjunction with services purchased from Voyant. Notwithstanding anything in this Agreement to the contrary, no data traffic shall traverse Voyant’s connections unless such traffic originates from or is destined for Customer end-users assigned to the service ports provided under this Agreement. Traffic not described in the preceding sentence shall be blocked from traversing Voyant’s peering connections.
Exhibit C – IP Voice Services
1. Service Description(s)
a. Business Trunking – a dynamically allocated voice service deployed over an eligible broadband data service The Customer may select a number of voice lines terminating to Customer-provided premise-based phone equipment using a PRI or SIP Trunk. The following features are included with standard pricing: local and long distance calling, managed router with voice and data interfaces. Optional features include but are not limited to: enhanced 911 service, toll free telephone numbers, DID blocks, directory listing. Optional features involve additional charges.
b. Business Lines – a Voyant managed hosted PBX voice service with local and long distance calling and call control features, with service provided via Analog interface, IP Phone, or soft client. One (1) individual telephone number provided per voice seat, regardless of type. The following features are included with standard pricing: extension dialing, set of call features based on type of voice seat selected, voice web portal. Optional features include but are not limited to: enhanced 911 service, hunt group and series completion, auto attendant, voice messaging, receptionist console, call center, additional telephone numbers, audio conferencing, video conferencing. Optional features involve additional charges.
c. Audio Conferencing – an on-demand audio conferencing service with no reservation required for multi-participant audio meetings. Audio conference control is provided through touch-tone commands on the phone.
d. Video Conferencing – audio and video conferencing service with standard options such as point-to-point or multi-site participant meetings using Customer’s video conferencing endpoints to broadcast audio and video sessions. Video Conferencing Bridging service is optional. Bridge availability will be determined on a first come, first served basis. Optional features involve additional charges.
2. Customer Obligations Concerning Emergency 911 Service Limitations, Limitation of Liability and Indemnification
a. Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or disconnecting the Service.
b. Customer agrees to provide Voyant with detailed information related to the Customer’s main location, contact information and all end-user addresses/locations corresponding to all telephones/stations. Customer agrees to continually update this information and shall provide Voyant with written notification prior to implementing any moves, adds or changes to telephones/stations. Customer acknowledges that failure to provide such information on a timely basis will severely impair Voyant’s ability to provide emergency 911 services. _______________(initial)
c. Customer understands and agrees it is their responsibility to register the physical location where services will be utilized with Voyant. Customer also understands that if user moves the device to another location, it is Customer’s responsibility to notify Voyant of new location. Failure to register locations may result in 911 calls be routed to the incorrect public safety answering point. ______________(initial)
d. Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
e. Service Outages Due to Broadband or Internet Outage or Suspension or Disconnection of Broadband Service or ISP Service. Service outages or suspensions or disconnections of service by Customer’s broadband service provider or ISP will prevent all Services, including 911 Dialing, from functioning.
f. Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. Customer understands that Voyant’s 911 Dialing service will not function in the event of a service outage or if Customer’s broadband, ISP or Voyant phone service is terminated. ______________(initial)
g. End User Notification. Voyant will provide the Customer notice regarding the 911 capabilities of the Service suitable for placement near end user phones. It is the Customer’s responsibility to place the provided notice by phones utilizing the Service. If the Customer needs additional notices, the Customer will contact Voyant. The Customer acknowledges it is their responsibility to meet any applicable federal, state, or municipal requirements regarding delivering 911 capabilities to their end users. _____________ (initial)
h. Voyant shall have no responsibility or liability to the Customer or any third party in connection with or for responding to emergency 911 or other emergency referral calls. Customer agrees to indemnify and defend Voyant from and against any actions and/or liability arising out of Voyant’s provision of said service.
3. Fraud and Network Security. Voyant shall not be liable for any damages, including, without limitation usage and toll charges which Customer may incur as a result of the unauthorized use of Customer’s telephone and/or network facilities. This unauthorized use includes, but is not limited to, the placement of calls from Customer’s premises and the placement of calls through Customer provided equipment and/or Customer’s network. In no event will Voyant be liable for security or protection of Customer’s network, transmission facilities or equipment from unauthorized access, or for any unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedure, and information or other network elements or content through fraudulent means or devices. Customer shall remain responsible for any long distance charges or other charges irrespective of any actual or alleged unauthorized or fraudulent use. Voyant shall have the right, but not the obligation, to immediately deactivate Customer’s services in the event Voyant reasonably believes such service is the subject of theft or fraud.
4. Voice Traffic Restrictions. Voyant prohibits using the Service without prior written approval for high-volume auto-dialing, continuous or extensive call forwarding, high-volume telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately disconnect or modify Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of the aforementioned or similar unapproved activities.
5. Customer Obligations. Customer acknowledges and agrees that Customer will utilize and connect only IP based telephony devices and software client-based softphones that are approved and certified by Voyant for use with service provided hereunder. Any IP telephony devices and software client-based softphones not included on Voyant’s approved and certified list are expressly prohibited from use with Voyant service. Voyant shall have the right to update and modify from time to time, said list of approved and certified equipment.
6. Voice Usage Policy. As an optional service, Voyant offers toll and local voice services on an unmetered basis. Customers who subscribe to this optional service are not charged on a minute of use basis for certain types of calls as more fully described in the unmetered service offering. For Business Lines with unmetered usage, the service is available for a single user per Business Line. For Business Trunking with unmetered usage, service is available for multiple users per trunk. Unmetered services are only available with normal, reasonable business usage. Prohibited usage includes but is not limited to the following:
a. High-volume call centers, usage involving auto-dialing, predictive dialers, continuous or extensive call forwarding, and high volume telemarketing.
b. Resale, use, or providing access to unmetered service outside of the end Customer or those that would normally access such services during normal business usage.
c. High volume conference calling services
d. Routing a disproportionate volume or percentage of high cost voice traffic to Voyant that exceeds reasonable business usage.
e. Abnormal calling patterns, including but not limited to routing a disproportionate number of short duration or unanswered calls to Voyant that exceeds reasonable business usage.
If Voyant in its sole discretion determines usage is prohibited or exceeds normal business usage, Voyant will convert Customer services to a metered plan that will result in increased usage fees. Voyant reserves the right to modify the Voice Usage Policy and any Services that include unmetered usage without notice.
7. Call Recording. Voyant offers Call Recording as an add-on feature associated with Voice over IP Services. Notification and consent requirements for recording voice calls varies by state and jurisdiction. Some jurisdictions require consent to be obtained from all parties to record a call. Additional state and federal laws or industry specific guidelines and regulations may apply regarding the storage, security, and access to call detail records and the recorded media itself. Examples of such laws, guidelines, or regulations include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health (HITECH) Act, and the Payment Card Industry Data Security Standard. Customer is solely responsible for complying with all state, federal, or industry specific guideline or regulations in any relevant jurisdiction when using Call Recording features. Voyant is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of Call Recording features or the use of its products by the Customer, whether legal or illegal, and Customer will indemnify and hold Voyant harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable laws or regulations in any jurisdiction.
8. Managed Phones. As an optional service,Voyant offers Managed Phones as an add-on feature associated with Voice over IP Services. Customer is responsible for installation and placement of Managed Phones unless otherwise specified in an attached service request.
Exhibit D – Collocation Services
1. Service Description(s) Voyant collocation services include the following:
a. Collocation Space – 1/3, 1/2, or one (1) standard telecommunications Rack in Voyant’s Data Center Facilities (the “Premises”);
b. Power – up to a maximum of 30Amps AC power per Rack fed from an Uninterruptible Power Supply (“UPS”); includes HVAC, fire suppression, and generator services common to the Premises;
c. Cross Connects – Optional cross-connects through Voyant’s facilities to other Voyant collocation customers are available at specified rates.
2. License. Voyant hereby grants Customer a non-exclusive License to install, operate, and maintain Customer-owned telecommunications equipment and cabling (“Customer Equipment”) in certain designated portions of the Premises (the “Space”), as identified in the Service Addendum. Voyant retains the right to access the Space for any legitimate business purpose at any time. Customer shall have sole responsibility for maintenance of the Customer Equipment. The License shall not grant or otherwise create any easement, leasehold, or any other real property interest in the Space or the Premises. Customer agrees that it shall have no ownership or other real property right(s) as a tenant in the Premises.
3. Acceptable Use. Customer may use the Space only for the purposes of locating the Customer Equipment within the Space to terminate its transport services and/or cross-connect to Voyant’s facilities within the Premises. Customer shall obtain and maintain, at all times during the Term, any and all necessary authorizations and/or approvals (governmental or otherwise) to operate Customer’s equipment. Customer shall not modify or improve the Space without the prior written approval of Voyant. Any and all cross-connections shall be established only under the control and direction of Voyant.
4. Indemnification & Liability. The Parties acknowledge that pursuant to the collocation services described herein, Customer shall have access to Voyant’s facilities and premises. As such, Customer shall be liable for, and shall indemnify Voyant against, any loss or damage to Voyant’s facilities, premises, or equipment caused by Customer’s acts or omissions. Customer agrees to reimburse Voyant for the reasonable cost of repair of Voyant’s equipment, or the replacement thereof, within thirty (30) days after receipt by Customer of a written request for such reimbursement. Voyant shall be liable for any loss of, or damage to, Customer’s equipment caused by Voyant’s negligence, intentional acts, willful misconduct, or unauthorized maintenance. Voyant shall reimburse Customer for the reasonable cost of repair of the equipment, or the replacement thereof, within thirty (30) days after receipt by Voyant of a written request for such reimbursement from Customer.
5. Facilities & Equipment.
a. Voyant, or its agent, shall provide, install, maintain, repair, operate and control Voyant’s facilities and equipment. Unless specifically provided for herein, or in any service request, Voyant shall pay the cost of purchase and installing any Voyant equipment.
b. Voyant’s facilities and equipment shall remain the sole and exclusive property of Voyant and nothing contained herein shall give or convey to Customer, or any third party, any right, title, or interest whatsoever in Voyant’s equipment. Voyant’s equipment shall remain personal property, notwithstanding that it may be, or become, attached to, or embedded into real property. Customer shall not tamper with, nor remove, any identification markings or labels attached to Voyant equipment identifying Voyant’s ownership interest in the equipment.
c. Voyant and Customer shall establish a physical point of demarcation (“demarc”) within or adjoining the Space to define Voyant facilities from the Space and to facilitate termination of any cross-connections to and from the Space. Any equipment on the Customer’s side of the demarc, whether or not physically located within the Space, shall be the sole responsibility of Customer.
d. Voyant shall have no obligation to install, maintain, or repair any Customer Equipment. If, on responding to a Customer-initiated service call, Voyant and Customer jointly determine that the cause of the service deficiency was in any way caused by equipment other than Voyant’s equipment, Customer shall compensate Voyant for actual time and materials expended during the service call.
e. Neither party shall adjust, align, attempt to repair, relocate, or remove the other party’s equipment, except as expressly authorized in writing by the other party.
6. Customer Equipment.
a. The Customer will retain ownership of Customer Equipment installed on Voyant’s premises. All risk of loss or damage to this Equipment shall remain with the Customer, and Voyant shall have no responsibility for this Equipment.
b. Voyant reserves the right to remove or relocate any Customer Equipment that will, in the sole opinion of Voyant, be detrimental to Voyant’s ability to provide the services to the Customer or services to other Customer’s on the Premises; provided, however, that in the event that such removal may disrupt or otherwise materially affect Customer’s service, then Voyant shall notify Customer prior to such removal and work with Customer to the end that such disruption or other material affect is minimized.
c. Unless otherwise stated in this Agreement, Customer represents that it is the owner of the Customer Equipment. If Customer is leasing the equipment, or has granted any third party a lien or other security interest in the Customer Equipment, the Customer agrees that it will comply with all of the terms of the lease or security agreement between Customer and the lessor or lienholder of the Equipment, and that it has any requisite permission(s) to place such Customer Equipment in the Space.
d. As security for the payments to be made hereunder, Customer hereby grants Voyant a security interest in any Customer Equipment in the Space. In the event the Customer fails to timely pay any and all amounts due under this Addendum, or otherwise breaches the Agreement, Voyant may, in its sole discretion, terminate the Agreement and immediately exercise any and all rights given to a secured party under Minnesota law.
7. Removal of Equipment. Within thirty (30) days of expiration or other termination of this Addendum, Customer shall remove any and all Customer Equipment from the Space. Customer shall return the Space to its original condition, reasonable wear and tear expected, and shall reimburse Voyant for the reasonable cost(s) of repair or damage to the Space to the extent such damage is caused by Customer’s use of or occupancy of the Space. In the event Customer fails to remove any Customer Equipment from the Space upon the expiration of such thirty (30) day period, then such equipment shall be deemed abandoned and shall immediately and automatically be titled in Voyant without further act or deed. Customer agrees that upon such abandonment, Voyant may relocate, assign, transfer, or otherwise dispose of such equipment in its sole discretion. Customer shall indemnify and release Voyant from any and all claims for damages that may subsequently arise, whether by Customer, or other third parties, including any lienholders in any Customer Equipment.
8. Security. Voyant will provide and maintain in working condition card readers, scanners and/or other access devices as selected by Voyant for any access required under this Addendum. Customer shall under no circumstances prop open any door to, or otherwise bypass the security measures established for access to any secured area under any Service Schedule. Should Voyant provide any security device for individual customers, such as a lock, Customer shall be solely responsible for locking and/or activating such device. In the event that any third party gains access to any Voyant facility through access cards, keys or other access devices provided to Customer, Customer shall be solely responsible for any damage caused by such parties, Customer shall be responsible for the cost of replacing any security devices lost or stolen after delivery thereof to Customer.
Exhibit E – Primary Rate Interface (PRI) Service
1. Service Description(s): Primary Rate Interface (PRI) has a capacity of 1.544 megabits per second (Mbps) and has multiple channels: 23 B-channels, and one D-Channel, and is also known as 23 B+D access. The 64-Kbps B-channels carry user information such as voice calls, circuit-switched data, or video, while the D channel carries call-control signaling information. When equipped, the D-channel can control a maximum of 95 B-channels. The B channels may be provisioned on the same facility as the D-channel or on other PRS T1 facilities. Each B-channel is dedicated to inward, outward or 2-way traffic. The Customer may use CPE to bond together 64 Kbps B-channels for the transmission of circuit-`switched data or video. A single telephone directory number is provided with each PRS ordered. One primary directory listing is provided per PRS. Additional listings may be provided for an additional charge based on the number of listing requested.
2. VOICE/DATA PRS with DIRECT INWARD DIALING (DID): This service includes: the T-1, Service Configuration, and a 2-way trunk/DID. Service configuration provides 23 B-channels and 1 D channel. The B-channels carry user information such as voice calls, circuit-switched data or video. The D-channel handles signaling information.
3. VOICE/DATA PRS with UNIFORM ACCESS SOLUTION (UAS): This service includes: the T-1, Service Configuration, and one number route indexing combined with the trunk. This service configuration provides for 23 B-channels and 1-D channel. The B channels carry user information such as voice calls, circuit-switched data or video while the D-channel handles signaling information.
4. DATA PRS 23B+D: This service configuration provides for 23 B channels and 1 D channel. The B-channels carry user information such as voice calls, circuit-switched data, or video while the D – channel handles signaling information.
5. DATA PRS 24B: This service configuration provides for 24 channels. The B-channels carry user information such as voice calls, circuit switched data, or video. The signaling information is provided by a D Channel on the first T1 facility.
6. ALTERNATIVE CONFIGURATIONIf the Customer CPE is unable to support PRI-ISDN configuration, this service is alternatively available with Channel Associated Signaling. Up to 24 2-way DID voice channels are supported in this configuration.
7. Intrastate Tariff. Voyant’s intrastate tariff(s) (“Tariff”) in certain states are a necessary part of this Integrated Services Digital Network (ISDN) – Primary Rate Interface (PRI) Agreement (the “Agreement”), and any terms and conditions of service set forth in the Tariff are incorporated and adopted in their entirety into this Agreement. In the event of conflict between the terms of this Agreement and the terms of the Tariff, the Tariff shall govern.
Exhibit F – Equipment Purchase
1. Equipment Purchase
a. Customer will be billed the full purchase price as quoted on attached Service Addendum or subsequent Invoice(s), plus applicable taxes.
b. Voyant AND ITS CONTRACTORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER ARISING FROM OR RELATED TO THE EQUIPMENT OR ITS FAILURE TO MEET ANY SPECIFICATIONS INCLUDING THE MANUFACTURER’S WARRANTY OR ANY OTHER OBLIGATION, OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER Voyant HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS, OR DAMAGE. CUSTOMER’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS OF DAMAGE RELATED TO THE EQUIPMENT AND/OR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S RELATIONSHIP WITH Voyant WILL BE LIMITED TO THE TOTAL PURCHASE PRICE PAID BY CUSTOMER TO Voyant FOR THE EQUIPMENT.
c. Acceptance and Return Policy
i. Customer must notify Voyant in writing within 3 business days of receipt that it wishes to return equipment for any reason. Equipment must be returned via freight carrier within 10 business days of notification at Customer’s expense. For Customer to receive a refund, equipment and all packaging material must be returned in original condition. If equipment arrives damaged, Customer must refuse shipment and notify Voyant. Otherwise equipment will be deemed accepted by Customer.
d. Warranty Information
i. Voyant does not warrant the compatibility of the equipment with any computer, operating system, or networking equipment. Voyant does not offer any type of warranty for used equipment. All new equipment is limited to the terms of the manufacturer’s warranty (based on standards applied by manufacturer). If equipment fails due to a manufacturing defect while still under warranty, the Customer will need to contact the equipment manufacturer to coordinate a replacement.
ii. Exception and Exclusions. This Limited Warranty does not cover defects due to defacement, misuse, abuse, neglect, improper use, improper electrical voltages or current, repairs by others, alterations, modifications, accidents, fire, flood, vandalism, acts of God, or the elements.