Voyant

Master Services Agreement (MSA)

Arianit Fazliu

THIS AGREEMENT (the “Agreement”) is made and entered into by and between Voyant Communications, LLC on behalf of itself and its affiliate, ANPI Business, LLC d/b/a Voyant Communications (Voyant”), and the party receiving services (“Services”) from Voyant (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 Master Services Agreement between Customer and Voyant.

1. Term

The Term of this Agreement shall commence on the date (1) that Customer executes a Service Addendum, Order or other Exhibit or (2) the date that Voyant begins the Service delivery process, whichever occurs first (“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 Agreement, 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 may 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. Purchased Equipment – (See Exhibit E)

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.

8. Payment

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. All Service Fees and other charges are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including, without limitation, Universal Service Fees and E911 taxes). Customer is responsible for taxes and fees billed by Voyant. Taxes and regulatory fees may increase during the Term, and Customer will pay such increased fees commencing with the next monthly bill. Should Customer claim an exemption of any taxes or regulatory fees, any relief from taxes or regulatory fees will begin upon receipt of proof of exemption.

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.

e. Voyant charges a Cost Recovery Fee as a percentage of monthly billed services.  A Cost Recovery Fee allows Voyant to offset expenses and management costs incurred by Voyant such as state and federal regulatory fees and business licenses.

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. This Agreement shall be binding upon the parties to this Agreement and shall inure to the benefit of their respective heirs, administrators, executors, lawful successors and permitted assigns.

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 under this Agreement 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

“Confidential Information” means any business or technical information disclosed by one Party to the other Party that: (1) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (2) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. “Confidential Information” does not include any information which: (1) is publicly available through no fault of receiving Party; (2) was rightfully known to receiving party prior to disclosure; (3) is independently developed by the receiving Party without use of or reference to the disclosing party’s Confidential Information. For clarity, Voyant software and access-restricted customer portal capabilities constitute Confidential Information.

During the Term, each Party agrees it will not disclose Confidential Information to third parties without written consent of the other Party, except to those employees, vendors, or affiliated entities with a bona fide need to know and are legally bound to keep such information confidential consistent with this Agreement. Either Party may disclose Confidential Information of the other Party as required by law.

15. Intellectual Property

All content of the Voyant or any affiliated websites such as text, graphics, logos, button icons, images, data compilations and software, is the property of Voyant and is protected by intellectual property laws. Except where allowed by law, Customer may not attempt to reverse engineer, decompile, recreate source code, or create derivative works of any software used in providing Voyant Services. Customer agrees to indemnify and hold harmless Voyant, its officers, employees and affiliates against third-party claims alleging that Customer, Customer employees, officers, affiliates users or end users use the Services in a way that violates a third party’s intellectual property rights. Customer hereby grants Voyant a limited license to use Customer’s name and logo for marketing purposes. Customer may revoke such license at any time by providing sixty (60) days’ prior written notice.

16. 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.

17. 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.

18. 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.

19. 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
3905 Annapolis Lane N, Suite 195
Plymouth, MN 55447
Fax: 763-230-4715
billing@voyant.com

If to Customer: Customer will provide notice information to Voyant.

The addresses set forth may be changed by appropriate notice to the other party.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. Service Requests and Delivery

a. Unless otherwise specified in a Service Order, Voyant may incrementally deliver individual Services, when ready, which may result in different Service Start Dates for such incrementally delivered Services. For Services ordered to multiple service locations, Voyant may incrementally deliver Service to each Customer service location when ready. The Service Term for incrementally delivered Services shall begin on the Service Start Date of the first location and/or Service delivered and shall end after the period specified as the Service Term from the Service Start Date of the last location and/or Service delivered.

b. If a Service Order is a renewal, add, change, or disconnect, any associated billing change is effective when the associated Service is reconfigured.  Customer must request changes or disconnection of Service via formal Notice. For purposes of clarification, a LSR or porting of a telephone number does not constitute notice.

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 User Network Interface (“UNI”) at Customer selected sub-rate bandwidths from 5 Mbps to 10 Gbps 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 Ethernet platform, or between a single customer location and Voyant provided application service.

ii. E-LAN – Dedicated multipoint connection between three (3) or more customer locations over a layer 2 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.

d. Service Jurisdiction – For Intrastate Transport Service: Customer acknowledges and certifies that the interstate traffic (including Internet and international traffic) constitutes ten percent (10%) or less of the total traffic on any Ethernet, dedicated, or special access Service. For Interstate Transport Service: Customer acknowledges and certifies that more than ten percent (10%) of the traffic to be transmitted will be interstate in nature.

e. Customer Obligations – If the Customer changes an installation date after Voyant has provided a Firm Order Commitment, Customer must reimburse Voyant for any third-party costs incurred as a result of the change request.  If the Customer changes a service termination date after Voyant has provided a Disconnect Firm Order Commitment, the written notice period for termination shall restart and Customer must reimburse Voyant for any third-party costs incurred as a result of the change request.

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.

d. Managed Software-Defined Wide Area Networking (SD-WAN) – a managed communications enablement service providing virtual private networks over multiple public or private broadband services.  Managed SD-WAN services include Voyant owned and managed customer premise hardware appliance, private data networking with optional encryption, configuration management, and fault management.  Unless specified otherwise in a Service Addendum, fault resolution for Customer-provided public or private broadband services are a Customer responsibility.

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.

6. Service Jurisdiction

For Intrastate Transport Service: Customer acknowledges and certifies that the interstate traffic (including Internet and international traffic) constitutes ten percent (10%) or less of the total traffic on any Ethernet, dedicated, or special access Service. For Interstate Transport Service: Customer acknowledges and certifies that more than ten percent (10%) of the traffic to be transmitted will be interstate in nature.

7. Customer Obligations

If the Customer changes an installation date after Voyant has provided a Firm Order Commitment, Customer must reimburse Voyant for any third-party costs incurred as a result of the change request.  If the Customer changes a service termination date after Voyant has provided a Disconnect Firm Order Commitment, the written notice period for termination shall restart and Customer must reimburse Voyant for any third-party costs incurred as a result of the change request.

Exhibit C – IP Voice Services

1. Service Description(s)

a. SIP 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, or choose dynamically allocated channels via an elastic SIP Trunk. Features include but are not limited to: local and long distance calling, enhanced 911 service, toll free telephone numbers, Telephone Numbers, directory listing. Some features involve additional charges.

b. Hosted Communications – a Voyant managed cloud PBX voice service with local calling and service 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. Additional features include but are not limited to: metered long distance, unmetered long distance, enhanced 911 service, hunt group and series completion, auto attendant, voice messaging, receptionist console, call center, additional telephone numbers, audio conferencing, video conferencing, instant messaging and presence. Additional features may 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. Telephone Numbers

Voyant-Provided Telephone Numbers. Voyant provides new Telephone Numbers in Offered Rate Centers via the Voyant Portal. Voyant retains ownership and is the customer of record for Voyant provided Telephone Numbers used with our Services. Unless required by law, we reserve the right to refuse porting of Voyant provided Telephone Numbers at our sole discretion unless Customer has paid for the number in excess of 90 days.

Voyant reserves the right to reclaim Voyant provided Telephone Numbers that are underutilized or are associated with accounts that are suspended due to non-payment, suspected fraud, or abuse, 60 days after notice.

Ported Telephone Numbers. Voyant can port-in existing Telephone Numbers registered to another carrier upon request. Customer represents and warrants that Customer has all rights and authorizations required necessary for the porting and will provide necessary documentation before the port request will be processed.

If Customer changes a requested service activation date such that Voyant incurs charges from a donating carrier for Local Number Portability order change, cancellation, or snapback, Voyant will charge the Customer any fees or charges incurred as a result of the Customer requested cancellation or change. If a Customer ports out a number in error, Voyant will charge the Customer any fees or charges incurred to retrieve or snapback the number from the winning carrier.

Customer must disconnect any Telephone Numbers in the Voyant Portal that are not being used or have ported away from Voyant. Failure to disconnect numbers will result in continued monthly billing for those Services, which Customer agrees to pay.

3. Customer Obligations Concerning Emergency 911 Service Limitations, Limitation of Liability and Indemnification

E911 Terms & Conditions

THIS SECTION CONTAINS IMPORTANT INFORMATION ABOUT 911 SERVICES. PLEASE READ CAREFULLY.

Definitions

Customer Obligations Concerning Emergency 911 Service Limitations. Due to FCC rulings and regulations, all customers who use Voyant Services as their primary residential or business telephone carrier must activate 911 Emergency Services on at least one telephone number (Enhanced DID) per location.

Customer agrees to provide Voyant with detailed address and contact information related to any location where Customer is utilizing Voyant Services and may access 911 Emergency Services. Customer agrees to continually update this information prior to implementing any moves, adds or changes to Voyant Services or Customer service location. Customer acknowledges that failure to provide such information on a timely basis will severely impair Voyant’s ability to provide emergency 911 services. Failure to update location and contact information may result in 911 calls routing to the incorrect PSAP.

To ensure any E911 call is routed properly, Customer must set their outbound caller ID value to the specific 10-digit number (Enhanced DID) which includes 911 Service. This is how the Voyant network identifies Your Emergency Response Location and determines PSAP routing.

A call routing to an ECRC due to Customer originating a call from a telephone number not supporting 911 service, or failing to set the outbound caller ID value to the correct number, will result in a $75 ECRC surcharge per E911 call.

Service Outages Due to Power Failure or Broadband/Internet Service Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply at Customer location, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, Customer may need to reset or reconfigure devices at the Customer service location prior to utilizing the Service, including 911 Dialing. Service outage, suspension, or disconnection of the Customer Broadband or Internet Service will prevent all Services, including 911 dialing, from functioning.

Service Outages Due to 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.

End User Notification. Voyant will provide the Customer printed 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.

Voyant shall have no responsibility or liability to Customer or any third party in connection with or for responding to emergency 911 or other emergency referral calls. Customer agrees to indemnify and hold Voyant harmless from and against any actions and/or liability arising out of Voyant’s provision of 911 Service2.

Alternate 911 Arrangements. If Customer is not comfortable with the limitations of the 911 Dialing service, Customer should consider having an alternate means of accessing traditional 911 or E911 services or disconnecting the Service.

4. 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.

5. 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.

6. 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.  Customer must properly configure Customer provided servers and/or devices for use with Voyant Services. Voyant does not offer free technical assistance for Customer provided third party devices which may include but not limited to PBX Servers/Switches, IP Phones, and ATA Adapters. Voyant does offer installation and professional services for configuration and setup assistance, please contact our sales department at sales@voyant.com or call 866.629.8200.  Please note that due to the overwhelming number of third party devices on the market, professional service engagements are not guaranteed.

7. Voice Usage Policy

With some service offerings, Voyant offers toll and local voice services on an unmetered basis. Customers who subscribe to services including unmetered usage are not charged on a minute of use basis for certain types of calls as more fully described in the unmetered service offering. For Unified Communications seats with unmetered usage, the service is available for a single user per seat. For SIP 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:

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.

Caller ID “spoofing” i.e. placing calls to the Voyant network with randomly generated 10-digit phone numbers, or any number not associated with your Account, set as the outbound caller ID is strictly prohibited. Customer agrees that information that Customer provides to the LIDB/CNAM database will not be misleading or inaccurate, and Customer further agrees to adhere to industry standards, laws, rules and regulations relating to CNAM, including the Truth in Caller ID Act.  Voyant reserves the right to immediately disconnect or modify Service if we determine, in our sole and absolute discretion, that Customer has at any time used the Service or devices for any of the aforementioned or similar unapproved activities.  Voyant reserves the right to modify the Voice Usage Policy and any Services that include unmetered usage without notice.

8. 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.

9. Rate Plans

Voyant reserves the right to modify pricing for usage-based services, including long distance and international rate plans, during the term of this Agreement.

10. 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.

11. Messaging

a. Some Voyant Services are Messaging enabled, providing for the exchange of Short Message Service (“SMS”) and Multimedia Message Service (“MMS”) messages with other networks via the Voyant Messaging Gateway.  Voyant will provide to Customer, on a non-exclusive basis, the Service whereby Voyant shall (a) transmit to destination networks directly, or indirectly through an intermediary, SMS or MMS messages successfully received by Voyant from Customer and (b) transmit to Customer SMS or MMS messages Voyant successfully receives directly from originating networks, or indirectly from an intermediary, and that is properly designated for Customer.  Voyant has no obligation hereunder to transmit any SMS or MMS message to, or receive and transmit any SMS or MMS message from, any entity with which Voyant does not have direct or indirect connectivity.

b. Interconnection for the exchange of SMS and MMS is via API, or Voyant-provided web interface.

c. Definitions:

d. Customer may utilize Voyant Messaging for Telephone Numbers associated with other North American Local Exchange Carriers with a Letter of Authorization (LOA)

e. Content Control. Customer agrees that Voyant exercises no control whatsoever over any Content of any Messages and is a passive conduit in transmitting, delivering, and handling Content. As between Customer and Voyant, Customer is responsible for (i) the Content delivered by it, or by any third party for it or on its behalf, to a Voyant Gateway and (ii) the acts or omissions of End Users and any such third parties with respect to any Content

f. Inappropriate Content. Customer shall not use the Services, or authorize the Services to be used directly or indirectly, to transmit Inappropriate Content. “Inappropriate Content” means any Content and/or Message that (i) is unsolicited, including without limitation, “junk mail,” “bulk e-mail”, spam or other unsolicited advertising material; (ii) causes the introduction of “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other similar destructive computer programming routines into the Voyant Network or the handsets or other devices of any Network Operator’s subscribers; (iii) violates any Applicable Law, (iv) violates the Mobile Marketing Association Guidelines or any Network Operator requirements, conditions, or codes of practice; (v) constitutes “hate speech” directed at an individual or a group based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group, (vi) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; or (vii) infringes or misappropriates the intellectual property of any Person. Voyant shall have the right, in its sole, but reasonably exercised, discretion, not to accept, transmit or deliver any Messages and/or Content that Voyant reasonably believes contains Inappropriate Content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including without limitation any law enforcement, proceeding, process, or inquiry.

g. Proper Usage of Services. Customer agrees that Customer shall not bundle, aggregate, or otherwise combine in any way any Messages originating from any Telephone Number with any Messages originating from any other Telephone Number, or engage in Group Messaging, it being understood and agreed that each single unique Telephone Number shall only and exclusively be used for, including without limitation any and all billing and reporting purposes with respect to, Messages originating and terminating from and to such single, unique Telephone Number. Customer will strictly and fully comply with the following:

If Customer fails to comply with any of the foregoing, Voyant may terminate the Service or remove Customer’s telephone numbers from the Service immediately.  Customer indemnifies and holds harmless Voyant from and against any and all losses, claims, costs or damages of whatever nature arising from or relating to Customer’s violation of this Section

h. Voyant will provide the Service with features, capabilities, options, and pricing as described in applicable Addenda or Exhibits.  Customer acknowledges and agrees that Customer and Customer end-users will adhere to Voyant Messaging Terms and Conditions posted on the Voyant website ( https://www.voyant.com/legal-notices ) as well as the most recent CTIA P2P Guidelines for SMS and MMS Messaging.

i. Unless explicitly allowed in attached Addenda, Application to Person (“A2P”) use-cases are prohibited from this service.

12. Application Programming Interface (API) Services

Voyant provides API Services to Customers for the provision of Telephone Numbers and Voice Services, including the ability to add, modify, and delete Services. Customer must disconnect any Telephone Numbers or Services added or modified via API that are not being used or have ported away from Voyant. Failure of a Customer to disconnect numbers from their account under these circumstances will result in continued monthly billing for those Services, which Customer agrees to pay.  Services available via API may have monthly recurring charge and usage charge as detailed on attached Service Addenda or Exhibits.  Unless specified otherwise, any API Service usage service minimum billing intervals will be 60 seconds initial interval, 60 seconds subsequent intervals.

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 – 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 – 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