The clauses below set forth the terms and conditions upon which Net2Phone Global Services, LLC (“COMPANY”) shall provide and Customer shall purchase wholesale VoIP services (“Services”). Customer agrees as follows:
Rates and Codes Rates are shown in terms of full minutes and calls are billed in one (1) second increments after the initial one (1) second call duration with the exception of calls to Mexico which are billed in sixty (60) second increments with a minimum call duration of sixty (60) seconds. USA rates are shown in terms of full minutes and calls are billed in six (6) second increments after the initial six (6) second call duration. COMPANY reserves the right to increase/decrease its rates and change destination codes at any time upon notice; any such increases/decreases/changes shall be effective immediately unless otherwise stated in the notice. Notice of rate/code changes shall be sent via email to the email address provided by Customer. All in effect rates and codes will be listed on Customer’s web portal. In the event of a conflict between the rates/codes shown on the web portal and any rates/codes contained in any email sent to Customer, the rates on the web portal shall control. The time zone(s) used for identifying effective times and dates for changes contained in any written notice, all peak, off peak and economy traffic, and invoicing and other time sensitive matters shall be New York time, which includes daylight savings time during relevant periods.
USA Termination On a daily basis at least seventy percent (70%) of Customer’s minutes sent to COMPANY for termination in the United States must terminate in combined RBOC locations, wireless, and GTE, as defined by the LERG (collectively “RBOC Locations”). COMPANY shall have the right to apply a $0.05 per minute surcharge to the number of minutes by which Customer’s minutes terminating in United States locations other than RBOC Locations exceeds thirty (30%) percent. Customer shall not send to COMPANY any traffic for termination in Alaska or Hawaii or send premium services/900 or directory assistance unless specific rates for these locations are provided. Further COMPANY shall charge a $.05 per minute surcharge on all intrastate traffic. Any call that cannot be determined to be interstate or intrastate may be charged as intrastate.
Short Duration Calls The parties agree that: (a) calculated on a daily basis, if average call duration for any location falls below 1 minute, then COMPANY may append, at a later date and time, surcharges of an additional $.0.02 on all daily minutes sent; and (b) Calculated on a daily basis, for all calls under twelve (12) seconds in length (“Short Duration Calls”), COMPANY may charge each Short Duration Call an additional $0.02 surcharge per call. The calculations set forth above shall be applied on a mutually exclusive basis to: (i) calls terminating in the United States; and (ii) calls terminating in international locations.
Resale of Services All Services are provided for resale to Customer's customers, end users or subscribers. Customer is responsible for billing and collection from its customers, end users and subscribers including all taxes and fees. Customer is responsible for obtaining and maintaining all licenses, approvals and other authorizations necessary for the resale of Services. Customer hereby agrees to execute such other documents (including but not limited to Universal Service Fund forms) as COMPANY may reasonably request from time to time.
Interconnection The Parties shall connect their respective telecommunications switches via Voice Over Internet Protocol (“VOIP”) equipment which may be provided by a third party supplier (“Supplier”). Each Party shall be responsible for procuring its VOIP equipment from its chosen Supplier and for all contractual obligations with that Supplier. Each Party will notify the other of the date from which the notifying Party’s connectivity will be available.
Prefix Routing Some Customers will be given access to COMPANY’s “prefix dialing feature”, which will allow Customer to route each call to the desired call quality division by entering a dialing prefix as defined by COMPANY. Failure to prefix a call properly will result in calls being billed at the “default” division rates, a setting the Customer controls via the web portal.
Suspension of Services COMPANY reserves the right to immediately suspend all or any part of the Services if: (i) Customer engages in activities that, in COMPANY’s sole discretion, may cause disruption or damage to COMPANY’s network or facilities; (ii) if COMPANY detects any fraudulent use of the Services.; (iii) if Customer’s account is inactive for thirty (30) consecutive days; and/or (iv) if COMPANY requests identifying or other documentation from Customer for legal, administrative or regulatory purposes and Customer fails to provide appropriate documentation (in COMPANY’s sole discretion) within a reasonable time.
Payment Customer shall prepay COMPANY for all Services. In the event the prepayment amount reaches $0, Services shall be automatically suspended, without the necessity of any prior notice to Customer. In such event, COMPANY may (but is not obligated to) reinstitute Services to Customer once the prepayment has been replenished. Any suspension or termination shall not relieve Customer of its obligation to pay any amounts due hereunder. A prepayment replenishment shall be deemed valid only when such replenishment is in COMPANY’s account as cleared funds. Notwithstanding the foregoing, for weekend usage, Customer shall ensure that the prepayment replenishment is in COMPANY’s account as cleared funds by the immediately preceding Thursday before 5pm New York time. COMPANY may in its sole discretion require Customer to increase the prepayment in the event of any increase or anticipated increase in Services provided to Customer. COMPANY may offset against the prepayment any amounts due by Customer that remain unpaid after expiration of any applicable notice or cure periods set forth herein. Customer’s initial prepayment of $1,000 shall include a $200 Program Set-Up Fee. Such Fee shall be waived so long as: (i) Customer’s account is not suspended or terminated by COMPANY during the first year from the date of Service activation; and (ii) Customer does not request a refund of any portion of its initial prepayment during the first year from the date of Service activation. If Customer’s account is inactive for a period of thirty (30) consecutive days then COMPANY may suspend service to Customer pending Customer’s request to reactivate its account. Notification will be made prior to the day of the suspension of Services. If Customer’s account is inactive for a period of ninety (90) consecutive days, then COMPANY reserves the right to expire the Customer’s account and all Customer funds will become the property of COMPANY.
Taxes and Fees. All Services under this Agreement are provided exclusive of any applicable federal, state, local, or foreign taxes, duties, or charges imposed by any governmental authority, or as otherwise provided pursuant to this Agreement. Such taxes, duties, or charges shall be paid directly by Customer. COMPANY may impose any governmental or regulatory fees on a retroactive basis.
Disputed Charges If Customer, in good faith, disputes the amount of any charge, Customer must notify COMPANY in writing of the disputed charge within fifteen (15) days from the date of the call(s) in question and provide the following documentation reasonably required to resolve the dispute. Minute Dispute – Customer must provide COMPANY with a hard copy of the type of minute dispute being issued and must be accompanied by a call detail record from COMPANY's call detail records supporting the alleged erroneous calls or minute duration variances. Rate Dispute – Customer must provide documentation identifying the time period, appropriate rate, total minutes and amount in dispute for each country and documentation detailing the rate agreed upon. Failure to contest a charge within fifteen (15) days of the date of the call(s) in question will create an irrefutable presumption of the correctness of the charge and Customer shall have waived its right to dispute. If Customer pays for Services with a credit card, Customer agrees that it will only raise disputes directly with COMPANY and will not dispute any charges with Customer’s credit card company. Customer agrees to execute any additional documentation necessary to effectuate the previous sentence.
Force Majeure Neither Party shall be responsible nor liable for any obligations (except for the obligation to make payment when due) arising out of, in connection with or relating to any matter occasioned by or due to fire, flood, water, the elements, acts of God, war and threat of imminent war, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond such Party’s reasonable control.
Limitation of Liability In no event shall COMPANY be liable for any indirect incidental, consequential, exemplary, punitive, reliance or special damages, or for any loss of revenue, profits, use, data, goodwill or business opportunities of any kind or nature whatsoever, arising in any manner from the Services. Regardless of whether any claim is based in contract, tort, or other legal theory, COMPANY’s liability under or in connection with the Services shall be limited to five thousand ($5,000) dollars. COMPANY shall not be liable for any damages, whether direct or indirect, caused by services or equipment that is not furnished or managed solely by COMPANY. The Parties acknowledge that the limitations on liability set out in this clause have been negotiated between the Parties and are regarded by the Parties as being reasonable in all circumstances.
No Warranty Except as specifically set forth herein, COMPANY makes no warranty to Customer or any other person or entity, whether express or implied or statutory, as to the description, quality, merchantability, non-infringement, completeness or fitness for a particular use of any of the Services, all such warranties hereby being expressly excluded and disclaimed.
Fraudulent Calls Customer shall not dispute any charges on the basis that fraudulent calls comprised a portion of the traffic volume. Customer shall be responsible for all charges associated with any fraudulent use of the Services regardless of whether or not Customer is aware of such fraudulent use. It is Customer’s sole responsibility to take immediate action to block any fraudulent use.
Indemnity Customer shall indemnify and hold harmless COMPANY and all of its officers, agents, directors, shareholders, subcontractors, subsidiaries, employees and affiliates from and against any claim, cost, damage, demand, liability, loss, penalty, proceeding and reasonable attorney’s fees imposed upon COMPANY by reason of any claims or damages arising out of or related to (i) Customer’s own customers, end users or subscribers use of the Services; (ii) any fraudulent use of the Services; (iii) any other act or omission by the Customer including without limitation breach of any material obligation herein; and (iv) Customer’s or any of its affiliates violation of the Anti Bribery clause below. Customer will not settle any claims, demands, suits, proceedings or actions without COMPANY's prior written consent, which consent shall not be unreasonably withheld or delayed.
Arbitration All disputes that cannot be resolved between the parties shall be submitted to arbitration in accordance with the commercial rules and practices of the American Arbitration Association (“AAA”). The arbitration shall be conducted by one arbitrator, expert in matters relating to telecommunications, mutually selected by the Parties. If the Parties fail to mutually agree upon one arbitrator within thirty (30) days of submission of the dispute to arbitration, one will be appointed in accordance with the commercial rules and practices of the AAA. The arbitration shall be conducted in New Jersey. Any award, order or judgment pursuant to such arbitration shall be deemed final and binding and may be enforced in any court of competent jurisdiction. The Parties agree that the arbitrator shall only have the power and authority to make awards and issue orders as expressly permitted herein and shall not, in any event, make any award that provides for punitive or exemplary damages.
Account Activation Customer understands and agrees that activation of Customer’s account is subject to COMPANY’s receipt of Customer’s initial prepayment and COMPANY’s performance of certain background checks on Customer. COMPANY reserves the right to suspend and/or terminate Services at any time in the event COMPANY determines, in it sole discretion, that it cannot verify Customer’s background information or due to any specific country legal regulations restricting the COMPANY from doing business with the Customer.