These Master Terms and Conditions (“MTCs”) apply to all Service Orders, service tickets, work orders, service level agreements, and other contracts, agreements and invoices (individually and collectively, “Agreement(s)”) with Agility Communications and Technology Services Company or its subsidiaries and affiliates (“AGILITY” or “Company”) and its Business Customers.
1. EFFECTIVE DATE and TERMS
These MTCs shall become effective on the date that the Customer’s signed Service Order is counter-signed by AGILITY. Unless otherwise agreed to
in writing by AGILITY, all Service (defined in Section 4(a) below) shall be provided for a Minimum Service Term of 3 years (the “Term”), from service delivery date. In the event Customer has submitted a number port request, such Term shall commence on the date upon which the number port request is completed; otherwise, the Term shall commence on the date upon which the Service is made available for use
by Customer (the “Service Delivery Date”). The Term shall thereafter continue until its expiration or until the Service Order is otherwise terminated as set forth herein, whichever comes first. Following the initial Term, the Customer Services shall continue on a month-to-month basis until terminated upon thirty (30) calendar days’ prior written notice by either party hereto, or until the parties enter into a new service Agreement.
2. BILLING and PAYMENT TERMS
The fees for Service are as set as follows: Monthly reoccurring service fees shall be billed monthly in advance at the beginning of the customer billing cycle and shall be for the monthly reoccurring service charges, service fees, prior service period usage, and taxes and surcharges.
All usage based calls are rated individually and rounded to the nearest penny, with a minimum charge of one cent ($0.01). Customer shall also be responsible for payment of any applicable local, state or federal taxes, fees and government-imposed charges or surcharges which may include Universal Service Fund, 911 and TRS assessments, PICC fees and payphone compensation charges, among others. Unless otherwise specified, Services are provided and invoices are issued on a monthly basis for actual usage of Service and all subscription fees are due in advance at the start of Service. In the case of a partial month’s service, the initial invoice shall include any pro-rated charges for the current month and the first full month of service. Any set-up, installation or equipment charges shall be paid in advance at the time of or delivery of equipment or service.
In the event of any dispute regarding a billing invoice, Customer shall notify AGILITY in writing within ten (10) calendar days of the invoice date. Thereafter, said invoice shall be deemed to be correct and binding. Payment is due on the date set forth in the invoice as the Due Date, and if no such date is identified then no later than 10 days from the date of the invoice. Any amount not paid within fifteen days after the invoice date shall bear interest commencing on the invoice date and continuing through the date payment is
received, at a rate equal to the lesser of 2.5% per month or the highest rate permitted by law. In addition, invoices not paid by the twenty-fifth (25th)
day from the invoice date will not be eligible for any quoted volume or term discounts. Customer is responsible for paying the entire amount billed
on the invoice, including reasonable disputed charges, whether or not documented in writing to AGILITY. Any dispute resolved in Customer’s favor shall be credited on Customer’s next invoice. Customer shall not seek legal or equitable remedies, including without limitation, injunctive relief,
which would require AGILITY to continue providing Service to Customer.
Accounts that are unpaid by the 25th of each month will be suspended. Accounts that remain past due beyond the 1stday of the following month will be deactivated and sent to collections and consequently, the Customer will forfeit all telephone numbers associated with the account.
3. SECURITY DEPOSITS
a. Security Deposit. In AGILITY\’s sole discretion, AGILITY shall require Customer to deposit funds on reserve (\”Security Deposit\”) in order to receive purchased Services. The Security Deposit will appear on the first invoice in Customer’s Initial Term with AGILITY and shall be paid pursuant to Section 2 herein (Billing and Payment Terms). If AGILITY requires Customer to pay a Security Deposit, AGILITY shall hold the Security Deposit as collateral security for the payment of the charges and other sums of money payable by Customer under any and all Service Orders and for the faithful performance of all other terms, covenants and conditions of Customer hereunder. Such Security Deposit may be commingled with other funds of AGILITY and transferred out of state. AGILITY shall be responsible for the accrual and payment of interest thereon
in accordance with applicable law. Customer hereby waives the benefit of any provision of law requiring the Security Deposit to be held in escrow or
trust, and the Security Deposit shall be deemed to be the property of AGILITY. Customer further acknowledges that the Security Deposit is not to be construed as prepaid fees by Customer for any period of the Service Order.
b. Adjustments. AGILITY reserves the right to require a Security Deposit (if the requirement of a Security Deposit was initially waived by AGILITY) or additional security deposits for subsequent Service Orders if: (i) Customer has not made payments for existing Services pursuant to
the provisions of the MTCs; (ii) Customer adds new locations not set forth in the Agreement or any Exhibit thereto; or (iii) AGILITY determines in
its sole discretion that Customer’s creditworthiness is in doubt or becomes negative as reflected in Customer’s credit score or credit rating.
c. Reconnection. In addition, AGILITY may require an additional Security Deposit and/or a reconnection fee before Services are restored if the Services have been disconnected and/or suspended (or any Service Order has been terminated) by AGILITY due to Customer’s
nonpayment or other default under any applicable Service Order or these MTCs.
d. Remittance. For a Customer who renews a Service Order, AGILITY may apply the Security Deposit in full toward the first month(s) of the first Service Order renewal Term as a credit toward all new charges; provided that Customer is current on all invoices and has no suspensions for the Service Order renewal Term based upon Customer’s changes to the quantity of Services and/or Equipment. Except as otherwise provided in the MTCs, the Security Deposit, shall be repaid to Customer within thirty (30) days after the expiration of the Service Order Initial Term, and all extensions or renewals thereof, unless there are unpaid amounts,
including Early Termination Fees, owing by Customer to AGILITY. In such cases, the Security Deposit will be applied to any outstanding balance on
Customer’s final invoice.
4. SERVICE, RATES and PROMOTIONS
a. Services. AGILITY Services consist of any services offered by AGILITY, including retail or enterprise SIP trunking telephony, Voice over
Internet telephony, Hosted Voice services, Broadband data services, Hosting Services, Managed Network Services, or other services provided by AGILITY to Customer from time to time.
b. Rates. Initial rates for the Service plan are set forth on page 1 of Customer’s Service Order or in any separate pricing forms furnished to Customer. Except where otherwise required by applicable law or the provisions of these MTCs applicable to Term plans, AGILITY may revise the rates for Service from time to time, without prior notice, to reflect changes in regulatory-imposed fees, the cost to provide service, service charges
and tariffs or otherwise. AGILITY reserves the right to move Customer to a different Service or rate plan if usage or other criteria are not met for the
plan to which Customer has subscribed or in which Customer currently is enrolled.
c. Promotional Terms. Customer acknowledges that in the event the Services are purchased as part of a promotional offering by AGILITY,
the terms of the promotion shall be valid and binding throughout the entire Term and may also be subject to additional terms and conditions.
a. AGILITY Responsibilities. Installation of AGILITY’s Broadband services includes the following activities on a best efforts basis. AGILITY will: (i) connect the customer-supplied internal wiring (“Inside Wiring”) to the MPOE (Minimum Point of Entry); (ii) install a jack connected to the customer-supplied Inside Wiring at the AGILITY-supplied customer-premises equipment (“CPE”) location; (iii) connect and configure the AGILITY-supplied CPE; and (iv) verify that the installed circuit functions properly. If the Services include hosted voice services, AGILITY will use its best efforts to: (v) connect and configure the AGILITY-supplied CPE and managed switch, (vi) connect the customer-supplied Inside Wiring to the AGILITY-supplied CPE and Internet Protocol phones; (vii) verify inbound/outbound call placement; and (viii) validate 911 calls are configured and routed properly.
b. Customer Responsibilities. Customer is solely and strictly responsible for ensuring: (i) the installation location (“Service Location”) is
clean, dry, well-lit and equipped with the proper power source; (ii) the Service Location’s Inside Wiring is properly installed, in good condition and
accessible at the MPOE and/or the AGILITY-supplied CPE location; (iii) the Service Location’s Riser Cabling (defined below) is properly installed,
in good condition and (iv) the proper installation and configuration of any customer-supplied CPE.
c. Cabling Installation Services. Additional Cabling Installation Services may be required if the Service Location’s cabling does not support AGILITY’s ability to install or deliver the Services to the Customer. If requested by Customer and deemed necessary by AGILITY, limited
additional Inside Wiring may be installed by AGILITY in order to complete the installation of the Services. AGILITY will use its best efforts to
install additional Inside Wiring not to exceed: (i) 50 feet in length; (ii) fifteen minutes to install and; (iii) span across more than one (1) floor of the Service Location.
In the event that Cabling Installation is required that (i) exceeds 50 feet in length or 15 minutes to install (“Extensive Inside Wiring”), (ii) must be installed to vertically extend the connection upwards or downwards across more than one (1) floor in the same building (“Riser Cabling”), or (iii) is due to existing Inside Wiring that is damaged, moved or removed, Customer shall promptly (A) perform the appropriate Cabling Installation to AGILITY’s reasonable satisfaction so that AGILITY is able to install and deliver the Services to Customer, or (B) engage AGILITY to perform such
Cabling Installation. If the customer wishes for AGILITY to perform such Cabling Installation, the AGILITY Structured Cabling Services team will be engaged to perform such services for the Customer. Customer shall be responsible for all Cabling Installation charges provided by the AGILITY Structured Cabling Services team.
Extensive Inside Wiring Per Quote
Riser Cabling Per Quote
d. Special Construction. Additional facilities may be required by the LEC (Local Exchange Carrier) to complete certain installations when Customer’s location has insufficient copper facilities to support the extra loop needed for Customer’s broadband service (“Special
Construction”). In these situations, a quote will be provided by the LEC and/or AGILITY Structured Cabling Services team to complete the required work. AGILITY may contact Customer for prior approval of these charges before performing the Special Construction. Customer agrees it is responsible for payment of any and all Special Construction charges.
Special Construction Per Quote
e. Expedited Service. In limited circumstances, it may be possible to expedite a service installation (“Expedited Service Installation”) or service setup (“Expedited Service Setup”) in order to meet a specific Customer request. Expedited Service Installation includes professional installation at the Service Location. Expedited Service Setup is available for service configuration where professional installation at the
Service Location is not required. Expedited Service must be requested and confirmed by AGILITY’s management team prior to service order execution by Customer in order to confirm availability and applicable LEC charges. Charges for this installation will be assessed per the table below. Revised and effective:
Expedited Service Installation $250 per Service Location plus LEC charges per quote
Expedited Service Setup $75 per Service Location
6. SERVICES USAGE GUIDELINES
a. Purpose. AGILITY aims to ensure that customers do not utilize the Services in a manner which may hinder or prevent AGILITY from providing quality service to other customers. AGILITY reserves the right to monitor Customer’s use of the Services to ensure compliance with
these Services Usage Guidelines (the “Guidelines”). If AGILITY has reasonable suspicion that Customer may be in violation of these Guidelines,
AGILITY may take action which may result in any of the following:
(i) Suspension of Customer’s Services until such time the prohibited device or activity is confirmed removed or altered.
(ii) Modification of Customer’s Services products and/or pricing to alternate versions that would not be in violation of these Guidelines.
(iii) Complete or partial cancellation of Customer’s Services. Termination fees may apply.
b. Auto-dialing and Call Blasting. Auto-dialers, continuous or extensive call forwarding, continuous call session connectivity, fax broadcasting, fax blasting, or any other call blasting activities are not allowed with AGILITY Services unless written approval is provided by AGILITY prior to the deployment of such equipment.
c. Certified Voice Equipment. Customer acknowledges that only approved, AGILITY-certified voice equipment is allowed to be used with the Services, unless written approval is provided by AGILITY prior to the deployment of such equipment.
d. Customer-Provided Voice Equipment. Customer may use its own voice equipment (“Customer-Provided Equipment”) provided the make,
model, and firmware revision have been certified by AGILITY. Customer is responsible for any and all costs associated with upgrading/downgrading, configuration, deployment or servicing of the Customer-Provided Equipment. AGILITY will not provide service or support to any Customer-Provided Equipment under the Customer Monthly Service Plan. Work performed to any Customer-Provided Equipment is performed by the AGILITY IT Services team and is a billable service event to the Customer. The Customer shall be responsible for all charges for such services..
e. Customer-Provided Software. Customer may use third party software applications in conjunction with its Services under the following
(i) Any use of third party software applications by Customer is at its own risk.
(ii) Customers must uninstall any Third Party Software Applications if GILITY, in its sole discretion, believes the software is generating any issues or problems, either for the Customer or the AGILITY platform.
(iii) Software development is prohibited against the AGILITY production platform.
f. Non-Voice Communications Equipment. Various types of non-voice communications equipment, including, but not limited to, security systems that are set up to make automatic phone calls, fax machines, modems and medical monitoring devices, may not be compatible with the Services and may interfere with the successful use of the Services. AGILITY has not certified any equipment for use with such services and provides analog translation to such equipment on a best-efforts basis. Customer agrees to waive any and all claims against AGILITY for the lack of function of such equipment or the interference such equipment may cause. AGILITY reserves the right to request removal of such equipment at any time and Customer agrees to comply with such request.
g. Reasonable Usage Patterns. AGILITY will notify Customer if AGILITY determines, in its sole discretion, that Customer is exhibiting nonstandard usage patterns. Non-standard usage patterns include, but are not limited to, calling patterns where the Customer’s ratio of inbound or
outbound call minutes exceeds 80% of Customer’s aggregate minutes or where the Customer’s average aggregate minutes per seat or concurrent call
session exceed reasonable usage, as determined in AGILITY’s sole discretion. Aggregate minutes are calculated by adding all of Customer’s off-net inbound minutes plus off-net outbound minutes, excluding any metered or minute bundles, on a monthly basis. Reasonable average aggregate usage per seat is 1,500 minutes per month and reasonable average aggregate usage per concurrent call session is 2,500 minutes per month.
7. CUSTOMER RESPONSIBILITY; EXCLUSION OF WARRANTIES; LIMITATION of LIABILITY
a. Suspension of Service. AGILITY may discontinue the furnishing of any and/or all Service(s) to a Customer, without incurring any liability, immediately and without notice if AGILITY deems, in its sole discretion, that such action is necessary to prevent or to protect against fraud, tricks, tampering, schemes, false or invalid numbers, false credit devices, electronic devices, or any other fraudulent means or devices or to otherwise protect its personnel, agents, facilities or services or to protect against actual or potential adverse financial effect. Customer agrees that AGILITY, its shareholders, directors, officers, employees and agents shall not be liable for any loss or damage sustained by Customer, its interconnecting carriers, its customers or its end users, among other individuals and entities, due to any failure in or breakdown of the communication facilities associated with providing the Services, for any delay, interruption or degradation of the Services, whatsoever shall be the cause of duration thereof, or for any other cause or claim whatsoever. Customer shall remain solely responsible for any and all charges and damages arising out of any conduct described in this Section, and shall indemnify AGILITY, and hold and save AGILITY harmless, for and from any and all such charges and damages.
b. Equipment Responsibility. Customer acknowledges that AGILITY is not liable to Customer or to any distributors or agents who sell AGILITY Service, unless expressly approved by an officer of AGILITY in writing and contained in a document provided by AGILITY to Customer. Customer recognizes the complex nature of communications technology. AGILITY shall not be responsible for any hardware/software including, but not limited to, private branch exchange (“PBX”) and PBX programming, channel service unit (“CSU”), data service unit (“DSU”), channel bank, routers or any other CPE required for any service provided by AGILITY that was not specifically sold and installed by AGILITY.
c. Exclusion of Warranties. Except as specifically set forth herein or in any attachment or addendum, the Service and related software and/or equipment provided by AGILITY, if any, are provided on an “as is” and “as available” basis. AGILITY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT, SERVICES OR SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF: (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR
PURPOSE, (C) SUITABILITY, (D) USE, (E) NONINFRINGEMENT, (F) TITLE, (G) SERVICE BEING ERROR-FREE, VIRUS-FREE,
UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD-PARTY HACKERS OR DENIAL OF SERVICE
ATTACKS), AND (H) ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. AGILITY
DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF, AND CUSTOMER MAY NOT RELY ON
ANYONE MAKING SUCH STATEMENTS. AGILITY IS NOT THE MANUFACTURER OF EQUIPMENT PROVIDED TO CUSTOMER IN CONNECTION WITH THE USE OF THE SERVICES, AND NEITHER AGILITY NOR OR ANY AGILITY AFFILIATE SHALL
HAVE ANY DUTY TO DEFEND, INDEMNIFY OR HOLD CUSTOMER HARMLESS FROM AND AGAINST ANY OR ALL DAMAGES OR
COSTS INCURRED BY CUSTOMER ARISING FROM THE NFRINGEMENT OF PATENTS OR TRADEMARKS OR VIOLATION OF
COPYRIGHTS BY ANY OF THE PRODUCTS OR SERVICES.
d. Limitation of Liability. Under no circumstances shall AGILITY have any liability for: (a) any act or omission of any connecting carrier or any underlying carrier or local exchange company whose services are resold by AGILITY, or another third-party provider of connections, equipment, facilities or service to Customer or AGILITY; (b) an act or omission of Customer, its agents, servants, employees, invitees, licensees, or guests, or (c) any failure of equipment, facilities or connections provided by or to the Customer. Neither shall AGILITY have any liability for
mistakes, omissions, interruptions, errors, delays, defects in transmission or failure to transmit, when caused by acts of God, fire or other natural
disaster, war, riots, labor disturbances, cable cuts, government authorities or any other causes beyond AGILITY’s control. IN NO EVENT SHALL
AGILITY, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST REVENUE, PROFIT, CUSTOMERS, LOSS OF THE GOODS OR ANY
ASSOCIATED EQUIPMENT, LOSS OF FILES OR SOFTWARE DAMAGE, FAILURE OR ERRORS IN SIGNAL TRANSMISSION, COST OF
CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, CUSTOMER’S TIME,
INJURY TO PROPERTY OR ANY DAMAGES OR SUMS PAID BY CUSTOMER TO AGILITY OR THIRD PARTIES, EVEN IF THE
COMPANY OR ANY OF THE COMPANY AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
AGILITY SHALL ALSO NOT BE LIABLE FOR LOSS OF GOODWILL OR DATA ARISING FROM OR RELATED TO THE SERVICE,
INCLUDING ERRORS, MISTAKES, OMISSIONS, INTERRUPTIONS OR DELAYS BY AGILITY, ITS PROVIDERS, AGENTS,
SERVANTS OR EMPLOYEES IN THE COURSE OF ESTABLISHING, FURNISHING, REARRANGING, MOVING, BILLING, TERMINATING OR CHANGING REGULATED OR NON-REGULATED SERVICES OR FACILITIES AS CONTEMPLATED HEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER A CLAIM IS ASSERTED FOR BREACH OF WARRANTY OR ANY
OBLIGATION ARISING THEREFROM, AND WHETHER A CLAIM IS ASSERTED IN CONTRACT, TORT OR STRICT PRODUCT LIABILITY, IRRESPECTIVE OF WHETHER AGILITY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. UNDER NO CIRCUMSTANCES SHALL AGILITY’S LIABILITY TO CUSTOMER HEREUNDER EXCEED THE LESSER OF (1) CUSTOMER’S ACTUAL DAMAGES OR (2) THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER
FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS (THE “AFFECTED SERVICE”), CALCULATED FROM
COMMENCEMENT OF THE AFFECTED SERVICE TO THE DATE A CLAIM IS MADE. CUSTOMER HEREBY WAIVES ANY CLAIM
THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. CUSTOMER REPRESENTS AND WARRANTS THAT THIS IS A COMMERCIAL AND BUSINESS TRANSACTION AND NOT A CONSUMER TRANSACTION.
e. Service Level Agreement. TO THE EXTENT THAT SERVICE IS UNAVAILABLE, INTERRUPTED, DEGRADED, OR CUSTOMER OTHERWISE EXPERIENCES AN OUTAGE OR SERVICE INTERRUPTION, CUSTOMER’S SOLE AND EXCLUSIVE
REMEDY SHALL BE THE SERVICE CREDITS AS PROVIDED IN AGILITY’S SERVICE LEVEL AGREEMENT; (LOCATED AT
WWW.AGILITYPHONE.COM/SLA) WHICH IS INCORPORATED HEREIN. ANY AND ALL CLAIMS ARISING PURUSANT TO THE
SERVICE LEVEL AGREEMENT MUST BE MADE BY CUSTOMER WITHIN NINETY- (90) DAYS OF THE EVENT THAT GAVE RISE TO SUCH CLAIM, OTHERWISE CUSTOMER WILL BE DEEMED TO HAVE IRREVOCABLY WAIVED ITS RIGHT TO SAID CLAIM.
f. Customer’s Responsibility for Fraud. Customer shall be solely responsible for security over its account, trunks, network, facilities and equipment, and for all costs and procedures associated therewith, and will take all steps necessary to prevent and avoid fraud of any kind, including but not limited to subscription fraud, cloning or network fraud, and employee or third party theft. Under no circumstances shall Customer withhold payment due to AGILITY on the basis that fraudulent calls comprised a portion of its traffic volume.
a. Use. AGILITY-provided equipment or products (collectively, “Equipment”) shall only be used for its intended purpose. Customer shall not,
and shall not permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Equipment without the prior written consent of AGILITY. AGILITY may, in its sole discretion, ship the Equipment directly to Customer. Within three (3) days of its receipt of such Equipment, Customer must notify AGILITY of any damaged or missing items from Customer’s order. In order to facilitate configuration of the
Equipment and to ensure its compatibility with AGILITY’s network, AGILITY reserves the right to require Customer, as a condition to receiving Service, to use CPE supplied by AGILITY. Customer may, in AGILITY’s sole discretion, either purchase or rent the CPE from AGILITY, in accordance with this Section 8.
b. Rental Equipment. In the event AGILITY agrees to rent the CPE to Customer (as indicated on the Service Order) (“Rented CPE”), AGILITY shall retain title to the Rented CPE and Customer agrees to use reasonable care in maintaining the Rented CPE while in Customer’s possession. Customer agrees (which agreement shall survive the expiration or termination of its Service Order) to allow AGILITY full and complete access to remove the Rented CPE from Service Location. Upon the expiration or termination of the Services, Rented CPE shall be returned to
AGILITY by Customer (at Customer’s expense) in good condition, reasonable wear and tear accepted. If Customer fails to return the Rented CPE to
AGILITY within thirty (30) calendar days of termination of the Services, Customer shall be charged the then current-list price for the Rented
CPE. During the Service Term, if the Rented CPE should fail to perform due to failure of the hardware; where such failure is not the result of Customer’s negligence, AGILITY agrees to replace the Rented CPE to Customer at no additional cost to Customer. For purposes hereof, ‘negligence’ shall include but not be limited to improper use of the Rented CPE, exposure to liquid, or dropping or crushing the Rented CPE.
c. Purchased Equipment. If Customer purchases CPE from AGILITY (“Purchased CPE”), title to the Purchased CPE shall remain with
AGILITY until Customer has paid the full purchase price of such Purchased CPE as indicated on the Service Order (“Purchase Price”). During the
first twelve (12) months of the Service Term, should the Purchased CPE fail to perform due to failure of the hardware; where such failure is not the
result of Customer’s negligence (as defined above), AGILITY agrees to replace the Purchased CPE at no additional cost to Customer. Customer shall bear the cost of any and all loss or damage to the Purchased CPE until the Purchase Price is paid in full. The foregoing represents AGILITY’s only
obligation with respect to the Purchased CPE, which is otherwise provided subject to Section 7 hereof.
9. SERVICE MINIMUM
As certain considerations and discounts were extended based on the Service Term, as indicated on page 1 of Customer’s Service Order, Customer must maintain minimum service quantities such that the service MRC is not less than 75% of that initially contracted for.
a. Subject to subsection (c) below, in the event of Customer’s early termination of its Service Order prior to the expiration of any fixed Term, Customer shall pay AGILITY all charges for service provided through the effective date of such termination, plus the following fees (“Early Termination Fees”).
All Services 75% of the balance of Term’s MRC
It is agreed that AGILITY’s damages, if Service were terminated prior to the expiration of the Agreement Term, would be difficult or impossible to
ascertain. Accordingly, the terms of this Section 10 are intended as liquidated damages and not as a penalty in the event of early termination. Termination of Service shall not relieve Customer of its obligation to pay all fees for Service accrued and owing up to and including the date of termination or any other amount payable to AGILITY. Any and all notices submitted pursuant to this Section 10 shall be sent to the following
address: terminations@AGILITY.com. Notices not sent to the email address designated herein may not be processed by AGILITY, as determined in
its sole discretion.
b. In the event Customer should cancel its Agreement before its AGILITY Services are installed, Customer agrees to pay the following Order Cancellation Fees.
All Services – Within 3 Days of Order Placement No Charge
ADSL, IDSL, SDSL $100
Bonded T1, DS3 $500
Ethernet up to 10 Mbps $350
Ethernet greater than 10 Mbps $500
Voice Services 50% of Activation Fees
c. 30-Day Satisfaction Guarantee.
(i) Term. If Customer is not satisfied with the AGILITY Services for any reason after service installation, it may terminate the Agreement within the first thirty calendar (30) days of the Term by providing AGILITY with written notice of its intent to terminate (the Termination Notice”). The Termination Notice must be received by AGILITY on or before the thirtieth (30th) calendar day of the Term. Termination pursuant to this subsection (c) shall relieve Customer of any further liability or obligations pursuant to the Agreement. Customer must specify in the Termination Notice that it is terminating the Agreement pursuant to the
“30 Day Satisfaction Guarantee.” If Customer does not terminate the Agreement pursuant to this subsection (c), the Term shall continue and be governed by the provisions set forth in these MTCs.
(ii) Credits. Customer shall receive a credit for any paid MRCs up to the date of the Termination Notice as well as any one-time service activation fees paid by Customer. Customer’s credit shall be issued in the form of a check within thirty (30) days of the Termination Notice.
(iii) Equipment. All Equipment must be returned to AGILITY in satisfactory condition within thirty (30) calendar days of the
Termination Notice or Customer shall be billed for the full Equipment price.
(iv) Exceptions. Credits will not be issued for additional fees incurred during service installation, including Extensive Inside Wiring, Rising Cabling, billable technician dispatches, Special Construction Charges or site surveys.
(v) Applicability. Customer may not terminate broadband Services of 10Mb or greater pursuant to this subsection (c).
AGILITY may discontinue Service or cancel an application for service, without incurring any liability, for any of the following reasons: (i) nonpayment when due of any sum payable to AGILITY for service; (ii) violation of any law, rule or regulation of any governing authority having jurisdiction over the service; (iii) by order of a court or other governmental or quasi-governmental authority having such jurisdiction; (iv) in the event
service charges exceed the amount of any deposit which AGILITY may have required or any established credit limit; (e) if Customer provides false or misleading credit or other information; (v) if, in the sole discretion of AGILITY, Customer’s financial condition has deteriorated or if Customer is
involved in any bankruptcy or similar proceeding; (vi) in the event of any violation giving rise to a right of termination as set forth in AGILITY’s
applicable tariffs; (vii) fraudulent use of the Service; or (viii) any default under this Agreement including, but not limited to, violation of AGILITY’s
Acceptable Use Policy (“AUP”) (available on AGILITY’s website www.AGILITY.com/terms or from the Customer Service Department), which are incorporated by reference herein. This paragraph shall not operate to limit or waive any other rights AGILITY may have.
12. 911/E911 EMERGENCY SERVICES
a. Limitations of Service. By entering into this Agreement, Customer acknowledges, understands and agrees that AGILITY’s 911 Emergency
Services differ from traditional 911 services in the following ways:
(i) Availability. AGILITY 911 Emergency Service is not available in all locations and will only function with AGILITY provided equipment that AGILITY has registered for Customer’s use. 911 Emergency Service is restricted and will not function if made from software applications, such as those created for softphones, Outlook toolbars and third party applications.
(ii) Power Outage, Outages or Disruptions of Service. AGILITY’s 911 Emergency Service may not function in the event of equipment failure, power outages, broadband service outage or suspension/disconnection of the Service. AGILITY does not offer a “Lifeline” or back-up service where 911 would continue to operate when the Service is otherwise impaired.
(iii) Failure to Designate the Service Address. Customer’s correct physical service address must be registered at all times where AGILITY Services will be utilized. Otherwise, 911 communications may be misdirected to an incorrect local service provider and result in a dispatch to an incorrect service location.
(iv) Emergency Call Routing. AGILITY 911 Emergency Service calls may not always be routed to the same dispatch center used for traditional 911 services. The dispatcher may be located at the local Public Safety Answering Point or at back-up emergency call centers. In some situations, the dispatch center receiving the emergency call may not automatically receive Customer’s phone
number and service location address.
(vi) Possibility of Network Congestion and/or Reduced Answering Speed. AGILITY 911 Emergency Service calls are more likely to receive busy signals, experience unexpected wait times or take longer to answer than traditional 911 calls, especially during times of natural disasters or emergency events.
b. Customer Responsibilities. Customer acknowledges and assumes the following responsibilities to reduce the aforesaid limitations and to ensure the availability of AGILITY 911 Emergency Services:
(i) Inform all employees, guests and other third parties of the limitations of the Service.
(ii) Be prepared to provide your address and phone number to the 911 operator in the event that this information did not
(iii) Inform AGILITY of any service location changes or moves before they occur and of any temporary plans to utilize the Service at a location not registered with AGILITY to ensure the correct Emergency Service address is always registered.
(iv) Place AGILITY-provided 911 stickers near or on any device capable of placing a 911 call.
c. Limitation of Liability; Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF AGILITY
AND ITS LICENSORS, SERVICE PROVIDERS AND EQUIPMENT VENDORS IS DISCLAIMED WITH RESPECT TO CUSTOMER’S
INABILITY TO DIAL 911 OR OBTAIN ACCESS TO EMERGENCY SERVICE PERSONNEL THROUGH VOICE SERVICES THAT ARE
PROVIDED BY AGILITY. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THE LIMITATIONS OF THE AGILITY 911 EMERGENCY SERVICES, AND ITS RESPONSIBILITIES AND AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AGILITY, ITS AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO AGILITY IN CONNECTION WITH THE EMERGENCY 911 SERVICES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, LIABILITIES, PENALTIES, FINES, EXPENSES, COSTS, FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) OR DAMAGES (INDIVIDUALLY AND COLLECTIVELY, “CLAIMS”) ARISING IN CONNECTION WITH THE INABILITY OF CUSTOMER, CUSTOMER PARTIES OR ANY
THIRD PARTY TO BE ABLE TO DIAL, ACCESS OR RECEIVE 911 SERVICES THROUGH THE SERVICES.
Customer agrees to defend, indemnify and hold and save AGILITY, and its shareholders, directors, officers, employees, contractors, agents and affiliates (the “AGILITY Parties”), harmless from and against any Claims which relate to, or arise out of: (a) the negligence or misconduct of Customer or its directors, officers, employees, contractors, affiliates or agents (the “Customer Parties”); (b) Customer’s use of the Service; (c) any breach by
Customer of the terms of the Agreement, any Service Order or these MTCs or Customer’s breach of any warranty, representation or covenant in the Agreement, any Service Order or these MTCs; (d) any Claim by any employee or invitee of Customer; (e) any Claim by customers or end-users of Customer or any other third party relating to, or arising out of, Customer’s services or the Services, equipment or software; (f) Customer’s operations or services, including without limitation any content or software displayed, distributed or otherwise disseminated by Customer, its employees, or users of the Services; (g) any Claim that Customer\’s use of the Service including the registration and maintenance of Customer’s selected domain name(s), infringes on the patent, copyright, trademark or other intellectual property right of any third party; (h) any act, omission, fault, negligence or misconduct of Customer, any of the Customer Parties, or any persons on Customer’s premises other than the AGILITY Parties, including without limitation any malicious act or act in violation of any laws committed by Customer, its employees or users using the Services; (i) violation by Customer, its employees or authorized users of the AGILITY AUPs; or (j) failure of Customer to notify those persons on its business premises by application of stickers to telephones, general posted notices, or other writings or communications that, during any 911 call, the person calling 911 must affirmatively inform the 911 service of his or her physical location.
a. Choice of Law/Disputes. These MTCs as well as all Agreements shall be governed by and construed in accordance with the substantive and
procedural laws and practices of the State of Illinois, County of Menard without giving effect to principles of conflicts of law. Any action commenced hereunder, or relating to any relationship between the parties, shall be brought exclusively in a state or federal court situated in Menard County, Illinois. Customer shall pay all costs of investigation, enforcement and collection, including interest, court costs, fees and attorney’s fees.
Notwithstanding the cancellation or natural expiration of the Term of Customer’s Agreement, and to the fullest extent permitted by law, if Customer has accumulated unpaid charges, AGILITY may refuse any request for release or other transfer of Local and Toll-Free numbers to a third party, and may reject any request for change in Toll-Free service to another carrier, including a change request from a responsible organization, without liability to AGILITY, until such charges are paid in full to the date of termination of service. AGILITY reserves the right to re-assign any terminated Local and Toll-Free number(s).
b. Waiver of Trial by Jury. The Parties hereto hereby knowingly, irrevocably, voluntarily and intentionally waive any rights to a trial by jury in respect of any action, proceeding or counterclaim based on Customer’s Agreement or arising out of, under, or in connection with Customer’s Agreement or any document or instrument executed in connection with its Agreement, or any course of conduct, course of dealing, statements
(whether verbal or written) or action of any Party hereto. This provision is a material inducement for AGILITY and Customer entering into the subject transaction.
c. Waiver of Class Actions. Customer hereby agrees that any and all disputes or actions filed by Customer against AGILITY shall be brought by Customer in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. There shall be no right or authority for any disputes or actions to be filed on a class action basis or in a purported representative capacity on behalf of other parties similarly situated, and Customer hereby expressly, knowingly, irrevocably, voluntarily, unequivocally and intentionally waives any such right to file same.
d. Non-Waiver. No provision of these MTCs shall be deemed waived, amended or modified by AGILITY unless such waiver, amendment or modification is in writing, signed by an office of AGILITY.
e. Authority. Each party represents that it has the full right, power and authority to enter into the Agreement as well as these MTCs and to perform all of the obligations on its part contemplated herein.
f. Notices. Except where otherwise stated herein, any notice required or permitted to be given under Customer’s Agreement shall be in writing and shall be sent to the Customer at the mailing or e-mail address supplied on the Customer’s Account, and to AGILITY at PO BOX 115, ATHENS, ILLINOIS 62613 Attention: General Counsel. Either party may, at any time, notify the other of a change of address for notices, by giving written notice in accordance with this Paragraph.
g. Variances. These MTCs shall prevail notwithstanding any variance with the terms and conditions of any order submitted by Customer or the terms of any other Agreement between Customer and AGILITY.
h. Severability. If any provision of these MTCs is held by a court of competent jurisdiction to be contrary to law, the remaining provisions herein shall remain in full force and effect.
i. Assistance. If necessary, and if requested by Customer, AGILITY will provide commercially reasonable assistance to Customer in obtaining necessary facilities from the local telephone company through which Customer may use AGILITY service. Customer is responsible for such activity and is liable for any and all charges incurred therefore. Customer agrees to execute any additional documents necessary for the enforcement or operation of these MTCs.
j. Construction. The parties acknowledge that they have reviewed, and/or had the opportunity to review, the Agreement with counsel (if applicable), and
have had all of its terms explained to them to their full and complete understanding and satisfaction. They further acknowledge that this Agreement is the joint work product of the parties. Accordingly, in the event of ambiguities in this Agreement, no inferences shall be drawn against either party on the basis of authorship of this Agreement.
k. Headings. The headings in this Agreement are for convenience of reference and shall not affect its construction or interpretation.
15. NO ASSIGNMENT; ENTIRE AGREEMENT
Customer may not assign its Agreement or resell, sublicense or transfer any interest in the Service without AGILITY’s prior written consent, which may be withheld in its sole discretion. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective affiliates, successors and permitted assigns. The Agreements, any amendments or attachments, constitute the entire Agreement and understanding
between Customer and AGILITY as to the subject matter hereof, and any prior or contemporaneous oral or written understandings, representations, promises or Agreements, and any of those subsequent to the Agreement that do not properly amend it in accordance with the amendment provisions herein, are void and of no force and effect. Customer may amend its Agreement only by a writing signed by AGILITY. The Agreements may be supplemented or amended by AGILITY at any time and effective immediately upon notice to Customer. The AUP may be supplemented or amended
by AGILITY at any time and effective immediately upon publication on AGILITY’s website (www.AGILITYPHONE.com). Customer is expected to periodically review AGILITY’s website for updates to the AUP, and to review, understand and comply with all such terms, and is deemed to have done so upon notice being provided.
16. LETTER OF AGENCY (LOA)
Customer hereby appoints AGILITY to act as its agent in order to effectuate the collection of account information and/or carry out the change(s) authorized on its behalf. Customer hereby authorizes the change of its communications company(s) from that/those which it is currently using to AGILITY for the purpose of ordering and/or maintaining communications services, including, but not limited to, Local Services, Long Distance Services, Private Line Services, and Number Portability.
Customer proprietary network information (“CPNI”) means information about the quantity, technical configuration, type, destination, and amount of use of the communications services that AGILITY may provide to Customer, including without limitation certain information contained in the
invoices prepared by AGILITY for Customer. Under federal regulations, communications’ providers such as AGILITY have an obligation to protect
the confidentiality of CPNI. By executing an Agreement, Customer grants permission to AGILITY: (i) to use Customer’s CPNI to evaluate AGILITY’s existing Services and new opportunities to serve Customer better, and (ii) to use Customer’s CPNI to identify additional communications related services or products that Customer may desire that would complement the Services already provided by AGILITY to Customer. Customer further acknowledges that in no event shall AGILITY sell its customer lists or CPNI to outside third parties or vendors and by executing an Agreement. Customer acknowledges same.
AGILITY CONTACT INFORMATION:
Customer Service:Available 24 x 7 x 365
Billing Department:Available Mon – Fri 9am – 6pm (CST)
Service Department:Available 24 x 7 x 365
NOC:Available 24 x 7 x 365
Sales:Available Mon – Fri 8am – 5pm (CST)