Terms of Use

MiSWITCH COMMUNICATIONS, LLC

COMMUNICATION SERVICES SUBSCRIPTION AGREEMENT
Subscriber (as defined in the Signature Block below) hereby accepts the foregoing Quote for Unified Communications Solution (“Quote”) for MiSWITCH business products and services and agrees to this Communication Services Subscription Agreement (“Subscription Agreement”) with MISWITCH COMMUNICATIONS, LLC. (“MiSWITCH”) as of the Effective Date (as defined in the Signature Block).

SERVICE
Agreement Term.
Service (as defined below) is offered for a Two-Year term which shall begin on the date the MiSWITCH system is first installed at any of Subscriber’s locations (“Commencement Date”) and ends on the second anniversary of the date the MiSWITCH system is installed at Subscriber’s last location. This Subscription Agreement will automatically renew for successive one‐year terms unless cancelled in writing by Subscriber at least sixty (60) but not more than one hundred twenty (120) days prior to the end of the Term or any renewal Term.

MiSWITCH system Components and Installation.
MiSWITCH shall provide the Subscriber with the MiSWITCH system consisting of the components described in the MiSWITCH proposal for services. Professional installation of the MiSWITCH system Components listed in the MiSWITCH proposal for services shall be performed at Subscriber's locations by MiSWITCH or a third-party installer trained by MiSWITCH (“Installer”).

Rental Services
This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from MiSWITCH (collectively, the “Rental Services”). MiSWITCH charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of your recurring bill from MiSWITCH, you agree to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as your payments for MiSWITCH Office Services, as defined in your MiSWITCH Office Plan Purchase Agreement. MiSWITCH will pro-rate the Rental Fees for any equipment that is rented, for the initial period from the start of the rental period until the end of then-current billing period for the Office Services, and the start of the rental will begin on the date a Rental Device is recorded as delivered by a designated courier (the “Rental Start Date”).

The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Office Services billing period in which the end of such 30 day period occurs, (b) the termination of the MiSWITCH Office Plan Purchase Agreement. Notwithstanding the above, at any time within thirty (30) days after the Rental Start Date, you may terminate the Rental Services with respect to a Rental Device immediately upon written notice from you to MiSWITCH, without paying any Rental Fees for such Rental Device.

Upon any termination of the Rental Agreement or Rental Services, you agree to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with MiSWITCH’s written instructions and in accordance with the Return or Purchase Rights section of this Rental Agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If you do not return a Rental Device (subject to MiSWITCH’s inspection and acceptance of the returned Rental Device in its reasonable discretion) within thirty (30) following the termination of the Rental Services for such Rental Device, you will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current MiSWITCH list price shown on MiSWITCH’s web site, or (2) after such 12 month period, 80% of such list price, and you agree to pay the applicable purchase price.

If you wish to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Rental Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.

The Rental Fees for the Rental Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or MiSWITCH cost price, as determined by the tax law in the jurisdiction of purchase or rental.
Rental Devices Ownership; Damage and Loss

MiSWITCH is and will remain the owner of each Rental Device unless title is conveyed to you in writing following MiSWITCH’s confirmation to you of its receipt of your payment in full of the purchase price for the Rental Device. You will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines MiSWITCH’s ownership of each Rental Device. MiSWITCH may, without notifying you, assign MiSWITCH’s interest in any Rental Device, and in that event, MiSWITCH’s assignee will have all of MiSWITCH’s rights in the Rental Device under this Agreement, but none of MiSWITCH’s obligations. You agree not to assert against MiSWITCH’s assignee any claims, offsets, or defenses you may have against MiSWITCH. Upon MiSWITCH’s request, you will execute and deliver to MiSWITCH any documents or forms for protecting MiSWITCH’s ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code.

Upon receipt of each Rental Device, you will examine each Rental Device, and unless you notify MiSWITCH within five business days of your receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. In the event that any Rental Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify MiSWITCH in writing and pay MiSWITCH a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current MiSWITCH list price shown on MiSWITCH’s web site, or (2) after such 12 month period, 80% of such list price. This obligation does not apply to any damage to a Rental Device that is covered by the manufacturer’s warranty.

Rental Device Usage
You will ensure that: (a) each Rental Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by MiSWITCH, as may be updated by MiSWITCH or the manufacturer of the Rental Device from time to time; (b) each Rental Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Rental Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Rental Device may not be removed, defaced, or otherwise obstructed; and (e) each Rental Device will only be repaired subject to MiSWITCH’s express written authorization and in accordance with MiSWITCH’s instructions and requirements.

Purchases
You may purchase a Rental Device at any time following 12 months from the date you received the Rental Device. You agree to purchase the Rental Device for 80% of the Rental Device’s then-current MiSWITCH list price shown on MiSWITCH’s web.

Subscriber Responsibilities.
Subscriber shall supply space, network equipment, network wiring, electrical power, and environmental conditions suitable for, and compatible with, MiSWITCH’s Services (as defined below) at Subscriber’s locations.

If the Subscriber did not purchase primary Internet connection from MiSWITCH, Subscriber is required to provide its own broadband connection to the Internet of such sufficient quality and bandwidth to support the Services.

Subscriber must approve the written estimate before work can proceed in accordance with the estimate. MiSWITCH will not be liable for any delays associated with Subscriber approving costs for such work. If, after the installation of the MiSWITCH system, MiSWITCH or its Installer is required to provide personnel to assist in addressing concerns that are not MiSWITCH related (such as debugging issues with the Subscriber’s location, adding cable or resolving non-MiSWITCH network issues), this work will be done on an hourly basis at the then-prevailing rate charged by MiSWITCH, plus materials, travel and related costs.

Additional Installation Charges.
The Quote provides an estimate of installation costs based on available information. Subscriber may incur additional charges if Subscriber’s locations require work in addition to that contemplated as part of the Quote, such as additional network jacks, line extensions, cable drops or repair or replacement of existing system components. MiSWITCH or its Installer will provide a written estimate for such additional work.

Subscriber must approve the written estimate before work can proceed in accordance with the estimate. MiSWITCH will not be liable for any delays associated with Subscriber approving costs for such work. If, after the installation of the MiSWITCH system, MiSWITCH or its Installer is required to provide personnel to assist in addressing concerns that are not MiSWITCH related (such as debugging issues with the Subscriber’s location, adding cable or resolving non-MiSWITCH network issues), this work will be done on an hourly basis at the then-prevailing rate charged by MiSWITCH, plus materials, travel and related costs.

Monthly Products and Services Payment.
MiSWITCH will provide monthly recurring products and services which can include the MiSWITCH system Components, Unified Communications (“UC”) Seat, Voice and Applications (as defined below)(collectively, the “Services”). Basic monthly charges for the Services are described in the “Recurring Fees” table on the proposal.

Basic monthly charges are invoiced monthly in advance per location beginning on the date the MiSWITCH system is Enabled and Available for use at each of Subscriber’s locations. MiSWITCH will deliver monthly invoices in electronic format and requires payment by ACH transfer or by credit/debit card in order to avoid a monthly administrative charge. Payment by credit/debit card or ACH requires Subscriber to execute, deliver and maintain the attached MiSWITCH Payment Authorization Form. It is Subscriber’s responsibility to notify MiSWITCH of any changes to the information provided on the Payment Authorization Form. A new form may be requested by contacting [email protected]. If Subscriber desires to receive monthly invoices from MiSWITCH by traditional mail and/or pay by credit card, MiSWITCH charges a 3% administrative fee for these options. If elected, or if Subscriber has not provided or maintained valid automated payment information, the administrative fee will automatically be added to Subscriber’s monthly invoice.

Subscriber agrees to notify MiSWITCH in writing within thirty (30) days after receiving an invoice of any charges appearing on the invoices that are disputed by Subscriber. If Subscriber fails to timely notify MiSWITCH of disputed charges such dispute will be deemed waived.

Subscriber is required to pay all non-disputed amounts within thirty (30) days from receipt of the invoice. MiSWITCH reserves the right to charge a late fee for payments received after the due date equal to the lesser of the maximum interest rate permitted by law or 1½ percent per month (18% per year). MiSWITCH charges a $50.00 fee for each NSF check, ACH bounce back or credit card bounce back.

Unlimited Calling
Subscriber has subscribed to Unlimited Calling access for use with each MiSWITCH Unified Communications Seat for the Term of this Subscription Agreement as stated in section titled: Service Agreement”. Each instance of Unlimited Calling Seat provides the right for a single extension to make or receive an unlimited number of local, US, and Canada voice calls per month (subject to MiSWITCH’s “Reasonable and Fair Use” policy found in the Terms and Conditions). Usage charges (see “Monthly Usage,” below) shall apply if Subscriber is using more simultaneous call paths than subscribed to at a time.

REASONABLE BUSINESS USE
Customer agrees, represents, and warrants that it is purchasing the Services and the Equipment (if any) for its own internal use only, and shall not resell, transfer or charge for the Services or the Equipment without the advance express written permission of MiSWITCH.  MiSWITCH's Service Plans that offer unlimited minutes of PSTN calls ("Unlimited PSTN Plans"), unlimited faxing or unlimited Text Messages are for reasonable business use of Customer only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous or extensive chat, continuous connectivity, fax or Text Message broadcast or blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations (except with respect to Customer's use of subscribed to MiSWITCH Contact Center Services), junk or Text Message faxing, fax spamming, calling/faxing/Text Messaging any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage. Customer will not use the Services to send unsolicited commercial e-mail or Text Messages to recipients outside Customer's organization. Customer shall not transmit through the Services any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature. Customers further agree not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others, give rise to civil liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law.  Without limiting any other remedies hereunder, MiSWITCH reserves the right to immediately terminate or modify the Services of any Customer using Unlimited PSTN, fax or texting Service Plan if MiSWITCH determines, in its sole discretion, that Customer is not using such plan for Customer's reasonable business use.

Monthly Usage
Monthly usage charges may include, but are not limited to, the Subscriber’s incoming toll-free call usage in excess of the number of pre-bought toll-free minutes; Subscriber’s minutes of international calling; calling to, from and within Alaska, Puerto Rico and other US territories; Subscriber’s directory assistance calls; Subscriber’s EFax Personal usage; call center recording usage; domestic Long Distance usage in excess of the number of included and pre-bought domestic Long Distance minutes or minutes in excess of MiSWITCH’s Fair and Reasonable Use Policy.

Additions to Products and Services; Exchanges.
If Subscriber requests and receives additional hardware, software, licenses, and/or Services after the Effective Date which are not contemplated by this Subscription Agreement, such additions will be governed by this Subscription Agreement. Subscriber agrees to pay for such additions at MiSWITCH’s then-current rates and such charges shall appear on Subscriber’s next scheduled invoice with prorated charges for any partial periods. Subscriber’s payment of a modified invoice shall be deemed Subscriber’s acceptance of the amounts charged including any price modifications. Component exchanges within 30 days of installation may be allowed, at MiSWITCH’s discretion, less a 15% restocking fee, a $25 administrative fee, shipping costs and any additional installation costs.

Taxes and Fees.
State and local governments may assess taxes, surcharges, or fees, or all of these, on your use of our service. These charges may be a flat fee or a percentage of your MiSWITCH charges and may change without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for all applicable taxes, fees, or charges for your Order, use, or payment for our service or your device. These amounts are in addition to the payment for your service or devices. We will bill these charges to your selected payment method according to the terms in this agreement. If you are exempt from payment of any of these taxes, you must provide us with an original certificate that satisfies the legal requirements attesting to tax-exempt status.

Subscriber agrees to pay all applicable federal, state, local and jurisdictional taxes, fees, surcharges and other regulatory and cost recovery fees, mandated or non-mandated, and a 911 service fee (“Taxes and Fees”). Subscriber acknowledges that all Taxes and Fees are subject to change without notice during the Term of this Agreement.

Disclaimer of 911 Liability
We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We do not have any control over any local emergency response center. Therefore, we are not responsible for whether they answer calls using our 911 dialing service, how they answer these calls, or how they handle them. We rely on third parties to assist us in routing 911 dialing calls to local emergency response centers and to a national emergency calling center. We are neither liable nor responsible if the data used by a third party to route calls is incorrect or produces an erroneous result or results in the delay of the delivery of emergency services. Neither Vonage nor its officers or employees may be held liable for any claim, damage, or loss, fine, penalty, cost, and expense (including, without limitation, attorneys' fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, 911 Dialing, or your device.

Subscriber’s Responsibility to Terminate Services
Subscriber has the right to cancel this Subscription Agreement. To cancel, MiSWITCH must receive written notice from Subscriber within thirty (30) days of the Commencement Date. Subscriber’s locations must have the MiSWITCH system installed within six (6) months of the Effective Date. In the event of a cancellation, all components provided by MiSWITCH pursuant to the Subscriber Agreement must be promptly returned to MiSWITCH and all returned components must be in new or like new condition for Subscriber to receive a refund. Furthermore, Subscriber will be responsible for all Services and related usage until such Services are turned-down and all requested phone numbers are ported away.

Default.
MiSWITCH may immediately suspend or terminate the Services, this Subscription Agreement and without liability for such suspension or termination upon a breach of this Subscription Agreement or any of the Related Documents by Subscriber. However, if Subscriber fails to timely pay undisputed amounts when and as due, MiSWITCH will not terminate the Service for non-payment unless Subscriber fails to pay the past due undisputed amount within seven (7) days of notification by MiSWITCH.

Termination Charges.
Cancellation, termination or default by Subscriber of this Subscription Agreement prior to the end of the Term will result in the immediate acceleration of all charges to be due under this Subscription Agreement (the “Contract Charges”) including recurring Service and a one-time disconnect fee of $150 per location, from the date of cancellation through the end of the existing Term. Subscriber is also responsible for all prior outstanding balances (including any accrued interest charges), actual usage and associated Taxes and Fees on all amounts due or coming due (the “Existing Charges” and together with the Contract Charges, the “Termination Charges”). Subscriber hereby authorizes MiSWITCH to charge/debit Subscriber’s authorized payment account for all Termination Charges.

Component Replacement.
MiSWITCH provides replacement of defective or inoperable Covered Components. If an identical Covered Component is no longer available, MiSWITCH will provide equipment of a functional equivalent of equal or greater value. Replacement orders will be shipped when the order is received by MiSWITCH before 3:00 P.M. eastern time. Replacement orders received after 3:00 P.M. will be processed on MiSWITCH’s next Business Day. If a Covered Component was not originally provided by MiSWITCH (Subscriber provided) MiSWITCH may, at its sole option, replace it with a different brand or model that is functionally equivalent and is of equal or greater value.

Replacement of Covered Components is unconditional and includes acts of God, in which case MiSWITCH shall be entitled to any insurance proceeds covering the lost or damaged Covered Components. The only exception to this coverage is intentional acts (such as theft) or cases of clear abuse or misuse. If a Covered Component is inoperable, Subscriber should contact MiSWITCH for immediate replacement from its stock (if available) or to authorize replacement as stated above.

There is no additional charge to Subscriber for replacement of inoperable Covered Components, except for on‐site visit charges, at option of Subscriber. The replacement component will be shipped preconfigured and plug‐and‐go ready. A Covered Component that is defective must be promptly returned to MiSWITCH by Subscriber. All return shipping charges are paid by Subscriber. Failure to return inoperable Covered Components within two (2) weeks of receipt of a replacement will result Subscriber being charged for the replacement component.

LIMITATION ON DAMAGES.
MISWITCH SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES RELATING TO OR ARISING FROM THE SERVICES OR MISWITCH SYSTEM, THE INABILITY TO CONNECT TO 911 EMERGENCY RESPONDERS OR OTHERWISE RELATING TO MISWITCH’S OBLIGATIONS UNDER THIS SUBSCRIPTION AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY INCLUDES, WITHOUT LIMITATION, THE COST OF PROCURING SUBSTITUTE OR REPLACEMENT SERVICES, EQUIPMENT OR COMPONENTS, DAMAGES BASED ON LOSS OF REVENUES, PROFITS, OR BUSINESS OPPORTUNITIES AND SHALL APPLY WHETHER OR NOT MISWITCH HAD OR SHOULD HAVE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED AND REGARDLESS OF THE LEGAL BASIS, INCLUDING TORT, USED FOR SUCH CLAIM.

LIMITATION ON LIABILITY.
UNDER NO CIRCUMSTANCES SHALL THE TOTAL LIABILITY OF MISWITCH TO SUBSCRIBER FOR ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE MISWITCH SYSTEM EXCEED, IN THE AGGREGATE, THE TOTAL MONTHLY SERVICE FEES MISWITCH HAS RECEIVED FROM SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE FIRST ACT, OMMISSION OR FAILURE THAT GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF SUBSCRIBER’S REMEDIES UNDER THIS SUBSCRIPTION AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

BY EXECUTING THIS SUBSCRIPTION AGREEMENT, SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY ALL OF THE TERMS OF THE SUBSCRIBER AGREEMENT, INCLUDING THE RELATED DOCUMENTS INCORPORATED BY REFERENCE.

By: [_____________________________________________________________________________________]

“SUBSCRIBER”: [_____________________________________________________________________________________]
(Insert Subscriber’s full LEGAL name including “Inc.”, “Corp.,” “Company,” “LLC,” etc.)

Printed Name: [_________________________________________]

Title: [____________________________________________________]

Today’s Date: [___________________________________], 2019 the “Effective Date”