Services and equipment sale agreement
|BETWEEN:||VoxSun Telecom Inc.,
|AND:||The Customer (hereinafter referred to as the “Customer”)|
WHEREAS VoxSun Telecom Inc. is a company specialized in the field of communications, more particularly, in hosted IP telephony and internet Services;
WHEREAS the Customer wishes to enlist the Service Provider for hosted IP telephony and corporate internet services;
WHEREAS the parties wish to clarify the terms and conditions of their agreement (herein the “Agreement”) through the following statements;
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1.1 Implicit waiver. The fact that a party has not insisted on the full execution of any of the commitments stipulated herein or that it has not exercised any of the rights provided herein should not be considered as a future waiver of such rights or such execution of commitments. Unless otherwise stipulated in the Agreement, a waiver by one party of any of the rights granted to it herein shall only take effect once established in writing and then, shall only apply to the rights and circumstances therein expressly stated.
1.2 Effect. The Parties hereby recognize that the Agreement constitutes a full, complete and faithful reproduction of the agreement intervened between the Parties and, they formally revoke any precedent agreement between themselves. The Parties hereby renounce to the use of any discussions and/or negotiations prior to the signature of this Agreement.
1.3 Severability. If any term, covenant, condition or provision of this Agreement is or becomes to any extent illegal, invalid or unenforceable, such term, covenant, condition or provision shall be restricted in order to render it legal, valid and enforceable or shall be severed from the Agreement so as not to affect the legality, validity or enforceability of the remainder of this Agreement.
1.4 Applicable law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein.
1.5 Preamble and schedule. The preamble and the schedules contained herein are an integral part of the Agreement.
1.6 Headings and References. The headings and references of the articles and of the paragraphs have been added for convenience purposes only and are not subject to interpretation.
1.7 Singular, plural, masculine and feminine. As the context requires, the singular applies to the plural and the masculine applies to the feminine.
1.8 Amendments. No modification of or amendment to this Agreement shall be valid or binding unless set forth in writing and duly executed by both Parties. Any modifications or amendments shall take effect upon the date of signature by all parties.
1.9 Currency. Unless other stipulated, all amounts mentioned in the present agreement are in Canadian currency.
1.10 Precedents to the agreement. In the event of a disagreement, the Parties convene, with respect to the terms and conditions herein and to those contained in all other related documents to the Term of Use hereinafter described, that the terms and conditions stipulated in the Agreement shall take precedence.
2.1 The Customer hereby retains the Service Provider for the purpose of providing the Customer with the services set forth in Schedule “A” (herein the “Services”) and the Service Provider hereby agrees to provide the Services according to the terms and conditions set out in this Agreement.
2.2 The Service Provider, at its sole discretion, reserves its right to delegate and/or to subcontract all or part of the execution of the Services. The Parties hereby acknowledge that the Service Provider shall make the necessary efforts to advise the Customer of same and that under any such circumstances, the Service Provider shall remain solely responsible for the Services rendered pursuant to this Agreement.
3.1 The Agreement, as well as the pricing provided therein shall have a term of one (1) month commencing on the date of the validation of the customer’s order (herein the “Term”).
3.2 As long as the Customer has not, during the entire Term, been in breach of any of its obligation set forth herein, and so long as the Customer is not in breach at the time of renewal, the Agreement shall be automatically renewed under the same terms and conditions for an additional period of three (3) years, save and except, for the monetary provisions which shall be subject to price adjustments then in effect with the Service Provider for its corporate customers in the province of Quebec. The Customer who does not wish to renew the Agreement must advise the Service Provider within ninety (30) days of the date of termination as stipulated in article 3.1 hereinabove.
4.1 In consideration of the Services and the Equipment provided, the Customer undertakes to pay the Service Provider a total monthly amount pursuant to the monthly quotation provided by the Service Provider (hereinafter the “Service Fees”), which Service Fees shall be allocated among to the Services and Equipment, according to the modalities further detailed in the pro forma invoices annexed herein as Schedule A.
4.2 In addition to the Service Fees, the Customer undertakes to pay (i) all fees related to the modification and/or reactivation of the service package, as well as the administration fees charged by the Service Provider and (ii) all fees and expenses pertaining to the Equipment that is not otherwise guaranteed, either during the Term as well as during the renewal of the Term, pursuant to the list of then current prices of the Service Provider for all corporate customers in the province of Quebec.
4.3 Should the Customer require services and equipment not otherwise covered by the Services and Equipment provided in Schedule A, the Customer undertakes to pay the prices for such services and equipment, which prices shall the then current prices applicable to all corporate clients in the province of Quebec.
4.4 Any balance of payment owed after the due date shall bear interest at a rate of two percent (2%) per month, compounded monthly, or twenty-four percent (24%) per annum, the whole, as of the due date.
4.5 The Customer undertakes to pay the Service Provider, in addition to the amounts provided for in Sections 4.1 and 4.2, hereinabove, all applicable taxes, including tax on goods and services. Upon execution of these presents, the Service Provider shall thus provide the Client with its GST and QST numbers. The fees stipulated in Sections 4.1 and 4.2 as well as all applicable taxes pursuant to Section 4.5 shall be paid to the Service Provider on a monthly basis, upon receipt by the Customer of an invoice describing the Services and Equipment the Service Provider provided during the previous month. The Service Provider reserves its right to implement a system for pre-authorized interact payment and the Customer agrees to cooperate with the Service Provider for the implementation of such a system.
4.6 The Customer acknowledges and agrees that the pricing related to the Services provided is based on a volume pricing formula and is contingent on the duration of the Term. The Customer therefore explicitly acknowledges and agrees that in the event that the Customer cancels any of the Services during the course of the Term, it shall nevertheless be held to the payment of such Services and according to the terms provided fort in Section 4.1 of these presents, without regard for the Service cancelled.
- OBLIGATIONS OF SERVICE PROVIDER
5.1 The Service Provider shall be solely responsible for the control and management of the Services provided. The Service Provider shall decide which methods shall be utilised as well as operations, facts and acts which shall be performed or omitted in the rendering of the Services.
5.2 The Service Provider shall obtain and maintain, during the entire Term of the Agreement, valid permits, licenses and other authorizations required in connection with the fulfillment of its obligations in accordance with all applicable laws and regulations.
5.3 The Service Provider undertakes to provide a qualified workforce for the proper performance of the Services and Equipment installation.
5.4 During the duration of the Term, the Service Provider undertakes to provide the Services in accordance with the standard levels established in Schedule B and further detailed in the following links:
The Service Provider undertakes to make available to the Customer, either directly or by way of updates on the Service Provider’s website, copies of all manuals and / or directives, and any updates thereof, relating to the use of the Services and Equipment. The Client acknowledges that the manuals, directives and any subsequent updates are the sole property of the Service Provider.
5.5 The Service Provider undertakes to provide the Customer with punctual technical support regarding the Services and Equipment.
6 9-1-1 Service
6.1 Calling 9-1-1: When you make an emergency call to 9-1-1, VoxSun Telecom inc. E911 service will attempt to route your 9-1-1 call to a public safety call centre (Public Safety Answering Point, or PSAP) which corresponds to the address on your account. Due to the versatility of the VoxSun Telecom inc. E911 service, it is possible that your 9-1-1 call is routed elsewhere than with the regular 9-1-1 service. For example, your call could be transferred to a third party call centre which specializes in processing emergency calls. This call centre differs from the Public Safety Answering Point, or PSAP) which usually responds to regular 9-1-1 calls, and which already has your address in its file. Consequently, it is possible that the call centre will ask you for your name, address, telephone number – particularly if your address is outdated or simply non-existent.
6.2 Transmission of information: The E911 service provided by VoxSun Telecom inc. automatically transmits the name, address and telephone number in your file to an agent of the public safety call centre (Public Safety Answering Point, or PSAP) or to an emergency service operator. However, for technical reasons, it is possible that the operator taking your call can not receive your name, phone number or physical location. For this reason, when placing an emergency 9-1-1 call, you must immediately inform the operator of your whereabouts and location (or location of the emergency taking place, if different.) If you are unable to speak, it is possible that the operator can not locate you if your information is outdated.
6.3 Validity of information: You are responsible with providing and keeping up to date all valid contact information (including name, address and phone number) for your account. If you do not correctly identify your whereabouts and present location, or if the information you have entered has recently changed or has not been updated, this could lead to problems routing your call to emergency services upon calling 9-1-1.
Clients must verify the validity of the address transferred to the 9-1-1 emergency call centre. This can be done by doing a test verification on your telephone by calling 9-3-3.
The account holder is responsible at all times and in all circumstances for the information provided to the E911 emergency service. VoxSun does not apply any service charges for a 9-1-1 emergency call, when it has been provisioned for the E911 emergency service. ONLY CALL 9-1-1 IN CASE OF AN EMERGENCY.
6.4 Informing other users:
You are responsible and agree to inform all users of the conditions for the E911 VoxSun Telecom inc. service, and calls placed to 9-1-1 as mentioned above.
6.5 Limitations: We disclaim any responsibility or liability if third party data used to route calls is incorrect or gives a wrong result. Neither VoxSun Telecom inc., nor its affiliates, partners, executives, administrators or employees can be held responsible for any claim, loss or damage. You waive any claim or cause of action arising from or related to the provided 9-1-1 service. You must absolve VoxSun and indemnify its executives, administrators, employees, affiliates, agents, partners and all other service providers who provide you with service in connection with the VoxSun service from all claims, losses, damages, fines, penalties, costs and expenses (including and not limited to legal fees and expenses) by, or on behalf of, you or any third party, for any failure of service, including the 9-1-1 service and wrongly routed 9-1-1 calls, or the inability of any user of the service to be able to use the 9-1-1 service or access emergency service personnel.
7.1 In addition to the warranties provided for by the manufacturer, the Service Provider guarantees that the Equipment will be exempt of all manufacturing defects or of material defects for a period of one (1) year for telephones and for a period of thirty (30) days for unopened router boxes, switches and headsets from the date of receipt and installation of such equipment by the Customer (herein the “Warranty Term”). During the Warranty Term, the Service Provider could, at its entire discretion, repair or replace the defected Equipment, without charge for parts or labour.
7.2 Following the expiration date of the Warranty Term, the Customer shall contact Equipment’s manufacturer directly and follow the manufacturer’s procedures regarding repair or replacement of such Equipment.
7.3 The following warranty shall not apply in the event that: (i) the Equipment has been altered, modified or repaired by a third party unauthorized by the Service Provider, (ii) the defects are the result of misuse, moisture or water damage, accident, abuse, negligence or misappropriation of the Equipment; (iii) in cases of dents, nicks and/or scratches to the surface of the Equipment.
- OBLIGATIONS OF THE CUSTOMER
8.2 The Customer undertakes to provide the Service Provider with access rights as well as with all relevant information required for completion, installation and maintenance of the Services and Equipment.
8.3 The Customer undertakes not to use or permit the use of the Services and/or Equipment for purposes other than those required in the course of its regular corporate activities.
8.4 The Customer undertakes to use the Services and Equipment in accordance with all applicable laws and regulations. Without limiting the foregoing, the Customer undertakes not to utilize the Services and Equipment in a manner which is abusive, defamatory, wrongful, fraudulent, which constitutes harassment, an invasion of privacy and / or which pertains to similar such conduct.
8.8 The Customer acknowledges that all the identification information, including but not limited to, the Customer’s account number with the Service Provider, the PIN, the e-mail address, the IP address or the Webpage address, as well as the access code (herein the “Credentials“) are the sole property of the Service Provider, who reserves his rights to modify or withdraw them at any time by way of a prior thirty-day notice to that effect. Only the telephone number remains the sole property of the Customer.
8.9 The Customer undertakes to keep up-to-date all the Credentials or any other information related to his account with the Service Provider.
8.10 The Customer undertakes to ensure that all individuals authorized by himself to make use of the Services and Equipment (herein the “Authorized third party“) shall be bound by the obligations established in article 7; in any event, the Service Provider shall not be held liable for damages, direct or otherwise, resulting from the use of the Services or Equipment by the Customer or the Authorized third party, regardless of the use and in accordance with the provisions set out in article 8 herein.
- LIMITATION OF LIABILITY
9.1 The Service Provider shall not be liable for circumstances that may influence the quality of the Services and Equipment, including but not limited to, the interruption of power, the fluctuations and interruptions of the internet, the functionality of the data services and Wi-Fi of the Customer, as well as any issues regarding the traffic on the internet or on the Customer’s network. As such, the Customer shall solely assume any losses, damages or prejudices caused by or related to, directly or otherwise, such circumstances.
9.2 The Service Provider shall not be liable for any losses or damages caused by or related to, directly or otherwise, delays, failure to provide Services or Equipment, interruption or deterioration of quality including but not limited to, those caused by one of the following reasons:
9.2.1 an act or omission on the part of the carrier, service provider, distributor or intermediary third;
9.2.2 a malfunction of the Equipment or the installation
9.2.3 an alteration or upgrade of the Equipment, the network or the installation
9.2.4 as a result from force majeure
9.2.5 a shortage of equipment or of installation
9.2.6 a relocation of the equipment or of the installation
9.3 The Customer agrees and undertakes to indemnify and hold harmless the Service Provider of all claims, proceedings, damages, liabilities or expenses of any nature whatsoever regarding personal or property damage arising, directly or otherwise, from the use by the Customer of the Services and Equipment, other than any claims, damages, liability or expenses resulting from the negligence or fault of the Service Provider.
10.1 The Parties hereby agree that the provisions set forth in Section 9 hereof are fair and reasonable and that in the event of termination of the Agreement pursuant to such provisions, the Customer shall not have any recourse or right of action of any nature whatsoever available to him as a result thereof. Without limiting the generality of the foregoing, the Service Provider expressly waives the benefits of Articles 2125 and 2129 of the Civil Code of Quebec in the event of the termination of the present Agreement.
10.2 The Service Provider reserves its right to suspend, interrupt or terminate the Services by providing a prior thirty (30) day written notice insofar as the Customer violates any of the obligations established in Sections 7.1, 7.3 and 7.4 and the Service Provider shall not be held liable for any losses, damages or prejudices suffered by the Customer due to the suspension, interruption or termination of Services.
10.3 The Customer may unilaterally terminate this Agreement if the Service Provider fails to comply with any of the terms, conditions or material obligations assigned to it under these presents, the whole, provided that the Services Provider does not correct such default within fifteen (15) days of the date of receipt of the Customer’s notice informing the Supplier of the said defect. In the latter case, the Customer shall be held to the payment of all Services provided for under this Agreement, until the effective date of termination.
10.4 Upon termination of the Services, the Customer shall promptly remit to the Service Provider all Equipment and documents which he may have in his possession and which belong to the Service Provider, and shall take all necessary measures to abandon his use of the trademarks, Credentials and Services. The Customer shall have no recourse against the Service Provider in relation to any damage, inconvenience or loss which could have been caused directly or otherwise by the termination of this Agreement.
10.5 If the termination is the result of the Customer’s failure to respect any of the provisions set forth herein, the Service Provider may claim from the Client a penalty equal to three (12) months of Service Fees. In case of cancellation prior to twelve (12) months of service, a fee of $55 (Fifty-five dollars) per device will be billed to the customer to cover the discount granted during the purchase of the equipment, system, installation and process to unlock the devices of the network of VoxSun Telecom inc.
10.6 The parties waive therefore the implementation of Articles 2125 and 2129 of the C.C.Q. and agree to the following. If this Agreement is terminated before the expiry of the initial fixed term or any renewal period applicable (the “Termination Date”), the client agrees to pay immediately to VoxSun Telecom inc., at the request of the latter, the total of these costs and other related costs that the company would have earned under the terms of the present agreement between the date of termination and the end of the initial fixed term or any renewal period applicable (the “costs of termination”). The CLIENT also agrees that the termination fees represent an estimate of the damages suffered by the VoxSun Telecom inc., that they are deemed to be reimbursable damages and not a penalty, and that they do not have the effect or limit other reimbursements available to the VoxSun Telecom inc.
- RELATIONSHIP BETWEEN THE PARTIES
11.1 Each party shall perform the services provided hereunder as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the Parties. The Agreement shall bind the parties to the extent of the provisions herein.
12.1 The parties hereto acknowledge that they have requested and are satisfied that this Agreement and all related documents be drawn up in the English language. Les parties aux présentes reconnaissent avoir requis que la présente entente et les documents qui y sont reliés soient rédigés en anglais.
IN WITNESS WHEREOF the Parties hereto have executed this Service Agreement in the City of Montreal, Province of Québec, as of the date of the customer’s order.
SCHEDULE A – SERVICES AND EQUIPMENT
SCHEDULE B – SERVICE LEVEL STANDARDS
VoxSun Telecom Inc. is committed to providing reliable and high quality business-grade IP telephony services. This document outlines targeted service availability levels and obligations of VoxSun to maintain those levels as described below.
- Definitions and Scope
Level 1 support – support provided by VoxSun agents or resellers to the end user
Level 2 support – support provided by VoxSun staff to an end user, agent or reseller of VoxSun.
Business hours: Monday to Friday: 8:00 AM to 5:30 PM EST
After hours: All hours not within business hours coverage
This service level agreement covers services provided directly by VoxSun; It is limited to the equipment, software and network infrastructure that VoxSun has direct control of; Services provided by third parties in relation to IP telephony (ex: Internet connection, end user equipment, etc) are covered by the SLA of the respective third parties.
- Reporting faults
End users of VoxSun can lodge faults directly to our support team.
End users of VoxSun agents or resellers should first attempt to contact their agent or reseller for initial problem resolution. If such contact is not possible or does not lead to fault resolution, a Level 2 support request can be lodged. VoxSun agents/resellers may be responsible for the support costs when problems are caused due to incomplete or inappropriate initial training provided to the end user.
Faults can be reported in four ways:
- By sending an email to: firstname.lastname@example.org
- By opening a support ticket via the support portal: http://www.voxsun.com/support
- By calling VoxSun at 1 877 986-9786
- By chatting with a support representative online via the website
- Target Response Time
VoxSun will acknowledge your report of a fault within 2 hours of a fault being reported during business hours.
For faults lodged after hours, target response time will be 4 to 8 hours.
VoxSun will provide you with an indication of the nature of the fault and estimated time to repair the service.
- Target Repair Time
Repair time is the time taken to restore telephony services to its technical standards from the time lodged fault has been acknowledged.
Targeted repair time (business hours): 4 hours
Targeted repair time (after hours): 8 hours
- Scheduled service outages
Scheduled service outages may be required for equipment service and maintenance operations. They can also originate from 3rd party carriers who are providing services to VoxSun.
Such outages will be scheduled well outside normal business hours. VoxSun will provide at least 1 business day notification of any planned service interruptions to all its end users and agents/resellers.
VoxSun will notify all affected end users and agents/resellers via email. It is the responsibility of the end user or agent/reseller to keep their email address registered and up to date with VoxSun.
In the event of emergency service interruption, VoxSun reserves the right to undertake a service interruption without notice. In such cases VoxSun will use its best efforts to notify the end users and agents/resellers prior to any service interruption.
- Service uptime
Service uptime is calculated as the percentage of time the IP telephony service is available to the End User during the course of a year.
- Service uptime is calculated for the VoxSun infrastructure only.
- VoxSun’s infrastructure does not include end user hardware or internet connections.
Target Service Availability: 99.99%
- Service Level Agreement Terms & Conditions
VoxSun will use its best efforts to meet the service levels described.
Above service availability is provided using facilities that are in direct control of VoxSun.
Your continued use of services provided by VoxSun shall be deemed to demonstrate acceptance of the terms and conditions of this SLA.