Introduction. Cbeyond LLC®("Cbeyond") is delighted to provide you the BeyondVoice™ and other CBeyond services and enhancements ordered on the first several pages of this Service Order Contract (the "Order Terms"). The word "Contract" includes and incorporates the Order Terms, all of the Terms and Conditions of this contract, and any Cbeyond Service Addendums that you may sign at any time. As used in this Contract, the words "we", "our" and "us" refer to Cbeyond and the words "you," and "your" refer to the entity that has signed this Contract with us. The word "Services" includes and incorporates the BeyondVoice™ Communications, BeyondOffice™ and BeyondMobile™ communications packages, enhancements and other business services ordered on the Order Terms and any additional services you may order or obtain from Cbeyond at any time that are not expressly governed by another agreement you sign with us. The following Terms and Conditions govern all aspects of your purchase, including use and termination of all Services, as defined in this section. Please review carefully the Order Terms and confirm the Services ordered on the Order Terms. These Terms and Conditions are subject to Early Termination Charges and other fees.
Services and Installation; Installation Commitment for BeyondVoice™ Services. We will provide to you the Services identified on the Order Terms for the "Service Period" and "Monthly Fee" and "Service Address" as defined in the Order Terms. For BeyondMobile™ Service, the Service Address will be recorded as your Primary Place of Use. You are responsible for the "Install Fee" and "Setup Fee" as defined in the Order Terms for each applicable Service. We will make the BeyondVoice™ Services available to you at the Service Address within 40 business days from the date you sign this Contract so long as we have not been delayed as described below. If Cbeyond is solely responsible for any delays in BeyondVoice™ Service availability beyond that 40-business day period, we will credit any Install Fee or Setup Fee previously paid for that Service. To receive installation credit, first you must request the credit in writing through CbeyondOnline™ at www.cbeyondonline.net or email to customercare@cbeyond.net within 30 days of the date of your first invoice. No credit will be issued, however, if we were delayed because of: (i) your delay in providing needed telco/local loop facilities or connections; or (ii) your failure to make the Service Address available to us within one (1) business day of your signing this Contract; or (iii) your faulty or incomplete facilities or equipment; or (iv) your request for delay, failure to promptly respond to our requests or timely supply any requested or necessary information; or (v) your negligence or omissions; or (vi) your failure to meet Contract approval terms; or (vii) any special installation circumstances we identified to you at the time of sale; or (viii) events or circumstances beyond our control, such as "Events of Force Majeure" (defined in Section 14 below); or (ix) inability to acquire and maintain commercially reasonable transport and other facilities; or (x) any delay pursuant to federal or state action. Further, no installation credit will be payable if your Services require special set-up or installation at your Service Address, whether or not identified at the time of sale. Should special set-up or installation be required, we may terminate this Contract or cancel any Services without any obligation or liability to you.
Equipment.
To provide our BeyondVoice™ or BeyondOffice™ Services, we must install equipment at your Service Address, which remains our sole property at all times and shall not be considered customer-premises equipment. You agree to comply with all instructions and requirements regarding the use and/or care of our equipment, and to take reasonable measures to protect our equipment at all times. You will provide a secure, air-conditioned space to house the equipment and sufficient electricity (with certified earth ground) to operate the equipment. You agree to pay us the replacement value of any lost, stolen, damaged or unreturned equipment. We will replace any of our equipment that does not perform as specified, at no charge to you, unless we determine, in our sole discretion, that you are directly or indirectly responsible for Cbeyond equipment failure.
To provide our BeyondMobile™ Service, you must purchase mobile handsets ("Handsets") from us. Your purchase also may include related software and other products ("Mobile Related Products") in order to operate your Handsets properly. Handsets and Mobile Related Products may be covered under a limited warranty of their manufacturer that Cbeyond will extend to you without charge to the extent we can do so under our agreements with those manufacturers. If and when available, you may also elect to purchase an extended warranty for the Handsets and Mobile Related Products, at the then current cost for the selected warranty. Because these warranties for your Handset and Mobile Related Products are provided by third parties, we cannot and do not commit or warrant as to the performance of those Handsets or Mobile Related Products or that any of them will, if need be, be replaced or repaired as you desire. In our sole discretion, we may change or modify your Handsets and Mobile Related Products remotely and without notice to you, including changes or modifications to any software or programming. Among other things, this may affect or delete any data or information stored on your Handsets or Mobile Related Products, including the configuration of your Handsets or Mobile Related Products. Cbeyond is not responsible for any monetary loss, or adverse effects of such changes or modifications.
You should also know that the installation, operation, maintenance, repair or removal of any software, program, or other hardware related to the Cbeyond Services, including the Mobile Related Products (together with the Mobile Related Products, the "Services Related Products") on your computer(s), network(s) or other hardware may result in service outage, loss or damage to that equipment or any data, information or files on your equipment. You agree to be solely responsible for all data and software back up and to otherwise protect your computer and network data, information and files. You assume all responsibility for impacts, loss or damage to your computer or network hardware, data, information, files, peripherals, Handsets, or Services Related Products associated with installing, operating or removing any Services Related Products. Any warranty covering your computer, network or other equipment may become void when you open that computer or equipment to install any Services Related Products, whether or not you elect to install and run any of those Services Related Products. We do not commit or warrant that your installation or use of any Services Related Products will permit you to access, operate, or use any Service (including any BeyondMobile™ Service).
f any Handset is stolen or misplaced, you must report the incident to us immediately. Failure to report the theft of your Handset may result in your being liable for all charges and calls placed using your Handset from the time the Handset was stolen or misplaced until we are able to suspend your BeyondMobile™ Service. Upon proper notice, we will suspend your BeyondMobile™ Service (up to maximum of 30 days) to permit you to replace the stolen or misplaced Handset.
Network Availability Commitment for BeyondVoice™ and BeyondOffice™ Services.
We will use commercially reasonable efforts to make our Cbeyond IP "Network" (defined below) available to you at all times, subject to certain limitations described in this Contract (the "Network Availability Commitment"). For purposes of this Network Availability Commitment, the Cbeyond IP Network ("Network") means the integrated access device, local access loop, aggregation router, connectivity to the core network, and core network components up to the handoff to either the Internet peering point (for Internet packets) or the handoff to local, long distance or other voice Services provider for phone service traffic.
A Network outage occurs when there is total "Loss of Service" (defined below) for more than 60 consecutive minutes per occurrence. "Loss of Service" means that Cbeyond is unable to transmit IP packets on your behalf, such that you are unable to communicate with or access any other Internet Service Providers via the IP transmission protocol or unable to communicate with or access any other telecommunications providers via the Public Switched Telephone Network, as a result of the failure of Cbeyond facilities, equipment, or personnel used to provide the BeyondVoice™ or BeyondOffice™ Services. A Loss of Service does not include any loss of or inability to use your BeyondMobile™ Services.
The Network Availability Commitment in this Section 4 does not cover or apply to: (a) BeyondMobile ™ voice or data Services or equipment; or (b) Services activation or any Loss of Service caused by our maintenance of the system or Network; or (c) problems or issues relating to your equipment at the Service Address, including, but not limited to your Local Area Network, your phone equipment (including cables, PBX and associated cards), routine maintenance events, outages or disruptions caused by you either directly or indirectly, interconnections to or from and connectivity within other Local Exchange Carriers' networks (for example, calls to certain numbers or area codes), subsequent voice carriers' networks, interconnections to or from and connectivity within other Internet Service Provider networks, degraded or slow Services, and Force Majeure events. Cbeyond reserves the right to change or modify the terms or conditions of the Network Availability Commitment at any time by notice to you.
You are eligible for a full day's credit of 1/30th of the BeyondVoice™ or Beyond Office™ Communications Package recurring Monthly Fees (excluding any fees for additional Services) (the "Daily Credit") for each full 60 minutes that you experience a covered Network outage for that Service after you have reported it to our technical support (tech.support@cbeyond.net or 1-866-424-5100) ("Technical Support") as further described in Section 5; however, you may receive: (a) a maximum of 5 Daily Credits for covered Network outages in any 24-hour period starting from when you reported it to us; and (b) no more than 30 Daily Credits for covered Network outages in an calendar month. You are eligible to receive daily credit only as to the BeyondVoice™ or BeyondOffice™ Service for which you experienced a covered Network outage.
Credit Limits and Reporting Procedures.
To be eligible for the Network Availability Commitment, you first must notify our Technical Support immediately when you experience a Network outage or Loss of Service. Our Technical Support staff will investigate the reported outage and assign a trouble ticket number. Once assigned, you will be able to view the ticket number and ticket status information on CbeyondOnline at: www.cbeyondonline.net.
For purposes of determining the duration of a Network outage, a Network outage begins when you notify Technical Support and ends when Cbeyond's Technical Support confirms that Services have been re-established. You must request a credit at CbeyondOnline at www.cbeyondonline.net or by email to customercare@cbeyond.net within 7 days of the end of the calendar month in which the Network outage occurred. Credits do not include any applicable taxes or other governmental charges described in Section 6.
Your exclusive remedy or recovery for any Loss of Service or Network outages under the Network Availability Commitment or this Contract, or other damages arising out of or related to the unavailability of the Services, shall not exceed the amount of the credit described in Sections 4.4 and this Section 5, or, if applicable, your right to terminate the the BeyondVoice™ or BeyondOffice™ Service for which you experienced a covered Network outage as described in Section 8.3 below. All Network Availability Commitment credit requests are subject to Cbeyond's review and verification. You must be current on all payments (i.e. no balance older than 30 days) in order to receive credit under the Network Availability Commitment. Credits will appear within two (2)-billing cycles after credit approval. No credits under the Network Availability Commitment are available for your BeyondMobile™ Services.
Charges; Payments and Late Payment Fees and Costs.
our Monthly Fee and other charges begin on the earlier of: (a) when the Services are available to you; or (b) 30 days after our circuit has been delivered to your Service Address (whether or not your Services have been activated). Each Install Fee and Setup Fee for BeyondVoice™ or BeyondOffice™ Services is due upon completion of installation. Activation Fees for BeyondMobile™ Services are due for each Handset when that Handset has been programmed to send or receive mobile calls or data under your account. Even if someone other than you uses or shares your Service Address or the Cbeyond Services, you are responsible for all Monthly Fees and other charges invoiced for the Service Address and Services. Cbeyond is not obligated to invoice or provide Services to anyone other than you.
Each month, we will send an electronic invoice that will include all recurring, fixed Monthly Fees and charges billed one month in advance. YOU AGREE TO PAY THE TOTAL AMOUNT OF EACH INVOICE BY THE INVOICE DUE DATE SHOWN ON THAT INVOICE. To dispute the amount or accuracy of any invoice, you must notify Cbeyond in writing no later than the due date of that invoice detailing the disputed charges. Cbeyond will not issue credits for any charges that are not disputed in writing by the due date of the first invoice containing the disputed charges. You must pay any charge or amount that you do not properly dispute by the due date of the first invoice for those charges, without exception. If, after investigation, Cbeyond determines that a refund is due, we will credit the amount of the incorrect items on a subsequent invoice. Upon receipt of Notice from Cbeyond that the disputed charges are correct, all past due amounts must be paid, in addition to any late payment charges described in Section 6.4
For any BeyondMobile™ Service, your connectivity charges may vary depending on the calling plan selected, time, location, network area, number dialed and services used. Most mobile calls and text messages will result in airtime or usage charges. Additional charges will also apply upon your use or activation of additional features, multiple simultaneous calls for certain services (including call-waiting, call-forwarding, or 3-way calling), and for excessive, illegal or improper mobile data usage (as more fully described in our Acceptable Use Policy identified in Section 19 below). Any mobile calling plans that you select are part of this Contract. If you use your Handset outside the rate area as set forth in your calling plan, or use another company's mobile network for any reason, you will be responsible for any extra charges, including long distance, toll, and roaming charges. Airtime and other measured usage charges are billed in full-minute or such other increments as we determine to use from time to time, and we may round up any such usage charges to the next minute in billing those increments.
All payments must be in U.S. dollars. If you do not pay all charges when due under this Contract, a late payment fee will be assessed on the unpaid amounts until paid at the lower of: (a) 1 ½ % (one and one half percent) interest per month on the unpaid amounts until paid; or (b) the maximum rate allowed by law. You are also responsible for all other costs and legal fees incurred in collecting all unpaid amounts, unless otherwise ordered by the court in any action to collect those unpaid amounts. Cbeyond reserves the right to assess a $25 fee for any check returned for insufficient funds or not paid when presented for payment.
Cbeyond takes into consideration your satisfactory credit standing, timely payment of all charges under this Contract, and general payment record when providing the Services under this Contract. You agree that we may obtain credit reports and other information about you from credit reporting agencies and other sources at any time during, or in anticipation of, this Contract. You agree to provide a deposit as a guarantee of payments under this Contract or to increase the amount of any prior deposit should we find your credit standing, financial circumstances or payment history unsatisfactory at any time or if your account incurs excessive usage charges. The amount of the deposit will be in our sole discretion. Cbeyond reserves the right to apply a deposit amount to any past due charges under this Contract, with or without notice to you. You also agree to re-deposit the amount so applied, promptly at our request. We may terminate your Services without notice to you as described in Section 8.5 below.
In addition to the charges for your Cbeyond Services, you are responsible for all federal, state and local sales, use and excise taxes and any new or increased fees, assessments, taxes or other charges for the Services, including any universal service fund charges that may apply. You are responsible for collect call, mobile usage and any other charges that may be billed to you after your Service end date. You are also responsible for any charges from third parties that arise when you use your phone number as a billing mechanism for third-party services (such as 900 or other information charges). Should you request any third-party services, you agree that we may release your name and billing information to that third party so that it can bill you directly for those services.
Your Responsibilities. In addition to your other responsibilities under this Contract, you agree that you and anyone using the Services will: (i) upon request, take all actions necessary in order to install and activate the Services; (ii) provide adequate facilities to house and operate our BeyondVoice™ or BeyondOffice™ equipment; (iii) not resell the Services to any third party; (iv) comply with Cbeyond's Acceptable Use Policy described in Section 19 below; (v) comply with the "Things You Need to Know" and "Things You Need to Do" forms that you will acknowledge receiving upon signing of this Contract; (vi) comply with all federal, state, and local laws, rules, regulations and tariffs that apply to the Services or this Contract; (vii) be solely responsible to establish and maintain security measures (including, without limitation, codes, passwords or other features) necessary to restrict access to your computers, servers or other equipment through the Services; (viii) be solely responsible for all fraudulent, unauthorized, illegal or improper use of the Services by persons accessing those Services through your facilities, equipment or Service Address; and (ix) authorize and identify to us in writing at least one individual who is authorized to represent you on any aspect of the Services and your account (including all requests for moves, additions, deletions or changes to the Services). You warrant and represent that a significant amount of your local exchange traffic at the Service Address will occur through our Services for the entire term of this Contract. You agree that you will notify us immediately of any Loss of Service or other problems with any of the Services.
Term and Termination.
This Contract is effective upon signing by both parties and will continue in effect for the Service Period ("Initial Term") specified on the Order Terms. At the end of the Initial Term, this Contract will renew automatically for additional periods ("Renewal Terms") of one year each until either party gives written notice to terminate this Contract not less than 30 days before the end of the Initial Term or any Renewal Term. At the end of the initial Service Period, the BeyondOffice™ and BeyondVoice™ Services will renew automatically for additional periods ("Renewal Terms") of one year each and the BeyondMobile™ Services will renew on a month-to-month basis. In the case of any renewal, you will be responsible to pay the charges and terms in effect on the day before renewal, plus then applicable fees, taxes and other charges as described in Section 6.6.
The initial Service Period for the BeyondOffice™ and BeyondMobile™ Services must be at least 24 months. You may purchase the BeyondOffice™ Services (intended to permit your key personnel to conduct your business from home using the Services) and the BeyondMobile™ mobile voice and data Services so long as (a) there are at least 24 months remaining on the Initial Term of this Contract; or (b) you agree to extend the Initial or Renewal Term of this Contract to at least 24 months. Any change in the calling plan or features for the BeyondMobile™ Services at any time may also require you to extend the term of the BeyondMobile™ Services and this Contract. If and when this Contract or any BeyondVoice™ package offering ends or terminates, all BeyondOffice™ and BeyondMobile™ Services will also immediately terminate. If this Contract or your BeyondVoice™, BeyondOffice™ or BeyondMobile™ Services end before the completion or expiration of the Initial Term or Renewal Term of this Contract or those specific Services, "Early Termination Charges" will apply (as defined in Section 9).
You may terminate BeyondVoice™ or BeyondOffice™ Services (without liability for Early Termination Charges) if you experience a Loss of Service (as defined in Section 4.2 above) for that particular Service of more than 8 consecutive hours on two occasions or more in any calendar month and you notify us of each Loss of Service (of any duration) or any other problem with that Service immediately after that Loss of Service or problem first occurs (in each instance). You may also terminate this Contract if we fail to comply with any other Cbeyond obligation under this Contract for 30 consecutive days after receiving written notice from you. In either case, you may terminate the affected BeyondVoice™ or BeyondOffice™ Service only if your account is current before termination (i.e. no balance due more than 30 days) and you and your equipment (including Handsets and Services Related Products) did not contribute to the Loss of Service or to our failure to comply with this Contract, either directly or indirectly. You may not cancel this Contract for any Loss of Service except as permitted in this Section 8.3 concerning only the BeyondVoice™ and BeyondOffice™ Services. You may not cancel this Contract due to our system or network or other maintenance, either directly or indirectly. You must pay all charges due for each Service received until that Service is disconnected and for all charges that may be billed to you after the Service end date.
You may, however, terminate your BeyondMobile™ Services at any time (with liability for Early Termination Charges) by properly notifying us as required under our BeyondMobile™ Cancellation Policy posted on the Internet at www.cbeyond.net. Cbeyond reserves the right to change the Cancellation Policy at any time without notice to you and any changes to that Policy will be effective upon posting on Cbeyond's Website. Prior to termination of the BeyondMobile™ Services, you may be able to transfer or transport your then current mobile number to your new mobile service provider. If you request your new mobile service provider to transport a number from us and that new mobile provider requests us to do so, we will treat that request from your new provider as notice from you to immediately terminate the BeyondMobile™ Service for that mobile number upon successful transfer of that number. After any mobile number has been transferred or transported to your new provider successfully, you will not be able to use the BeyondMobile™ Services for that mobile number. You remain liable to pay all BeyondMobile™ Service charges through the service end date or, if later, when your mobile number has been successfully transferred or transported to your new carrier. Early Termination Charges apply upon any termination of the BeyondMobile™ Services or number transport before the scheduled end date of the initial Service Period (of 24 months) or of any Renewal Term. Upon cancellation of your BeyondMobile™ Services, your email service will end and all files for your email and other data files will be deleted from our network servers.
Cbeyond may terminate this Contract or suspend all or any Services if: (a) you fail take any action that we have requested in order for Cbeyond to install or activate the Services; (b) you fail to pay any amount owing to us when due, and fail to pay all past due amounts within 10 days after notice from us; (c) you fail to comply with our Acceptable Use Policy described in Section 19 below; (d) you fail to provide a new or increased deposit when requested; (e) you fail to replenish any deposit as requested; (f) you fail to perform or comply with any other obligation under this Contract, and do not perform or comply with that obligation within 30 days after notice from us; (g) you are involved in or are the subject of any change-in-control, including any sale of your stock or assets, reorganization or merger; (h) you, or anyone using any of the Services, use or operate any Services in a manner that could, in our sole determination, result in harm to us, our Network, our mobile supplier's network, our reputation, or other customers; or (i) you, or anyone using any of the Services, use or operate any Services in a manner that, in our sole determination, is or could violate our Acceptable Use Policy described in Section 19 below or applicable law or the intended business use of that Service; or (j) we determine at any time (in our sole discretion) that your payment record, ability to make timely payments or creditworthiness has become unsatisfactory (even if you have provided or replenished any requested deposits). If we elect to terminate this Contract or any Services, you must pay Early Termination Charges as described in Section 9 below. If we elect to suspend any Services, you must pay all resumption and other charges described in the following Section 8.6.
If we elect to suspend Services under any circumstances pursuant to this Contract, then to resume those Services, you must first pay all past due and other applicable charges, including the late payment fees and costs described in Section 6.4 above, and a resumption fee of $40. Before we resume your Services, we may also request satisfactory assurances from you on your future ability to pay for Services timely, even if you have paid the required resumption fee and other amounts. Those assurances may include a new or increased deposit to guaranty payment for future Services, among other things. If you fail to provide satisfactory assurances (in our sole discretion) or you fail to promptly make all required payments to resume your Services, then you will be considered to have terminated this Contract. At such time, you must pay Early Termination Charges (as described in Section 9 below), in addition to all other amounts that you owe under this Contract.
Cbeyond reserves the right to apply any deposit to any amounts owing under this Contract (including, without limitation, Early Termination Charges), and will return the remainder of any deposit to you at the end of the term of this Contract. You will receive interest on the amount of the returned deposit if required by applicable law. You must immediately make all Cbeyond equipment and property available to us or pay us the replacement value of all equipment and other property that you do not make immediately available to us, promptly upon receipt of invoice. You must also pay all costs that we incur in retrieving or attempting to retrieve our equipment and property, promptly upon receipt of invoice. Promptly upon termination of this Contract, you must return all Confidential Information and other Cbeyond information to us. Upon our termination of this Contract for any reason, you will forfeit any right to obtain a refund or credit of any amount paid previously or owing to us under this Contract, except for any credit owing to you under the Network Availability Commitment. Sections 1, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 20 and 21 will survive the termination of this Contract.
Early Termination Charges. Except for your proper termination of this Contract under Section 8.3 above, in every other instance in which this Contract terminates before the end of the applicable Initial Term or Renewal Term, you are responsible to pay an early termination charge ("Early Termination Charge") as liquidated damages and a reasonable approximation of our loss from early termination. The amount of the Early Termination Charge will be calculated as follows:
If, after both parties have signed the Contract, termination occurs before we install our equipment or activate the Services, you shall be liable for $1,000;
If termination occurs during the Initial Term of this Contract, you shall be liable for: (a) all outstanding nonrecurring fees plus (b) 100% of the Monthly Fees for each month, if any, remaining in the first year of the Initial Term, plus, if applicable, (c) 75% of the Monthly Fees for each month, if any, remaining in the second year of the Initial Term, plus, if applicable, (d) 50% of the Monthly Fees for each month, if any, remaining in the third year of the Initial Term;
If termination occurs after the Initial Term of this Contract, you shall be liable for: (a) all outstanding nonrecurring fees plus (b) 50% of the Monthly Fees for each month remaining in the applicable term, up to one year;
If termination also occurs as to any BeyondOffice™ Services, you shall be liable for an additional amount equal to the lesser of: (a) $500; or (b) $50 for each month remaining in the Initial Term or any Renewal Term of this Contract as described in Section 8.2; and
If termination also occurs as to any BeyondMobile™ Services, you shall be liable for an additional amount equal to the cancellation charge for your mobile plan then in effect.
Disclaimer of Warranties. CBEYOND IS PROVIDING THE SERVICES, EQUIPMENT, HANDSETS, AND SERVICES RELATED PRODUCTS (INCLUDING MOBILE RELATED PRODUCTS) TO YOU ON AN "AS IS" BASIS WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. CBEYOND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AMONG OTHERS. YOU ARE SOLELY RESPONSIBLE TO SELECT, USE AND DETERMINE THE SUITABILITY OF CBEYOND SERVICES, HANDSETS, AND SERVICES RELATED PRODUCTS (INCLUDING MOBILE RELATED PRODUCTS), AND CBEYOND WILL HAVE NO LIABILITY FOR THAT SELECTION, USE OR SUITABILITY. CBEYOND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CBEYOND DOES NOT REPRESENT THAT THE SERVICES, HANDSETS OR SERVICES RELATED PRODUCTS (INCLUDING MOBILE RELATED PRODUCTS) WILL MEET YOUR REQUIREMENTS OR PREVENT UNAUTHORIZED ACCESS TO YOUR COMPUTERS, NETWORK, SERVERS AND OTHER EQUIPMENT OR TO ANY DATA, INFORMATION OR FILES ON ANY OF THEM.
Disclaimer of Emergency 9-1-1 services. IF YOUR BeyondVoice™ OR BeyondOffice™ SERVICES INCLUDE SIP-CONNECT SERVICE, YOU ARE ADVISED THAT EMERGENCY 9-1-1 SERVICE WILL NOT FUNCTION OR BE AVAILABLE TO YOU WITH THE LOSS OF ELECTRICAL POWER OR IF THE BROADBAND CONNECTION IS NOT OPERATIONAL. EMERGENCY 9-1-1 SERVICE WILL NOT BE AVAILABLE AT ANY REMOTE LOCATION IF INTERNAL USERS ARE ALLOWED TO USE THEIR VoIP (VOICE over INTERNET)-BASED PHONES REMOTELY. YOUR SIGNATURE BELOW TO THIS CONTRACT WILL BE YOUR ACKNOWLEDGMENT THAT CBEYOND HAS ADVISED YOU OF THESE LIMITATIONS AND THAT YOU ACCEPT THE SERVICES WITH THESE LIMITATIONS. CBEYOND WILL ALSO PROVIDE LABELS TO YOU THAT ALERT USERS TO THE LIMITATIONS IN THIS PARAGRAPH 11. THE FEDERAL COMMUNICATIONS COMMISSION RECOMMENDS THAT YOU PLACE THESE LABELS ON OR NEAR THE TELEPHONE AND OTHER EQUIPMENT ASSOCIATED WITH YOUR BeyondVoice™ OR BeyondOffice™ SERVICE WITH SIP-CONNECT SERVICE.
BeyondMobile™ DOES NOT INTERACT WITH 9-1-1 AND OTHER EMERGENCY SERVICES IN THE SAME MANNER AS LANDLINE TELEPHONE SERVICES. DEPENDING ON YOUR LOCATION, THE TYPE OF HANDSETS AND OTHER EQUIPMENT YOU USE, THE TYPE OF EQUIPMENT USED BY THE PUBLIC SAFETY ACCESS POINT OR OTHER APPLICABLE EMERGENCY SERVICES PROVIDER, AND THE CIRCUMSTANCES AND CONDITIONS OF A PARTICULAR CALL, YOU MAY NOT BE CONNECTED OR YOUR PHONE NUMBER AND/OR LOCATION MAY NOT BE IDENTIFIABLE TO EMERGENCY SERVICE PROVIDERS. EMERGENCY 9-1-1 SERVICE THAT IS COMPATIBLE WITH THE FCC TECHNICAL REQUIREMENTS IS, NONETHELESS, NOT AVAILABLE IN ALL AREAS, AND EVEN IN THOSE AREAS WHERE IT IS AVAILABLE, IT IS NOT ENTIRELY RELIABLE. MOREOVER, IF YOUR HANDSETS OR EQUIPMENT ARE NOT GPS-ENABLED, EMERGENCEY SERVICES PERSONNEL MAY HAVE MUCH LESS PRECISE LOCATION INFORMATION. THE INFORMATION AVAILABLE TO EMERGENCY SERVICE PROVIDERS MAY ALSO BE LIMITED IF YOUR NUMBER OR NUMBERS ARE IN THE PROCESS OF BEING PORTED. BY YOUR SIGNATURE BELOW TO THIS CONTRACT, YOU ACKNOWLEDGE THAT EMERGENCY 9-1-1 SERVICE IS NOT AVAILABLE IN ALL AREAS, IS NOT COMPLETELY RELIABLE AND IS FURTHER LIMITED WHEN USING NON-GPS ENABLED HANDSETS OR EQUIPMENT OR DURING THE NUMBER PORTING PROCESS.
Your Sole Remedy against Cbeyond; Cbeyond Liability Limitations.
You agree that your sole remedy against Cbeyond for our failure to comply with this Contract will be to obtain the credit(s) provided in Sections 2 and 4 above or, if applicable, to terminate the affected BeyondVoice™ or BeyondOffice™ Service as described in Section 8.3. In order to terminate this Contract or affected Service, you must first give proper written notice to Cbeyond, be current on all payments (i.e. no balance older than 30 days), and pay for all Services through the date we discontinue them.
Cbeyond is not liable for any damages, including indirect, incidental, consequential, punitive or special damages, relating to loss of data, profit, revenue or business, or loss, damage or destruction of any property, whether you, your assignee or any other transferee suffer that loss or damage and whether or not Cbeyond is informed in advance of the possibility of such loss or damage. Cbeyond is not liable for the content, accuracy or quality of information transmitted through its equipment, facilities or Services, or through the Handsets or Services Related Products (including Mobile Related Products) and you agree to assume all risk of transmitting, receiving or using any such content or information.
Cbeyond is not liable for any injuries, death, or loss to any person or for damage, loss or destruction of any property of any person as a result of Cbeyond's act or omission in developing, adopting, implementing, maintaining, or operating any Emergency 9-1-1 or similar system or in identifying the telephone number, name, address, location or any other information on anyone accessing or trying to use or access the Emergency 9-1-1 or similar system. Cbeyond is not liable for errors or omissions in any information about you in any published directory. You agree to be solely responsible for ensuring the accuracy of any information about you in any published directory.
Cbeyond's sole liability to you for any claims, losses or damages caused by the Services or equipment or otherwise under this Contract are limited as described in this Section 12. You agree that those limitations are reasonable. You also acknowledge that without those limitations of liability, your Monthly Fee and other charges fees under this Contract would be substantially higher. You further agree that the limitations on Cbeyond's liability in this Section 12 will apply in any action or proceeding against Cbeyond, whether based in contract, tort (including negligence or strict liability) or under any statute, law, rule or otherwise.
Your Liability for Cbeyond loss and damage. To the extent you are the cause of any loss, damages, or liabilities to Cbeyond, you agree to reimburse, compensate and pay Cbeyond for any losses, claims, damages, liabilities, or penalties that Cbeyond or any of our officers, directors, agents, successors or assigns may incur from your purchase or use of the Services and our equipment, except to the extent that any loss, damages or liabilities are caused by Cbeyond's gross negligence or willful misconduct.
Force Majeure. We will not be in violation of this Contract or otherwise liable for any delay, failure to perform or equipment or property damage, loss, destruction or malfunction, or any consequence thereof, caused by anything beyond our reasonable control, including, without limitation, fire; earthquake; flood; weather; acts of God; labor disputes; utility curtailments; power failures; cable cuts; failure caused by telecommunications or other Internet provider(s); Handsets or other Services Related Products (including Mobile Related Products); worms, Trojan horses, viruses or other destructive code or software; explosions; civil disturbances; terrorism; vandalism; governmental actions; or shortages of equipment or supplies (collectively, "Events of Force Majeure").
Confidentiality. "Confidential Information" is valuable confidential or proprietary information, in any form, of or about us, or our Services, customers or contractors that is not generally known by, or readily available to, the public. You may use Confidential Information solely for your internal purposes, and will only disclose such information internally on a need-to-know basis. You will use reasonable best efforts to protect Confidential Information from unauthorized use or disclosure. We may seek equitable relief (and any other remedies) to enforce this Section 15. For Confidential Information that is a "trade secret" (as defined by applicable law), your obligations under this Section 15 will continue for the longer of: (i) 3 years after termination of this Contract; or (ii) until such information is no longer a trade secret under applicable law. For all other Confidential Information, your obligations under this Section 15 will continue during the term of this Contract and for 3 years after termination of this Contract. Our use of your information is governed by applicable law and our privacy policy posted on the Internet at www.cbeyond.net.
Publicity. Neither party will use the other's name, logo, product names or trade or service marks, or refer to the other directly or indirectly in any advertising, sales presentation, news release, release to any professional or trade publication or for any other purpose without the other's prior written approval.
Maintenance. We may perform maintenance that may affect the availability or functionality of all or part of the Services at any time. Any impact on the Services as a result of maintenance will not be deemed our breach of this Contract or the Network Availability Commitment and will not entitle you to any credit, refund or right to terminate this Contract or any affected Service.
Relocation of Services. If you desire to transfer your Service Location for any Services to a different location, you must request that move in writing to us at least 6 weeks in advance. If your new location is within our serving area, then you and Cbeyond must enter into a new contract with a term of no less than the Initial Term. That new contract may include additional or different installation, recurring and other charges and fees. In addition, we may assess you a $500 relocation fee each time you change any BeyondOffice Services location. If your new location is not within our serving area, or Services end at the prior Service Address and a new agreement for the new location is not entered into by the parties, then you will be deemed to have terminated this Contract and Early Termination Charges will apply.
Acceptable Use Policy. You agree to comply at all times with our Acceptable Use Policy ("AUP") which is posted on the Internet at www.cbeyond.net and is incorporated in this Contract by this reference. We may change the AUP at any time without prior notice to you and any AUP amendments will be effective upon posting on our website.
Additional Services. You may order additional or different Cbeyond Services after the date of this Contract through our website, or by email, facsimile or telephone call to us. Except to the extent expressly governed by another agreement you sign with us, any additional Services that you order through whatever means will be governed by these Terms and Conditions, as modified by explicit terms for such additional Services posted on the Internet at www.cbeyond.net and incorporated herein by reference. Your use of any additional Services will be deemed to be your consent to comply with any additional terms and conditions.
General.
This Contract may only be amended by a written document that is signed by you and a Cbeyond corporate officer at a level of Vice President or above. This Contract contains our entire agreement about the Services and supersedes any prior agreements, understandings or arrangements, both written and oral.
You may assign your rights under this Contract as part of a change in control or ownership of your business or the entity that has signed this Contract with us (whether by sale of stock or assets, reorganization, merger or otherwise) provided that (i) you are current on all payments (i.e. no balance older than 30 days) and (ii) the person(s) to obtain your rights under this Contract (x) agree(s) with us in writing to assume all of your obligations under this Contract and (y) meet(s) the creditworthiness and other preconditions that would apply at the time to a new customer under similar circumstances. If all preconditions in (i) and (ii) are not met, we may treat the Contract as terminated and, in addition to all other rights, charge you Early Termination Charges as of the date of the change of control or ownership.
Any party to this Contract will be considered to have given up or waived its right to require strict performance and compliance by the other party only when it has signed a written agreement or acknowledgement waiving that strict performance and compliance in any instance. Any written waiver in any one instance will not apply to any other or later non-performance or non-compliance by the other party.
Any controversy or claim arising out of or relating to this Contract will be settled only by arbitration to be held and administered in the county of your Service Address or Cobb County, Georgia, by the American Arbitration Association under its Commercial Arbitration Rules. A single arbitrator will conduct the arbitration. Within 30 days of the filing of a claim, both parties must select an arbitrator, who must be a licensed attorney with telecommunications experience. If the parties cannot agree on an arbitrator, then the parties will each select an arbitrator, and those two arbitrators will, in turn, select a third arbitrator, who is a licensed attorney with telecommunications experience, and only such third arbitrator shall conduct the arbitration. The arbitrator will conduct the arbitration so as to reach a final decision within 90 days of the filing of the claim. Each party will petition the arbitrator, and request an arbitration schedule, so that they can complete the arbitration within 90 days of the filing of a claim, and each party will otherwise diligently pursue completion of the arbitration within that time or as soon as possible thereafter. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction in the county of your Service Address or Cobb County, Georgia. Each party will bear its own expenses for the arbitration, unless otherwise ordered by the arbitrator. The parties will engage in discovery in the arbitration pursuant to the Federal Rules of Civil Procedure, except that the discovery period will be 60 days. No claim or action shall be submitted to arbitration if that claim, action or dispute involves any action for injunctive relief or to collect any debt. Any claim or cause of action for injunctive relief or to collect any debt will be severed from any arbitration claims arising from this
Contract and will be adjudicated in any court of competent jurisdiction.
In any action for injunctive relief or to collect any debt, each party consents to the exclusive jurisdiction of the state and federal courts having jurisdiction in the county of your Service Address or Cobb County, Georgia. This Contract will be governed by and interpreted in accordance with the laws of the State of Georgia, without regard to conflict of laws principles, and is subject to any federal, state or local tariffs that may apply. If any conflict should arise between the terms of this Contract and an applicable tariff or addendum, you agree that the terms of the applicable tariff or addendum shall control.
You acknowledge that future rules, tariffs, regulations, orders, treaties or other laws promulgated, enacted, or entered into by international, federal, state or local legislatures, agencies, governments or other regulatory bodies may affect your or our respective rights or obligations under this Contract. If any such future action adversely affects Cbeyond's rights or obligations under this Contract, then we may require, upon 30 days notice to you, that the parties renegotiate this Contract in good faith to address the effect of such actions. Your failure to do so will be deemed to be your termination of this Contract, subjecting you to Early Termination Charges as described in Section 9 above.
If an arbitrator or court should declare any one provision of this Contract to be invalid, then the other provisions will remain in effect and the parties will work in good faith to agree to a replacement provision that has the same or similar intent as the original provision. This Contract is for the sole benefit of you and Cbeyond, and no other person.
All notices under this Contract must be in writing, with all notices to us to be sent to: Cbeyond, LLC, Attn: Customer Care, 320 Interstate North Parkway, Suite 300, Atlanta, GA 30339 or to any other address that we may notify you or post on our web site.
The Section headings used herein are for reference only and will not impact the interpretation of this Contract.
