These Terms & Conditions (“Terms”) apply to the use or products or services provided by Shift8 Networks, Inc., dba Synergy Telecom (“Synergy”) to the entity identified in a valid and binding Sales Order Form (“SOF”) and are an integral part of the agreement between Synergy and Subscriber. Sometimes Synergy and Subscriber may be referred to as the “Parties” or individually as a “Party”. Using the Synergy Services, Subscriber receives value added technology products and services, all upon the terms and subject to the conditions set forth herein.
1. SERVICES. Synergy is to provide those certain services to Subscriber through Synergy’s Partner who in turn shall provide the Subscriber with selected communication service(s) as set forth in any Service Addenda referencing these Terms (the “Services”).
Subscriber acknowledges that Partner shall be the first point of contact for any technical support issues to include on-premise troubleshooting of problems with local Internet, routers, gateways, local infrastructure, devices, etc. Partner hereby agrees to provide Tier One support to Subscriber and agrees to be responsive, courteous and provide the best dedicated support possible to resolve any service issues. If Subscriber is not receiving such support, Subscriber may request Synergy to transfer Subscriber’s account to another Partner or become a direct Subscriber of Synergy.
If any devices are provided by Partner to Subscriber, Partner shall be responsible for any maintenance during the term of the Service Addendum. Such devices shall be returned to Partner after the termination of the Service Addendum.
2. TERM AND CONSEQUENCES OF EARLY TERMINATION. These Terms shall be effective as of the date first set forth above. Each Service shall become subject to this document as of the date of the Service Addendum on which it is listed and shall continue to be subject for the Term set forth in the Service Addendum applicable to such Service (minimum of 1 year term). If Subscriber desires to terminate any Services as set forth in a Service Addendum before the initial term has ended or any renewal term, Synergy shall charge and Subscriber will pay, an early termination fee equal to 100% of the Monthly Recurring Fee for the terminated Service(s) multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination fee is in addition to the full Monthly Recurring payable for the month of termination.
2.1 AUTO-RENEWAL. The Services will automatically renew at the expiration of the initial term stated above for an additional twelve (12) months unless either party terminates the Services by giving the other party thirty (30) day’s advance written notice of non-renewal.
3. NET OF TAXES. All pricing for Services and other charges due hereunder are exclusive of all applicable taxes, including value added tax, sales taxes, duties, fees, levies or surcharges (including where applicable any Universal Service Fund or similar surcharges) imposed by, or pursuant to the laws, statutes or regulation of any governmental agency or authority, all of which shall be the sole responsibility of Subscriber. Pricing for services or products in any Service Addenda is subject to change at any time. Synergy shall give Subscriber thirty (30) days written notice of any pricing changes. Furthermore, Subscriber agrees to indemnify and hold Synergy harmless from any liability therefore. Except as set forth herein, all amounts payable by Subscriber shall be made without any deduction or counterclaim, free and clear of any deduction or withholding on account of any tax, duty or other charges of whatever nature imposed by any taxing or governmental authority.
4. PAYMENT TERMS; LATE PAYMENT CHARGE. Unless otherwise provided, any recurring charges will be billed in advance and any usage charges will be billed in arrears. Invoices are due and payable in US Dollars within 15 days of the date on the invoice (“Due Date”). Synergy may invoice Subscriber one month in advance for fixed charges. Subscriber shall pay a late charge of 1.5% per month of undisputed amounts, or the highest lawful amount, whichever is higher, on any amount owed but not paid by the applicable Due Date.
5. DISPUTES. Subscriber agrees to pay any undisputed amounts by the Due Date. Any bona fide dispute that Subscriber may have concerning an invoice must be brought to Synergy’s attention by written notice, in hard copy or electronic format, within 15 days of receipt of the invoice with sufficient evidence and documentation for Synergy to analyze the dispute. The billing records of both parties may be used to resolve such dispute. Synergy may not unreasonably reject Subscriber’s dispute/billing adjustment request, nor may Synergy reject a dispute without providing reasonable and material written documentation substantiating the justification for rejecting the dispute. The Parties shall cooperate in good faith to resolve any such disputes within a 30 day period thereafter. If Synergy brings legal action for the recovery of any amounts due from Subscriber, the non-prevailing party shall pay the prevailing Party’s reasonable attorneys’ fees, collection fees and costs actually incurred by the prevailing party.
6. SUSPENSION/REDUCTION/TERMINATION. In addition to any other rights at law or in equity, Synergy may immediately upon notice as applicable, suspend the delivery of Services, reduce the Services, and/or terminate the Services in the event that Subscriber: (a) exceeds the Credit Limit; (b) fails to make payment when due and such breach is not remedied within 10 business days after receipt of written notice thereof; or (c) becomes insolvent, files or has filed against it any proceeding pursuant to the U.S. Bankruptcy Code or ceases paying its debts generally as they mature.
In the event that Subscriber commits a breach of any of the terms (other than those set forth above in (a) through (c) and fails to remedy such breach within 30 days after receipt of written notice thereof, Synergy may suspend the delivery of Services, reduce the Services and/or terminate the Services, in addition to any other rights at law or in equity.
In the event that either Synergy or Subscriber separate from Partner, Subscriber shall become a direct customer of Synergy Unless expressly provided otherwise in any Service Addendum, Subscriber may terminate the Services or any applicable Service Addendum as of the end of any Service Addendum Term by written notice to Synergy and Partner not less than thirty (30) days prior to the expiration of such Service Addendum.
7. LIMITATION OF LIABILITY; INDEMNITY. The Parties acknowledge that they have no control over how a foreign administration or third-party carrier establishes its own rules and conditions pertaining to international telecommunications services. The Parties agree that they shall not be liable to each other for any loss or damage sustained by any of the Parties, its interconnecting carriers, its customers or end users due to any failure in or breakdown of the communication facilities associated with providing the Services or for any delay, interruption or degradation of the Services whatsoever. In no event shall a Party be liable to another Party for consequential, special or indirect losses or damages sustained by them or any third parties relating to the Services howsoever arising and whether under contract, tort or otherwise (including, without limitation, third party claims, loss of profits, loss of customers or damage to reputation or goodwill).
Each Party (for purposes of this paragraph, the “Indemnifying Party”) shall indemnify and hold harmless the other and all of their officers, agents, directors, shareholders, subcontractors, subsidiaries, employees and other affiliates (collectively “Indemnified Party”) from and against any claim, cost, damage, demand, liability, loss, penalty, proceeding or reasonable attorney’s fees imposed upon the Indemnified Party by reason of any claims or damages arising out of or relating to (a) damages to property or bodily injuries, including death, as a result of an intentional or negligent act or omission by the Indemnifying Party or any of its affiliates; and (b) the Indemnifying Party’s breach of the representations and warranties set forth in this Document. The Indemnifying Party will not settle any claims, demands, suits, proceedings or actions without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
In no event will Synergy be liable to Subscriber or Partner for any amount in excess of the aggregate amount Synergy has collected from Subscriber.
8. REASONABLE BUSINESS USE. Subscriber agrees, represents, and warrants that it is purchasing the Services and/or 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 written consent of Synergy. Synergy’s Services with usage are for reasonable business use of Subscriber 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 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. Subscriber will not use the Services to send unsolicited commercial e-mail or Text Messages outside of Subscriber’s organization. Subscriber 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. Subscriber further agrees 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, regulations, or other law. Without limiting any other remedies hereunder, Synergy reserves the right to immediately terminate or modify the Services of any Subscriber using Services if Synergy so determines, in its sole discretion, that Subscriber is not using such Services for Subscriber’s reasonable business use.
9. INTERNATIONAL USAGE. Synergy hereby reserves the right, in its sole discretion, to block access to certain international phone numbers in countries that are frequently implicated in fraudulent calls (“Fraud”). At Subscriber’s request, Synergy may provide access to those destinations on the following conditions: a) It shall be Subscriber’s responsibility to ensure the account is not used in any fraudulent scheme to make calls or faxes to those Fraud destinations; b) In the event Subscriber’s account is used fraudulently in connection with the Fraud destinations, Synergy reserves the right to immediately and irrevocably deny the Subscriber access to any international usage; c) Subscriber agrees to indemnify and hold harmless Synergy and its affiliates, agents, Subscribers, and other providers from any damages, losses, liabilities, claims, expenses, and costs (including, without limitation, reasonable attorneys’ fees) arising from and or relating to fraudulent or improper calls or faxes to Fraud destinations.
10. FORCE MAJEURE. No failure or omission by any Party to carry out or observe any of the terms and conditions (other than any payment obligation) shall give rise to any claim against such Party or be deemed a breach if such failure or omission arises from an act of God, an act of Government, any cause reasonably beyond the control of a Party, or any other circumstance commonly known as force majeure. In the event that Synergy is unable to provide Service (or a component thereof) for thirty (30) consecutive days due a to Force Majeure event, Subscriber may terminate the affected Service (or component thereof) with no liability upon written notice thereof.
11. PUBLICITY, CONFIDENTIALITY. Each Party shall maintain the confidentiality of all information or data of any nature (“Information”) provided to it by any other Party hereto provided such Information contains a conspicuous marking identifying it as “Confidential”. In the case of oral information, such Information is characterized as “Confidential” in writing sent by the disclosing Party to the other Party within 15 days of disclosure thereof. Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect the Information it receives hereunder as it accords to its own confidential and proprietary information. The above requirement shall not apply to Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party, is already publicly available through no breach or has been previously independently developed by the receiving Party. This Document shall not prevent any disclosure of Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of this required disclosure.
12. DISCLOSURE. Without obtaining the prior written consent of the other Party hereto, a Party shall not (a) refer to itself as an authorized representative of a Party in promotional, advertising or other materials; (b) use the Party’s logo, trade marks, service marks, or any variations thereof in any of its promotional, advertising, or other materials, or (c) release any public announcements referring to a Party.
13. NOTICES. All notices, requests or other communications hereunder shall be in writing, addressed to the Parties at the address set forth in the Service Addendum. Notices mailed by registered or certified mail shall be deemed to have been received by the addressee on the fifth business day following the mailing or sending thereof. Notices sent by facsimile shall be deemed to have been received when the delivery confirmation is received.
14. COMPLIANCE WITH LAWS. These Terms and its continuance hereof is contingent upon the obtaining and the continuance of such approvals, consents, governmental and regulatory authorizations, licenses and permits as may be required or deemed necessary by the Parties, and the Parties shall use commercially reasonable efforts to obtain and continue same in full force and effect. The Parties shall not use the Services in any manner or for any purpose which constitutes a violation of applicable laws or regulations in any jurisdiction in which the Services are being provided. The Parties agree to those provisions of the Communications Act of 1934, as amended, and applicable state laws that provide for the sale of telecommunications services among carriers and that all services are being provided pursuant to the rates, terms and conditions set forth and not pursuant to any tariff on file with the Federal Communications Commission or any state or similar regulatory authority. The Parties further agree that the rates, terms and conditions set forth herein and in all Service Addenda shall take precedence over any inconsistent rates, terms and conditions in any federal, state or similar tariff, that neither Party shall have the right to assert the preeminence of its tariffs over any rate, term or condition set forth or any Service Addenda and that any such action by a Party shall be deemed a material breach hereof. The Parties acknowledge their awareness of the U.S. do-not-call requirements and rules set forth in 47 CFR § 64.1200 and 16 CFR Part 310. The Parties are in compliance with the Federal Communication Commission’s CPN rules. The Parties shall indemnify each other against any violation of the terms of this Article 14. Subscriber acknowledges that for 911 services to function properly, the caller must be calling from the location associated with the number.
The Parties agree to indemnify each other from all costs, expenses, claims, or actions arising from allegedly fraudulent calls through the Services. The Subscriber is responsible for payment of the total invoice amount from the Synergy regardless of whether they are allegedly fraudulent calls. The Parties agree to mutually implement suggestions to avoid any fraudulent activity through the Services.
Subscriber agrees to reasonable usage for any unlimited calling plans it may purchase through any applicable Service Addendum. Synergy reserves the right to terminate or restrict services without notice.
15. RELATIONSHIP OF THE PARTIES. The relationship between the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership between them, a joint venture, or a merger of their assets or their fiscal or other liabilities or undertakings. No Party shall have the right to bind any other Party, except as expressly provided for herein.
16. GOVERNING LAW. This Document shall be governed by the law of the State of Texas without reference to its principles of conflict of laws. The Parties irrevocably consent and submit to the personal jurisdiction in the courts of the State of Texas for all matters arising under this Document.