U.S. CUSTOMER SERVICES AGREEMENT
Service under this Agreement shall begin on the start date indicated on the Terms Sheet, and shall continue through the end of the Initial Term indicated on the Terms Sheet. Thereafter, this Agreement shall automatically renew for the same period as found on the Terms Sheet without further action by Customer unless and until either party delivers notice of cancellation at least 60 days prior to the end of the then-current term. If Customer elects to cancel Service prior to the end of the subscribed term, Customer is still responsible for the full term’s charges and any unbilled charges and/or fees to the end of the then-current term, all of which becomes immediately due and payable.
For the Initial Term and any renewal term for the fees set forth herein, AVOXI agrees to provide Customer with the telecommunication services described in the Terms Sheet attached hereto (“Service” or “Services”). AVOXI may modify the Services upon 30 days’ prior written notice, or earlier if required by any regulatory authority. In the event of a conflict between these terms and conditions and what is stated on any particular Terms Sheet/Service Agreement, the Terms Sheet/Service Agreement shall control.
3. CHARGES AND PAYMENT TERMS.
1. Charges and Fees. During the term of this Agreement, for each month of Service, Customer agrees to pay AVOXI the charges and fees according to the Rate Schedule set forth on the Terms Sheet for the greater of (i) the actual Services received by Customer, or (ii) the Monthly Minimum Commitment set forth on the Terms Sheet.
2. Payment Terms. AVOXI shall invoice Customer for services on a monthly basis (or such other basis as may be mutually agreed to by the parties) commencing on the date for the start of Service. Customer agrees to pay each invoice in full without deduction or set off of any kind within 7 business days of receipt. All payments shall be made in US dollars by wire transfer to the account set forth on the invoice. Invoices are sent via email only.
3. Billing Increments. Each call routed through AVOXI shall be billed in 60 second initial and 60 second successive unless noted differently on AVOXI rate schedule(s), as amended by AVOXI from time to time.
3.1 Cancellation Policy: If Customer cancels service prior to the expiration of the contract term, Customer will be responsible for payment of the remaining monthly service fees established in the contract terms. Termination of the agreement does not relieve Customer of its obligation to pay unpaid or accrued charges due. All AVOXI-owned equipment must be returned in working condition at Customer expense. If AVOXI-owned equipment is not returned or is returned broken, Customer is obligated to pay the invoiced replacement value of the equipment.
3.2 Final Charges: Customer is responsible for and agrees to pay the full amount of the final month’s monthly recurring charges. Upon termination of an AVOXI service, Customer will be issued a pro-rated refund equal to the remaining amount of the current month’s recurring charges. Customer will also be charged a final instance of the monthly recurring charges for the cancelled services.
4. Security Deposit. Upon signature of this Agreement, Customer agrees to pay AVOXI a cash security deposit or provide an irrevocable standby letter of credit, or other form of security acceptable to AVOXI, in the amount indicated on the Terms Sheet, within 7 business days of execution of the contract. As usage increases, AVOXI may, at its sole discretion, require Customer to increase the security in an amount sufficient to cover such additional amounts, as AVOXI deems necessary or appropriate. AVOXI reserves the right to check Customer’s credit record and references at any time and, increase the security deposit based on the results of any such check. AVOXI may draw on the security deposit or line of credit for satisfaction of all past due amounts, and upon termination of this Agreement. AVOXI shall return the security deposit within five (5) business days, without interest, upon termination or expiration of this Agreement after all sums due have been paid.
5. Late Fees. AVOXI reserves the right to charge late payments which shall accrue interest at the rate of 1 1/2% of the unpaid balance of the service charges per month, or the maximum lawful rate under applicable law, whichever is less. Additionally, AVOXI will charge an administrative processing fee for late payments. The fee will be based on the amount of the invoice that is delinquent. Please see the below schedule:
6. Rate Adjustment Schedule. AVOXI reserves the right to adjust charges for and/or delete Service offerings to specific locations with 5 days prior written notice to Customer. AVOXI may change or delete Service offerings in Mexico with 24 hours written notice.
7. Taxes. In addition to all fees and charges due hereunder, Customer agrees to pay all use, excise, gross receipt, sales, withholding, VAT, and privileges taxes, and all duties, fees, surcharges or other taxes or similar governmental charges (other than general income or property tax), arising out of or related to the provision of the Services hereunder, whether the responsibility of or charged to AVOXI or Customer (“Taxes”). AVOXI will bill Customer for any Taxes which AVOXI is required to pay. Customer may provide AVOXI with a valid tax exemption certificate that exempts Customer, under applicable law, from taxes that would otherwise be due. In such case AVOXI will not charge Customer such taxes unless otherwise required to do so by a taxing authority.
8. Compliance Fee. Included in the pricing structure is an administrative cost recovery fee for worldwide tax and regulatory compliance. This is referred to as the INTFEE. The INTFEE charge of 18.2% applies to monthly subscriptions and to call traffic.
9. Billing Disputes. Customer shall notify AVOXI of any billing discrepancies in writing and in reasonable detail within 60 days of the date of invoice in question. Customer will be deemed to have waived billing discrepancies for which notice is received by AVOXI after such time. AVOXI shall respond to any notice of billing discrepancy within 30 days of receipt.
10. Suspension of Service. AVOXI may suspend all or a portion of Service for late payment upon 24 hours notice to Customer. AVOXI will not be required to resume Service until Customer is current in all payments, including late fees and penalties, and has provided to AVOXI such additional assurance of Customer’s ability to pay for Service, including a fee for reinstating Service, as AVOXI may require in its sole discretion. If Customer fails to make such payment within a reasonable period of time in AVOXI’ sole determination, AVOXI may cancel this Agreement with the same effect as if Customer had requested early termination under Section 1.
11. 30 Day Service Guarantee. AVOXI Core and Smart Queue services include a 30 Day Service Guarantee. The customer may cancel services any time in the first 30 days for any reason if they are not satisfied with their solution. AVOXI will refund the invoiced monthly recurring charge per seat to the customer if the customer cancels within the first 30 days citing the 30 Day Service Guarantee. If the customer cancels during the first 30 days, the customer will be responsible for returning any AVOXI-owned licenses and/or equipment in good, working condition at their expense. This guarantee is applicable for up to 5 seats on either AVOXI Core or Smart Queue products.
12. For Online Purchases: the “Estimated New Charges” is deemed to represent the description of Services presented to Customer based on the information provided by the Customer from the Online Portal sign-up process, which the Customer completed prior to the Customer’s confirmation of the purchase of the Services. Upon acceptance of an online Sales Order by AVOXI, AVOXI will provide, and Customer will pay for and receive from AVOXI each selected Service pursuant to the terms and conditions of each online Sales Order and this Agreement. All online bundled minutes packages’ rate plans rate in 60 second initial and 60 second successive (60/60).
Adding Services: Additional Services can be purchased by the Customer’s authorized users, who by Customer’s default authorization have the requisite binding authority to legally enter into the agreement, through the AVOXI user interface or by calling AVOXI Customer Care. The Customer hereby authorizes those authorized users to: (i) add Services to Customer’s AVOXI account; and (ii) commit Customer to pay for these Services on a recurring monthly basis. Customer further authorizes AVOXI to obtain payment of Customer’s then-current statement balance from Customer each month from Customer’s current payment method in the account. The ability to purchase Additional Services may be restricted or unavailable for accounts opened through the Online Portal Purchase. Online Purchases do not qualify for the “30 Day Service Guarantee.”
Term: Each Online Purchase will carry a twelve (12) month term of service and at the end of the initial term, it will automatically renew on a monthly basis. AVOXI reserves the right to charge Customer for the full term’s monthly recurring cost (MRC) amount and Customer agrees to pay AVOXI, if Customer terminates service prior to the end of the then effective term.
13. Abuse Policy – Customer may use Service only for lawful purposes and Service may not be used in violation of any operating rule, policy, or guideline set by AVOXI. AVOXI will cooperate with law enforcement if criminal activity is suspected. AVOXI may immediately suspend or terminate Service(s) if such Service is used by Customer or any of its end users in a manner that (i) restricts or inhibits any person, whether a user of AVOXI or otherwise, in its use or enjoyment of AVOXI service or any other systems, services or products, or (ii) if AVOXI believes Service(s) are being used in an unlawful manner.
Customer (and Customer’s agents) must obey AVOXI’s terms and conditions on all services provided, including but not limited to:
(a) Unlimited Plans.
- Service being abused by the customer will be terminated and charged as per the rates agreed upon.
- Unlimited calling plans are only meant to be used by single shift agents with no more than 3 hours per day of talk time, 5 days a week.
- No predictive, broadcast or automated dialers are allowed.
- Calls terminating to destinations outside of the US will incur default rates and will not be included in the unlimited package.
- Inbound 8xx calls from outside the continental US will incur default rates and will not be included in the unlimited package.
- Forwarding to US toll-free numbers or any other number will incur regular termination rates.
- Any incoming calls not terminating to VoIP will incur additional rates.
(b) Call Recording.
- Only Fair Usage is allowed.
- Fair Usage is defined as “normal” office use. Normal usage will not exceed 3000 minutes per month per phone line, extension or SIP Trunk.
- Any service use exceeding the fair usage maximum will incur an overage charge of $0.027 per minute.
- Any overage charges incurred will be charged to the credit card on file at the end of the billing cycle.
- AVOXI reserves the right to suspend and/or terminate services at any time if abuse is detected.
4. TECHNICAL REQUIREMENTS; FORECASTS
1. Technical Requirements. Customer agrees at its own cost to obtain and install interconnection facilities for terminating its traffic into the AVOXI network in accordance with AVOXI’ technical standards and specifications.
2. Traffic Forecast. Customer shall provide AVOXI with a quarterly forecast of Customer’s expected traffic. The initial forecast is set forth on the Terms Sheet. AVOXI shall have a reasonable period of time to increase capacity in the event Customer’s traffic exceeds its forecast. AVOXI shall not be in breach of this Agreement if it cannot accommodate traffic in excess of Customer’s forecast.
5. LEGAL COMPLIANCE; INDEMNIFICATION
1. Licenses and Legal Compliance. Customer is solely responsible for complying with all rules, laws, and regulations regarding receipt and resale of the Services, and for obtaining and maintaining all licenses, registrations, and approvals from any and all regulatory authorities required for its operation as a reseller of AVOXI’ Services. Customer shall provide copies of all such licenses and registrations to AVOXI upon request and shall notify AVOXI within 24 hours of the revocation, suspension, or termination of any of them. Customer shall indemnify and hold AVOXI harmless from all costs, fees, penalties and damages, including without limitation, reasonable attorney’s fees, arising out of or resulting from Customer’s failure to comply with this paragraph. AVOXI may terminate this Agreement immediately at any time if Customer fails to comply with these requirements.
2. Use of Service. Customer may use the Service only for lawful purposes and Service may not be used in violation of any operating rule, policy or guideline set by AVOXI. Customer may resell the Services to its own customers to the extent allowed by law, rule, or regulation. Customer may resell the services (including its sales agents and representatives) only under its own name or trade name, using its own logos or marks, and may not use AVOXI’ trademarks, service marks, or trade names without AVOXI’ express written authority. Purchasers of the Service upon resale by Customer are referred to throughout this Agreement as “End-User(s)”.
3. Fraudulent Calls. Customer shall indemnify and hold AVOXI harmless from all costs, expense, claims, or actions arising out of or resulting from fraudulent calls of any nature, which may comprise a portion of the Service.
4. Indemnification. Customer agrees to forever indemnify and hold AVOXI and any third party provider or operator of facilities used in the provision of Service harmless from and against any and all claims, demands, suits, actions, losses, damages, liabilities, assessments, payments, or penalties, including court costs and reasonable attorney’s fees, which arise out of the installation, hook-up, maintenance or provision of Service hereunder, including the resale or provision of such service to any End-User or other third party by Customer, or arising out of a breach by Customer of its obligations or representations under this Agreement.
6. OTHER CUSTOMER OBLIGATIONS
1. End-User Responsibility. Customer shall be solely responsible for End-Users, including solicitation, service, requests, creditworthiness, customer service, billing and collection, and shall indemnify and hold AVOXI harmless from all costs (including attorney’s fees) arising out of or resulting from these responsibilities.
2. End-User Collections. Neither Customer’s inability to collect from its End-Users, nor any agreement regarding billing adjustments granted End-Users, whether for adjustments for fraudulent charges, directory assistance or any other form of credit, shall relieve or absolve Customer to any extent of its obligation to pay AVOXI for the Services hereunder.
7. DISCLAIMERS AND LIMITATIONS OF LIABILITY
AVOXI shall provide the Services in accordance with the terms and conditions of this Agreement and the conditions of service set forth in its applicable Federal and State tariffs (“The Tariffs”). Customer agrees to notify AVOXI immediately upon interruption of service and provide AVOXI with such information as may be necessary for AVOXI to restore service. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, AVOXI MAKES NO WARRANTIES WITH RESPECT TO THE SERVICE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event shall either party hereto be liable to the other party or to any third parties for any indirect, special, incidental, consequential or exemplary losses or damages relating to or arising from the provision of the services to be provider hereunder, or otherwise relating to the performance by either party of its obligations hereunder, including, without limitation, damages based on loss of revenues, profits or business opportunities, loss of customers, loss of goodwill, or loss of profits arising in any manner from this Agreement, whether or not AVOXI or Customer has or should have had any knowledge, actual or constructive, that such damages might be incurred. AVOXI’S MAXIMUM LIABILITY UNDER OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, FOR DAMAGES FOR BREACH OF THIS AGREEMENT, SHALL BE LIMITED TO THE FEES RECEIVED BY AVOXI HEREUNDER FOR THE PRIOR THREE MONTH PERIOD.
1. Termination for Default. Either party may terminate this Agreement upon the other party’s failure to cure any of the following within thirty (30) days following written notice thereof: (i) a material breach of such party’s obligations hereunder; (ii) the insolvency, corporate reorganization, arrangement with creditors, receivership or dissolution of the other party, (iii) the institution of bankruptcy proceedings by or against the other party; (iv) a final order by a government entity with appropriate jurisdiction that a Service or the relationship hereunder is contrary to law or regulation.
2. Termination for Failure to Pay. AVOXI may terminate this Agreement if Customer fails to make any payment when due or fails to furnish security as may be required pursuant to Paragraphs 3.4 and 3.10 hereof, and fails to cure the default within 10 days after receipt of notice of such default.
3. Termination by Order. AVOXI may terminate Service immediately upon request or order of any court, government, or quasi-governmental agency.
4. Survival. No termination by AVOXI shall in any way relieve Customer of its obligations to pay for any unexpired portion of the then current term.
1. “Confidential Information” shall mean any competitively sensitive or secret business, marketing, or technical information of AVOXI or Customer, including the terms of this Agreement. Confidential Information shall not include information which is (i) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality hereunder), (ii) independently developed by the receiving party without reference to or reliance on any Confidential Information of the disclosing party, as demonstrated by written records of the receiving party, or (iii) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information.
2. Confidentiality. Each party agrees to maintain the complete confidentiality of the Confidential Information of the other. Neither party shall disclose or supply the Confidential Information of the other to any non-employee third party without the prior written approval of the other party. Either party may disclose portions of the Confidential Information of the other to governmental regulatory authorities if such disclosure is required by applicable laws, provided the party required to make such disclosure notifies the other party of the applicable legal requirements before such disclosure occurs and assists the other party to obtain such protection as may be available to preserve the confidentiality of such information.
10. INTELLECTUAL PROPERTY AND PUBLICITY
Neither Customer nor AVOXI is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Notwithstanding the foregoing, Customer agrees that AVOXI may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites, provided that Customer may revoke such right with written notice to AVOXI at any time.
1. Rights Not Exclusive. No right or remedy of either party provided hereby shall be exclusive of any other right or remedy.
2. No Waiver. No failure of either party to exercise any of its rights under any provision of this Agreement or waiver of any breach of the terms of this Agreement by the other party shall be construed as waiver of such rights or of any other breach of the same or any other provision hereof.
3. Notices. All notices, requests and other communications required or permitted to be given or delivered hereunder to either party should be in writing, and shall be personally delivered, or emailed to the Customer email address on record, or sent by certified or registered mail, postage prepaid and addressed, or by overnight courier such as Federal Express to such party at the address shown on the first page of this Agreement, or at such other address as shall have been furnished by notice given in compliance with this section. All notices, requests and other communications shall be deemed to have been given upon delivery as evidenced by the return receipt or delivery records of the courier.
4. Entire Agreement. The parties agree that this agreement, and all exhibits and attachments hereto contain the entire agreement between the parties concerning the subject matter hereof.
5. Amendment, Waiver. This agreement may not be amended or altered and no rights shall be deemed waived unless such amendment or waiver is set forth in writing and executed by all parties hereto.
6. Assignment. This agreement may not be assigned by Customer without the express written consent of AVOXI, provided that either party may assign all of its rights and obligations hereunder to any successor in interest to all or substantially all of its business or assets without such consent. This agreement shall be binding upon and shall inure to the benefit of each party’s permitted successors and assigns.
7. Independent Contractors. AVOXI and Customer shall not be construed to have a relationship of partnership, agency or otherwise by the terms or existence of this Agreement. Each party shall be solely responsible for the actions of its own officers, employees, and agents.
8. Employees. Each party agrees during the term of this Agreement and for 1 year thereafter not to hire or solicit for hire any employees or former employees of the other party.
9. Severability. If any provision of this agreement should be held to be invalid, illegal or unenforceable, then such provision shall be construed in such a way as to make such provision enforceable, or this agreement shall be construed as if such provision had never been contained herein, and such invalidity, illegality or unenforceability shall not affect any other provision hereof.
10. Headings. The headings contained in this agreement are for convenience only and shall be ignored when interpreting this agreement and shall not be construed to alter or change any provision hereof.
11. Choice of Law. This agreement shall be governed by the laws of the State of Georgia without regard to its choice of law rules. With respect to any dispute arising out of or related to the content of this Agreement, Customer consents to the jurisdiction of the of the state and federal courts residing in Cobb County, Georgia, and agrees that such courts shall be the sole venue for resolution of any dispute arising hereunder.
12. Force Majeure. Neither party shall be in default by reason of any failure in the performance of this agreement (other than a failure to make payment when due or to comply with restrictions upon the use of any confidential information or trade secrets) if such failure arises out of any act, event or circumstance beyond the reasonable control of such party, whether or not otherwise foreseeable. The party so affected will resume performance as soon as reasonably possible.
12. USE AND PROTECTION OF CPNI
(a) AVOXI will protect the confidentiality of Customer CPNI in accordance applicable laws, rules and regulations. AVOXI may access, use, and disclose Customer CPNI as permitted or required by applicable laws, rules, and regulations or this Agreement.
(b) Provided that Customer is served by at least one dedicated AVOXI representative under the Service Agreements (that can be reached by Customer by means other than calling through a call center) and as permitted or required by applicable law, AVOXI may provide Customer CPNI (including, without restriction, call detail) to representatives authorized by Customer (“Authorized Customer Representatives” as defined below) in accordance with the following:
(c) AVOXI may provide Customer CPNI to Authorized Customer Representatives via any means authorized by AVOXI that is not prohibited by applicable laws, rules, or regulations, including, without restriction: to the Customer’s email address(es) of record (if any) or other email addresses furnished by Authorized Customer Representatives, to the Customer’s telephone number(s) of record or other telephone numbers provided by Authorized Customer Representatives, to the Customer‘s postal (US Mail) address(es) of record or to other postal addresses furnished by Authorized Customer Representatives.
(d) Authorized Customer Representatives include Customer employees, Customer agents, or Customer contractors, other than AVOXI, who have existing relationships on behalf of Customer with AVOXI customer service, account, or other AVOXI representatives and all other persons authorized in written notice(s) (including email) from Customer to AVOXI. Authorized Customer Representatives shall remain such until Customer notifies AVOXI in writing that they are no longer Authorized Customer Representatives as described below. Customer agrees, and will cause Authorized Customer Representatives, to abide by reasonable authentication and password procedures developed by AVOXI in connection with disclosure of Customer CPNI to Authorized Customer Representatives.
(e) Customer’s notices of authorization or deauthorization must be sent to your service or account manager, and must contain the following information:
– the name, title, postal address, email address, and telephone number of the person authorized or deauthorized
– that the person is being authorized, or is no longer authorized, (as applicable) to access CPNI
– the full corporate name of the Customer whose CPNI (and whose affiliates’ CPNI) the person can access (or can no longer access, if applicable)
(f) During the Service Agreements, Customer will at all times have designated, below or in a separate writing sent to the service manager or account manager, up to three representatives (“CPNI Authorizers”) with the power to authorize Customer representatives to access CPNI under this Agreement. Additions or removals of CPNI Authorizers will be effective within a reasonable period after AVOXI has received a signed writing of the change, including the affected person(s)’ name, title, postal address, email address and telephone number.
13. CONSENT TO USE CPNI FOR LAWFUL PURPOSES
AVOXI acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer’s CPNI. CPNI includes information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from AVOXI, as well as related local and toll billing information, made available to AVOXI solely by virtue of Customer’s relationship with AVOXI. With Customer consent, AVOXI may share Customer CPNI and other Confidential Information among its affiliates and with agents and partners so that all may use this information to offer Customer the full range of services offered by AVOXI and its affiliates. By signing this Agreement, Customer consents to AVOXI using and disclosing Customer CPNI and Confidential Information as described above. Customer may refuse CPNI consent by signing this Agreement and by notifying AVOXI in writing of Customer’s decision to withhold Customer’s consent. Customer’s consent or refusal to consent will remain valid until Customer otherwise advises AVOXI, and in either case, will not affect AVOXI’ provision of service to Customer.
Last Updated: June 12, 2018