Velocity Telephone, Inc. (Velocity), and Customer, (the Parties) hereby agree to the following terms and conditions for the services provided to Customer under this Agreement:
Velocity agrees to provide Customer, at the address or addresses listed, with the services ordered in this Agreement, including any necessary conversion services, as well as any services subsequently ordered by Customer, in conformance with the terms and conditions stated in this Agreement and applicable tariffs. Velocity reserves the right to modify its terms, conditions and charges upon thirty (30) days prior written notice to Customer.
Velocity will, as a service to the Customer, arrange for insertion of Customer’s telephone number listing in one local telephone directory, such listing to consist of one line of standard type in both the yellow and white pages. Any other yellow pages advertising will be the Customer’s responsibility and VELOCITY STRONGLY RECOMMENDS THAT CUSTOMER CONTACT ITS YELLOW PAGES ADVERTISING VENDOR PROMPTLY AFTER EXECUTION OF THIS AGREEMENT IN ORDER TO ENSURE CONTINUITY OF YELLOW PAGES ADVERTISING. VELOCITY SHALL NOT BE HELD LIABLE TO CUSTOMER FOR ANY DROPPED LISTINGS FROM THE LOCAL TELEPHONE DIRECTORY OR YELLOW PAGE DIRECTORY.
Velocity will notify Customer when the circuit is delivered. Upon delivery of the circuit, Customer agrees to convert its telecommunications services and commit to a specific conversion date. Customer further agrees that billing will commence no later than seven (7) days after the circuit is delivered regardless of the actual conversion date.
Service Interruption Credit
Customer shall be credited for periods of interruption in local telephone or voice messaging service that exceed four (4) consecutive hours of service interruption. After four (4) hours of consecutive down time, and upon request, Customer will be issued a credit equal to one (1) day of service for each consecutive four (4) hour period of downtime for the affected service covered by this Agreement. Monthly credits issued may not exceed the value of one month's service for the affected service.
For Customers of Internet Service and the data portion of Velocity Integrated service, Velocity commits to a service outage repair time of four (4) hours. Measurement of the service outage period begins when Customer contacts Velocity and logs a trouble ticket. For all other Internet services covered by this Agreement, Customer shall, upon request, be credited for periods of down time caused by any interruption in service after twenty-four (24) consecutive hours of service interruption.
The Service Interruption Credit is subject to the following exclusions: new installations prior to Customer acceptance; the first seventy-two (72) hours of service; outages caused by equipment owned or supplied by the Customer; or by acts of God, fire, war, riots, governmental authorities or other causes beyond Velocity’s exclusive control. The Service Interruption Credit does not apply to usage dependent services.
Such credit shall be the exclusive remedy for the failure of any services provided under this Agreement. In no event shall Velocity be liable for special or consequential damages or for lost profits of any kind.
Velocity will provide Customer with continuation of existing telephone numbers to the extent possible. However, if Customer is changing location at the time of conversion or taking service for the first time at a location, Velocity makes no warranties regarding the assignment of particular telephone numbers to Customer. Velocity shall not be liable to Customer for any change in telephone numbers due to actions of any vendor or supplier of services to Velocity.
The terms and conditions of the Velocity Customer Satisfaction Guarantee are incorporated into and made a part of this Agreement.
EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY
VELOCITY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST VELOCITY FOR THE FAILURE OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT, SHALL BE LIMITED TO A REFUND OF AMOUNTS PAID TO VELOCITY DURING THE PERIOD OF TIME (IN EXCESS OF 4 HOURS) THAT THE SERVICES CONTRACTED FOR BY CUSTOMER FROM VELOCITY WERE INTERRUPTED OR NOT PROVIDED PROPERLY. IN NO EVENT SHALL VELOCITY BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS OF ANY KIND, WHETHER OR NOT VELOCITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VELOCITY MAKES NO WARRANTIES REGARDING ANY PRODUCTS OR SERVICES PROVIDED OR INSTALLED ON CUSTOMER’S BEHALF, BUT VELOCITY SHALL, WHEN POSSIBLE, ASSIGN TO CUSTOMER THE BENEFITS OF ANY WARRANTIES, OR SIMILAR PROTECTIONS PROVIDED TO VELOCITY BY ITS VENDORS OR SUPPLIERS. Velocity shall not be liable to Customer for any failure or non-performance by any vendor or supplier of goods or services or for any charge or any other consequences resulting from Customer’s selection of third parties to supply materials or perform services relating in any way to the services of Velocity hereunder or Velocity’s facilities.
Customer agrees to pay all charges for services provided under this Agreement or subsequently ordered or as may be billed by Velocity on behalf of another vendor, at the applicable rates, including charges for long distance or internet service or other related services, and all applicable federal, state and local taxes and applicable surcharges. Customer is responsible for charges incurred in the event that scheduled technicians cannot gain access to Customer premise. Customer shall be liable for all outstanding local charges, directory charges, long distance charges, and other charges owed to its previous Local Exchange Carrier or any other telecommunication service provider for services provided prior to the conversion date. The term "conversion date" means that date when Velocity commences supplying telecommunication services to Customer pursuant to this Agreement.
All charges will be billed in advance for services not dependent upon Customer usage and in arrears for usage dependent services. All invoices are payable on the due date of invoice, unless disputed by Customer within that time period, in which case only the disputed portion of the invoice may be withheld pending resolution of the dispute. All invoices not paid by the due date will bear interest at the highest rate allowable by law. Failure to pay or dispute charges by the due date could result in disconnection of service.
Usage based services require a minimum deposit of two (2) months estimated usage billing or Electronic billing and direct deposit billing.
If Customer believes it has been billed in error or otherwise disputes a charge, Customer must notify Velocity within ninety (90) days of the date of the invoice containing the disputed charge. Velocity will promptly investigate and notify Customer of the results of its investigation. Any amount still owed after investigation will be due within fifteen (15) days of the notification and any amounts found due that were withheld pending resolution of the dispute will be subject to a late payment charge. Any amount still in dispute by Customer after said investigation may be subject to dispute resolution pursuant to the procedure set forth in this Agreement captioned “Arbitration”.
Installation of Service
Installation of Service is defined as delivery of operating circuits to the demarcation terminal at the Customer's premise. Connections and wiring between the demarcation point and the Customer's equipment is defined as "Premium Wiring" and is the Customer's responsibility or may be purchased from Velocity at an additional charge.
During the term of this Agreement, both Parties will keep in full force and effect insurance policies providing for the following types and amounts of insurance: (a) commercial general liability insurance in an amount not less than one million dollars per occurrence; (b) workers’ compensation insurance in an amount not less than that required by applicable law; and (c) property insurance covering each Party’s own property and equipment for the perils customarily insured for full replacement cost at the time of the loss. Each Party will furnish certificates or other adequate proof of such insurance to the other Party on or before the execution of this Agreement, and thereafter upon written request. Neither Party has any obligation to insure the equipment or property of the other. The insurance policies required in this Agreement will be issued by financially secure insurance companies authorized to issue such insurance in the State of Minnesota. Each Party will require its insurance carriers to give the other Party thirty (30) days prior written notice of any proposed material amendment or cancellation of any policy required hereunder.
Customer shall supply all electrical power and other utilities necessary to operate or use the services provided by Velocity. Customer shall be responsible for maintaining, installing and repairing all Customer-supplied hardware, including telephone sets, and inside wiring necessary to make use of the services provided under this Agreement. Customer shall provide Velocity access to Customer’s premises as may be necessary for Velocity to perform the services under this Agreement and/or to remove or install any Velocity property. Customer shall be responsible for any damage or loss resulting from Customer’s use of equipment not approved or authorized by Velocity.
Customer will take reasonable precautions to prevent individuals under its supervision or control from using the voice mail system to send inappropriate, harassing or abusive messages or solicitations to other voice mail users, and will cooperate with Velocity in preventing or correcting such use as Velocity may reasonably request. Customer shall ensure that its use of voice mail services provided hereunder will be in accordance with all applicable statutes, rules, regulations and tariffs, including the Federal Communications Act of 1934, as amended, and regulations of the Federal Communications Commission. Velocity reserves the right to disable or disconnect, without prior notice to Customer, any voice mailbox it reasonably believes to be receiving an excessive number of calls, is being used in a manner which may jeopardize the access and use of the voice mail system by other customers, or has reason to believe that Customer may have used, or is going to use, or may have permitted another to use the voice mail service in connection with any illegal activity.
Telephone and Internet Usage
Customer may only use the network for lawful purposes. The use of Velocity’s network or systems in violation of any United States or international legislation or regulation is prohibited. This includes, but is not limited to, transmission of copyright material without consent of the copyright owner, material legally judged to be threatening or obscene, and material protected by trade secret, whether or not the Customer was aware of the content of the material or of the relevant law. Customers are prohibited from transmitting child pornography as defined by the Child Protection and Sexual Predator Punishment Act of 1998. In addition the Customer undertakes to conform to the Internet Protocols (IP) and standards. Customer is responsible to comply with Velocity's Acceptable Use Policy published on Velocity's Internet web-site.
Velocity Telephone/USFamily.Net Acceptable Use Policy
The Customer will indemnify and hold Velocity harmless from any claim brought by third parties alleging that use of the network by the Customer has infringed any applicable United States or international legislation or regulation. The Customer shall defend and pay all costs, damages, awards, fees (including reasonable legal fees) and judgments finally awarded against Velocity arising from such claims. The Customer shall give Velocity notice of any claim it is involved with or aware of.
Velocity reserves the right to cancel this Agreement, or require an additional surcharge, should it be determined that Customer's usage is of a volume or nature that impairs or threatens to impair Velocity's service to its other customers. Should a cancellation of the Agreement be deemed necessary, Customer may be converted to a different Velocity service or transferred to another carrier chosen by Customer, without imposition of early termination or other charges. Velocity always reserves the right to immediately and without notice discontinue service if a condition exists that is hazardous to the Company's customers, facilities or employees.
Without prejudice to the foregoing, Velocity considers that any application that overloads the network by whatever means will be considered as making profligate use of the network and is as such NOT allowed. Use of IP multicast other than by means provided and coordinated by Velocity is likewise prohibited.
Velocity will not communicate its Customer’s e-mail addresses or other personal identification to any third party without prior written approval of Customer, except in response to a subpoena validly served pursuant to state law or official government request.
The Customer acknowledges that Velocity is unable to exercise control over the content of the information passing over the Velocity network and is not responsible for the content of any message whether or not a Velocity customer made the posting.
These rules apply to any Internet based distribution medium and any application using the Internet as well (e.g. Usenet news, fax-like documents over the Internet). These rules apply even if the Customer uses another site’s server to relay its communications. Customers are prohibited from forging header information.
GENERAL TERMS AND CONDITIONS
Changes in Rates, Terms and Conditions
Velocity may change its rates, terms and conditions upon 30 days notice to Customer. Use of Velocity services after the thirty (30) day notice period shall be deemed consent to the changed rates, terms and conditions.
Customer shall not assign its interest in this Agreement without the prior written consent of Velocity and such consent will not be unreasonably withheld.
Any controversy or claim arising out of or relating to this Agreement that is not settled by negotiation, shall be submitted to binding arbitration in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be held in Minneapolis, Minnesota, unless another site is agreed upon, and shall be completed within sixty days of the date of service of the demand for arbitration. Arbitration shall be before a single arbitrator selected in the manner provided for by the American Arbitration Association. The non-prevailing party in any such proceeding shall pay all costs, fees and expenses of the arbitrator. If the arbitrator determines that there is not a prevailing party, each party shall bear its own costs and pay one-half of the fees and expenses of the arbitrator.
In any arbitration proceeding commenced pursuant to this Agreement, in addition to the costs of the arbitration, the non-prevailing party, as determined by the arbitrator, shall be responsible for paying the expenses of the prevailing party, including reasonable attorney’s fees, incurred in connection with the arbitration.
Waiver and Estoppel
No term or condition of this Agreement shall be deemed to have been waived nor shall there by any estoppel to enforce any of the terms or provisions of this Agreement unless the party charged with such waiver or estoppel has acknowledged such waiver in writing. It is further agreed that no waiver of any term or provision of this Agreement shall be construed as a waiver of any of the other terms or provisions of this Agreement, nor shall it be construed as a waiver at any subsequent time of the same term or provision.
The Agreement will be governed by the laws of the State of Minnesota, and, where applicable the rates, terms and conditions of Velocity’s Tariffs, as may be filed with the commission in the state in which the service is provided.
In response to a subpoena validly issued pursuant to state law or investigative or other demand issue authorized by a court or government agency, Velocity may provide customer records and related information without further notice.
Neither Party shall be liable to the other for any failure of performance under this Agreement due to causes beyond its control (except for the fulfillment of payment obligations as set forth herein) including but not limited to: acts of God, fire, flood, earthquake or other catastrophes; adverse weather conditions; material or facility shortages or unavailability not resulting from party’s failure to timely place orders therefore lack transportation; the imposition of any governmental codes, ordinances, laws, rules, regulations or restrictions; national emergencies; insurrections; riots, wars, or strikes, lockouts, work stoppages or other labor difficulties (collectively, “Force Majeure Events”).
Term and Termination
This Agreement is for the Term stated on the order, which Term commences on the conversion date. Either party may terminate the Agreement without liability for Early Termination Charges at the end of the Term or any time thereafter, upon written notice provided to the other party no fewer than thirty (30) days prior to the effective date of such termination. If no notice is given thirty (30) days prior to the end of the Term, the Agreement shall remain in effect unless and until either party gives thirty (30) days written notice of termination.
This Agreement may be terminated for cause prior to the end of the Term. “Cause” for termination shall arise as a result of a party’s material breach of any provision of this Agreement, including but not limited to the Customer’s failure to make payment as provided in this Agreement. A party seeking to terminate the Agreement for cause shall give the other party written notice of breach, together with a statement of the material breach or breaches giving rise to cause. If the other party fails to cure all breaches within thirty (30) days of receiving the notice of breach, the party providing notice of breach may then terminate the Agreement immediately by written notice to the other party. If, before the end of the Term, Velocity terminates this Agreement for cause, or Customer terminates more than 40% of the services ordered in the Agreement other than for cause as described above, Customer shall pay Termination Charges as provided below.
Term plans provide Customers with discounts off base rates in consideration for Customer’s agreeing to commit to an extended term period. Unless otherwise noted Termination Charges for early termination of the services ordered under this Agreement are equal to the monthly discount extended to Customer in consideration for agreeing to the term agreement, multiplied by the number of months the discount was received by the Customer (or fraction thereof) plus any termination charges paid to Customer’s previous carrier by Velocity. For customers agreeing to a thirty-six (36) month contract term; if the contract is terminated prior to the fulfillment of the contract term, a termination liability of 50% of the remaining monthly recurring service charge or a $250.00 one-time early termination fee will apply, whichever is greater.
Such Termination Charges are in addition to any due but unpaid recurring, and all unpaid nonrecurring charges, including any installation charges waived by Velocity. In addition, if a router or other hardware was provided to Customer as part of a promotional package, Velocity has the right to retrieve the hardware or its value from customer upon early termination of service from Velocity. If termination is prior to installation of Service, Termination Charges shall be those reasonable costs incurred by Velocity through the date of termination.
Indemnification of Velocity
Customer agrees that Velocity shall not be responsible for any third-party claims against Velocity that arise from Customer's uses of the services provided by Velocity. Customer shall reimburse Velocity for all costs and expenses related to the defense of any such claims, unless such claims are solely the result of willful misconduct or gross negligence by Velocity.
Indemnification of Customer
Velocity agrees that Customer shall not be responsible for any third-party claims against Customer that arise from Velocity's provision of services to Customer. Velocity shall reimburse Customer for all costs and expenses related to the defense of any such claims, unless such claims are solely the result of willful misconduct or gross negligence by Customer.
All notices required to be given by this Agreement shall be made in writing either (a) by mailing the notice in the U.S. mails to the last known address of the party requiring notice, or (b) by email to the last known email address of the party requiring notice and as noted on Acceptance and Signature page of this Agreement.
This Agreement constitutes the entire agreement between the Customer and Velocity and supercedes any and all prior discussions, representations, memoranda, or agreements; oral or written, with respect to the subject matter hereof. No amendment or modification of this Agreement shall be effective unless and until executed in a separate document by the customer and an authorized representative of Velocity.
Velocity Telephone, Inc. (Velocity), and Customer, (the Parties) hereby agree to the following terms and conditions for the services provided to Customer under this Agreement: