Appendix 5

 


TERMS & CONDITIONS

The undersigned states that all statements are true and complete and are made to obtain the services detailed on NBS Service Attachments, and that (s)he is authorized to sign on behalf of Customer.
I authorize NBS to conduct a routine credit check in connection with my application for service. NBS may use any information obtained through this credit application and other sources. I understand that such information will be held strictly confidential and will remain NBS' property whether or not credit is extended. Further, I understand that service is contingent upon NBS' approval, which may occur after actual activation, and failure to meet credit requirements could result in an interruption of all service provided by NBS. By providing my credit card number I agree that NBS will debit my credit card for all monthly charges. Failure to pay invoiced amounts on time will result in late payment fees and may result in termination of network, maintenance, and warranty services.
Unless otherwise specified, the services covered under this agreement and related service attachments are provided on a twelve (12) month basis. At the conclusion of any term or renewal, the term and these Terms and Conditions shall auto-renew for an additional term of equal length unless cancelled by Customer in writing to NBS no less than 45 days prior to term expiration.
At NBS' sole option, any dispute or controversy arising under, out of, in connection with, or in relation to this Agreement, and any Amendment thereof, or the breach thereof, shall be determined and settled by arbitration before, at NBS' choice, one (1) to three (3) arbitrators in accordance with the rules of the American Arbitration Association, to be conducted in Passaic County, in, and using the laws of, the State of New Jersey. Any award rendered therein shall be final and binding upon each and all of the parties, and judgment may be entered thereon in any court having jurisdiction thereof. Arbitration and Arbitrator(s) fees to be borne by the non-prevailing party. Each party shall bear the cost of its own attorneys' fees, if any, except in such case where the action is taken by NBS for the non-payment of a valid NBS invoice, in which case Customer shall be responsible for all reasonable attorneys' fees in addition to any award NBS may receive. Customer hereby waives trial by jury in the event of court action.
Services described herein and on NBS Service Attachments will be provided to the Customer by NBS pursuant to these Terms and Conditions, and applicable state and federal tariffs, all of which may be amended from time to time ("Tariffs"). All of the terms and conditions of the Tariffs that are now or may become in effect are incorporated in this Agreement. If any provision of this form conflicts with any of the terms and conditions of the Tariffs, the provision of this form will govern. Charges and fees, where applicable, represent current rates that are subject to change without notice and at NBS' sole discretion. In no event shall NBS be liable for direct, special, speculative, incidental or consequential damages including loss of profits whether based on contract, tort or other legal theory. The obligation of NBS to provide any of the services hereunder is subject to availability to NBS from the applicable underlying network provider. Customer's sole remedy for NBS's failure to deliver service shall be a pro rata refund of the monthly fixed charges Customer has contracted for based on the number of hours Customer was without service. In any case such refund will not exceed the full amount of the monthly fixed charge. Customer recognizes and accepts that some service issues may be caused by NBS, its underlying carrier or Customer's equipment. In no event shall NBS be responsible for any third party costs incurred by Customer, such as equipment vendor costs, regardless of which party is ultimately determined to have been the cause of the service or installation issue.
This agreement, and any NBS Service Attachments, does not constitute a valid offer unless each one is countersigned by an authorized NBS representative. No change or modification of any of the terms or conditions herein shall be valid or binding unless in writing and signed by an authorized representative of NBS. With respect to those products which NBS licenses, (hardware, firmware or software, and related documentation) and which are supplied hereunder the word “purchase” or similar or derivative words is understood to mean “license”, and “Customer” or similar derivative words is understood to mean “licensee”. Title to licensed product shall remain with NBS, notwithstanding anything to the contrary herein. Licensing of NBS software shall be subject to the standard NBS terms and conditions applicable to the product.
Intrastate rates vary by state. International rates vary by country. Unless approved in writing by an NBS officer to the contrary, residential usage and conference calling service will be billed in 60 second billing increments with a 60 second minimum, non-dedicated domestic commercial long distance usage will be billed in 6 second billing increments with a 30 second minimum, dedicated commercial domestic long distance usage will be billed in 6 second billing increments with an 18 second minimum, commercial international usage will be billed in 6 second billing increments with a 30 second minimum except for Mexico which will be in 60 second billing increments with a 60 second minimum. Each call record will be computed rounded up to the next penny and time increment. Fixed monthly charges (voice and data) are billed a month in advance. Usage and overage charges are billed in arrears. A surcharge will be imposed on all calling card and tollfree calls placed from a payphone. Each of Customer's dedicated long distance voice trunk groups provisioned must carry an average of 50,000 minutes per T1/PRI circuit, or its equivalent, in any Billing Cycle. If any trunk group fails to meet this average, NBS may, upon thirty (30) calendar days prior written notice, in its discretion, disconnect any individual circuit within that trunk group whose usage, following the first two calendar months after connection, falls below 50,000 minutes per T1/PRI circuit or its equivalent. "Billing Cycle" means the month-long period, not necessarily beginning on the first of the month, for which NBS invoices Customer for Service. Usage rates assume standard calling patterns. Calling patterns and average inbound or outbound usage minutes that fall outside of NBS standard acceptable patterns may result in different rates. An additional surcharge may apply for an excessive (as determined by NBS) number of 6 second calls or outbound unanswered calls. For switched service, a switching charge may be incurred each time the underlying interexchange company is changed.
All prices are quoted excluding taxes and fees. Taxes and assessments including a variable carrier recovery fee (currently 1.3% of monthly pre-tax revenue), regulatory compliance surcharge, Long Distance Access Fee and applicable State and Federal Universal Service Fees apply. All accounts incur a monthly billing fee. All charges are subject to change without notice and at NBS' sole discretion. Unless specifically noted on the NBS Service Attachment form, equipment, wiring, and Dmarc extensions are not included. Any service or equipment order canceled prior to installation shall be subject to cancellation charges and may be subject to full termination liability the same as if the service had been installed. Any circuit or service canceled prior to the end of the term indicated will incur a termination liability charge equal to the number of months remaining in the term times all fixed monthly charges. The term for each service begins when NBS installs and begins billing for each service. Customer agrees to be ready to accept each service and to be liable for charges associated with each service as soon as NBS is able to make it available for turn-up. In the case where a service attachment form has an option to insert a Customer Ready Date for a particular service and Customer fills a date in that field, then NBS will not make that service available for turn-up earlier than that Date. NBS shall make every reasonable effort to meet any quoted delivery date for service or equipment however, NBS will not be liable for its failure to meet such date. NBS shall not be liable for any delay in performance hereunder due to unforeseen circumstances, or due to causes beyond its control. For any service running on or through Customer's network, Customer is responsible for providing the correct configuration and equipment needed to interface to the NBS service.
For Hosted VoIP services pricing does not include inside wiring or monthly Network Compliance Fee of $1.95 per seat. Seat price includes mail replacement maintenance for telephones supplied by NBS. Included maintenance does not cover damage caused by vandalism, dropping, foreign substances, or any other act of negligence. Included maintenance does not cover items such as worn handset cords, worn lettering, or other damage caused by normal wear.
Customer hereby grants, and NBS reserves, a purchase money security interest in each piece of equipment supplied, and in any proceeds thereof, for the amount of its purchase price. Upon request by NBS, Customer shall sign any document required to perfect such security interest. For equipment sold, and not rented or loaned by NBS, payment in full of the purchase price shall release the security interest on that equipment. NBS reserves unto itself all rights and remedies available under the Uniform Commercial Code and any other laws. Title to equipment shall remain with NBS until all amounts are fully paid. Equipment provided at no charge on a promotion or rebate will still carry the appropriate sales tax charge when applicable. Any service which includes on-site maintenance (or warranty work) of equipment will be performed between 9:00 am and 5:00 pm Monday through Friday. Work requested to be performed outside of those hours will be billed at the then current NBS after hours rates. Maintenance/warranty coverage does not cover normal wear and tear, damage resulting from abuse or negligence or improper use or maintenance, unauthorized modifications, unauthorized interfacing with 3rd party software, or acts of God (e.g. lightning strikes) as determined by NBS technicians. All patching, painting, concrete openings, conduits or other modifications pertinent to any on-site installation work shall be Customer's responsibility. Customer agrees to provide the required power and space for any equipment installed on-site. Equipment (not purchased by Customer) must be returned at end of term in good condition. For residential accounts, in the event service is terminated the Analog Telephone Adaptor (ATA) must be returned to NBS within 30 days of termination of service otherwise a charge of $175 will be incurred by Customer.