IPitomy Communications, LLC Basic Services Agreement
This IPitomy Communications, LLC Basic Services Agreement dated as of the application sets forth the terms agreed to, by and between IPitomy Communications, LLC ("IPITOMY "), a Florida LLC with offices at 2031 Global Ct., Sarasota 34240 and the Party identified in the application ("Customer").
Whereas, IPITOMY owns and operates a communications network and is in the business of providing communications services to other entities; and
Whereas, Customer desires to purchase from IPITOMY certain services available through the IPITOMY network;
Whereas, IPITOMY is willing to sell such services to Customer according to the terms and conditions set forth in this Agreement (the “Services”);
Now, therefore, in consideration of the foregoing recitals and the covenants contained herein and other good and valuable consideration, the two parties agree as follows:
- TERM- The term of this Agreement ("Term") begins on the Effective Date and ends after the selected term. Customer agrees to pay for Services for the duration of this agreement. Cancellation of this Agreement does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
- 911 & SERVICE LIMITATIONS- The Federal Communications Commission (“FCC”) requires that IPITOMY provide E911 Service to all customers who use IPITOMY services within the United States.
2.1. CUSTOMER ACKNOWLEDGES THAT IPITOMY 'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL LAND LINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 2 AND CUSTOMER HEREBY AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER'S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. IPITOMY WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT IPITOMY HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH IPITOMY E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. IPITOMY ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
2.2. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
2.3. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION PROPERLY IF THERE IS AN INTERRUPTION OR A LACK OF BANDWIDTH OF CUSTOMER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
2.4. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST IPITOMY FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
2.5. IPITOMY E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, TOLL FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. CUSTOMERS WHO SUBSCRIBE TO IPITOMY E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (ATA or IP PHONE) WITH IPITOMY , ON THE INITIAL ORDER FORMS OR BY CALLING CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. CUSTOMER ACKNOWLEDGES THAT IPITOMY ’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY IPITOMY WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO IPITOMY BY CUSTOMER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, IPITOMY MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE CUSTOMER’S ACCOUNT OR INITIAL ORDER.
2.6. THE CUSTOMER ALSO ACKNOWLEDGES THAT IPITOMY E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE IPITOMY ’S E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE EACH CUSTOMER’S CIRCUMSTANCES MAY VARY WIDELY, CUSTOMERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON IPITOMY E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER'S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH IPITOMY E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** IPITOMY E911 SERVICE WILL NOT FUNCTION IF CUSTOMER'S ATA or IP PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER'S IPITOMY SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE IPITOMY SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO IPITOMY ’S NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING IPITOMY E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE IPITOMY E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE IPITOMY NETWORK, THERE IS A POSSIBILITY THAT A IPITOMY E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF A CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE IPITOMY EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, IPITOMY E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
2.7 CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT IPITOMY WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING IPITOMY OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS IPITOMY , ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
- EQUIPMENT - To provide the Services, IPITOMY may sell certain equipment to Customer, including Provider Equipment (as defined below) and Customer Premise Equipment (as defined below). All equipment shipments are F.O.B. IPITOMY’s facility. IPITOMY’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to Customer. Customer will be provided a twelve (12) month warranty from the date of purchase of equipment. Customer shall be required to obtain an authorization from IPITOMY to return any equipment. IPITOMY will provide replacement equipment only if the equipment is deemed to be defective and covered under the warranty. IPITOMY will not cover replacement for lost, stolen or modified equipment. Equipment returned by Customer that is not covered under warranty may be refused by IPITOMY and Customer will be responsible for all return shipping charges.
- BILLING, CHARGES AND PAYMENTS
4.1. PAYMENT - Upon purchase of the Service, Customer may be asked to provide IPITOMY with ACH Debit information or a valid credit card number from an issuer that is accepted by IPITOMY. Customer authorizes IPITOMY to charge the ACH account and/or credit card number provided by Customer for all charges arising from Customer's use of the Services as well as fees related to any disconnection of the Service if payment is not made on time. Customer agrees to notify IPITOMY of any change to the ACH Debit or credit card information including, but not limited to, changes in account number, expiration date or billing address. IPITOMY shall not be responsible for any charges made by the bank or credit card issuer to Customer’s account for exceeding credit limit, insufficient funds or other reasons. Customer's account will not be billed until product or equipment has shipped. Estimated ship dates are approximate and are not guaranteed.
4.2 LATE/NON-PAYMENT- If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined credit card charges, IPITOMY may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by IPITOMY. If charges cannot be processed to the credit card and the Customer’s account is suspended, Customer’s will be charged a fee of fifty dollars ($50.00) to reactivate the account. No suspension or termination of the Services or of this Agreement shall relieve Customer’s from paying any amounts due hereunder.
4.3. CREDIT TERMS - All Services provided to Customer and covered by this Agreement shall at all times be subject to credit approval or review by IPITOMY. Customer will provide such credit information or assurance as is requested by IPITOMY at any time. IPITOMY, in its sole discretion and judgment, may discontinue credit at any time without notice and/or require a deposit or prepayment or automated payment by credit card or ACH Debit.
4.4. BILLING - IPITOMY will provide Customer with a monthly billing statement sent by electronic mail for all Services provided. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. All rates and charges will be as provided in the Customer Order Schedule attached to this agreement. Monthly service fees are billed in advance of each month's service; toll charges and any other applicable charges are billed subsequent to the end of each month's service. Billing for monthly service fees commences upon purchase of the Services, and the first month's monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated. IPITOMY and Customer also agree that additional services may be ordered from time to time after the initial installation and commencement of Services. Therefore, additional customer order schedules may be executed and will contain pricing and a full description of the additional services to be provided by IPITOMY. Regardless of the date of execution of the additional customer order schedules, any and all customer order schedules executed between IPITOMY and Customer shall incorporate all of the terms and conditions of this Agreement unless specifically stated otherwise in writing.
4.5. RATE CHANGES - IPITOMY may change the prices for the Services and toll charges from time to time. IPITOMY may change prices, plans, taxes or fees with thirty (30) days advance written notice. International toll calling rates are updated monthly on the web site on the first of each month and no other notice shall be provided for changes to international toll calling rates. In the event that a term for a specific time is agreed to as may be stated in 1. Term in this agreement, this only binds for the monthly package price and not for possible rate changes for International, 800 calls, or tax increases.
4.6. CREDITS - Customer acknowledges and agrees that the Services are provided "as is, where is." Credit allowances for interruption of the Services shall not be provided.
4.7. BILLING DISPUTES - Customer must provide IPITOMY with written notice of any disputed charge(s) within thirty (30) days after the invoice dates listed on the bill or shall be deemed to have waived its right to dispute the charges. The dispute notice shall be sent to disputes@ipitomy.com and shall set forth in reasonable detail with the information concerning the disputed charges and the reason for the dispute. IPITOMY and Customer will both act in good faith to promptly resolve any dispute.
4.8. TAXES - Prices for the Services do not include any customs, duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides IPITOMY with an appropriate exemption certificate. If any amounts paid for the Services are refunded by IPITOMY, applicable taxes may not be refundable.
- TELEPHONE NUMBER- Any telephone number provided by IPITOMY ("Number") to the Customer shall be considered leased and not sold. Customer shall not use the Number with any service without the express written permission of IPITOMY. IPITOMY reserves the right to change, cancel or move the Number at its sole discretion. At IPITOMY’s discretion, IPITOMY may release the Number to Customer at the end of the Term.
- PROHIBITED USES- Any use of the Services or any other action that causes a disruption in the network integrity of IPITOMY or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of IPITOMY. Customer understands that neither IPITOMY nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements), infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of IPITOMY. Customer shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service.
- CHANGES TO THE AGREEMENT, SERVICES OR PLAN- IPITOMY reserves the right to make changes to the terms and conditions of this Agreement. In the event of a change of such terms and conditions, IPITOMY will post the change to the web site currently located at www.IPITOMY .net. Customer reserves the right to cancel this Agreement if it finds the change in terms and conditions to be unacceptable. However, a change in international toll rates does not represent a change in terms to the Agreement. Any cancellation must be in writing and presented to IPITOMY within fifteen (15) days of IPITOMY’s notice of the change. Customer may request a Plan change at any time, subject to any applicable change of service fee and additional terms and conditions. The Plan change will take effect in the first month after the Plan is changed.
- NOTICE- Notice will be considered received by Customers and such changes will become binding to Customers, on the effective date of changes are posted to the web site ("Change Date"), and no additional notice will be required. If Customer does not send IPITOMY notification of their desire to terminate this Agreement or uses the Service after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of Service and terminates this Agreement, Customer will be responsible for any sums due hereunder in addition to any applicable disconnection fee pursuant to Section 9. Customer may request a Plan change at any time, subject to any applicable change of service fee and additional terms and conditions. All notices to IPITOMY must be in writing and may be mailed to:
IPitomy Communications, LLC
2013 Global Ct.
Suite B-1
Sarasota, FL 34240
or sent by electronic mail to sip@ipitomy.com.
- TERMINATION- Customer agrees to provide IPITOMY with thirty (30) days written notice of termination on month to month agreements. Customer shall be responsible for the full monthly service fee for the month after which the notice of termination of Service is provided to IPITOMY. Multiyear agreements are cancelable with 30 days’ notice or the Agreement automatically renews for the same duration of the original multi-year Agreement. Customer cancelling a multi-year Agreement prior to the end of the term agrees to pay a cancellation fee equal to 70% of the remaining amount due to the end of the term upon cancellation. IPITOMY reserves the right, at its sole discretion, to suspend, terminate or change the Services without advance notice for any reason, including without limitation, misuse of the Services in any way, Customer's breach of this Agreement, Customer's failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, IPITOMY’s network or other Customers' use of the Services. IPITOMY reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that IPITOMY’s determination is final and binding on Customer. IPITOMY may require an activation fee to change or resume a terminated or suspended account. All current and past due balances for Services must be paid in full upon termination.
- PRIVACY- IPITOMY utilizes the public Internet and third-party networks to provide fax, voice and video communication services. Accordingly, IPITOMY cannot guarantee the security of fax, voice and video communications of Customer. IPITOMY is committed to respecting a Customer's privacy. Once the Customer chooses to provide personally identifiable information, it will only be used in the context of the Customer's relationship with IPITOMY. IPITOMY will not sell, rent, or lease Customer’s personally identifiable information to others. Unless required by law or subpoena or if Customer's prior permission is obtained, IPITOMY will only share the personal data Customer provides with other IPITOMY entities and/or business partners that are acting on IPITOMY’s behalf to complete the activities described herein. Such IPITOMY entities and/or national or international business partners are governed by IPITOMY’s privacy policies with respect to the use of this data. IPITOMY is required to file numerous reports with different administrative bodies. As such, IPITOMY may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, IPITOMY reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either IPITOMY or any company affiliated with IPITOMY. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, IPITOMY may disclose personally identifiable information.
- RETURNS AND ADJUSTMENTS - No Equipment may be returned by Customer for any reason without prior approval of IPITOMY. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to IPITOMY any Equipment that is being returned. Any Equipment returned to IPITOMY without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation Customer must immediately obtain a return material authorization number from IPITOMY , return to IPITOMY any Equipment provided or leased hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to IPITOMY an amount equal to the fair retail price of the Equipment minus any payments Customer had previously paid specifically for such Equipment.
- CUTOVER DATE AND ACCEPTANCE- For the purposes of this Agreement, "cutover date" is defined as the date upon which the Services are first utilized. The "estimated in service date" is only an approximate date of when the Service should be available. Provider shall not be liable for special consequential or punitive damages for causes beyond its reasonable control or unforeseen circumstances causing delays in delivery of Services. Customer agrees not to withhold any scheduled payments due to such problems.
- BREACH- In the event of Customer's breach of the terms of this Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse IPITOMY for all attorney, court, collection and other costs incurred by IPITOMY in the enforcement of IPITOMY’s rights hereunder and IPITOMY may keep any deposits or other payments made by Customer.
- INDEMNIFICATION- Customer shall indemnify IPITOMY, its affiliates, officers, directors, licensees and licensors from any and all claims and expenses, including, without limitation, reasonable attorney’s fees arising from Customer’s breach of any provision of this Agreement or asserted by third parties against IPITOMY arising from Customer’s use of the Equipment or the Services or from any other action or inaction by Customer.
- DISCLAIMER OF CONSEQUENTIAL DAMAGES- IN NO EVENT SHALL IPITOMY OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF
WARRANTY, THE NEGLIGENCE OF IPITOMY OR ITS VENDORS OR OTHERWISE.
- WARRANTY AND LIABILITY LIMITATIONS- IPITOMY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER IPITOMY NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO IPITOMY 'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF IPITOMY 'S OR
IT’S VENDORS' NEGLIGENCE. ANY CLAIM AGAINST IPITOMY MUST BE MADE WITHIN 30 DAYS OF THE EVENT OF THE CLAIM OR 30 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND IPITOMY HAS NO LIABILITY THEREAFTER. IPITOMY 'S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. IPITOMY MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN IPITOMY . IN NO EVENT SHALL IPITOMY 'S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO IPITOMY IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
- CUSTOMER SATISFACTION GUARANTEE– If Customer is unsatisfied with IPITOMY’s Services and if for any reason Customer wishes to cancel all or part of Customer’s Service bundle within 30 days of activation, the customer may obtain a refund of service and equipment fees. To cancel and obtain a refund, Customer must cancel their Service within 30 days of the activation of their account by completing a cancellation form. Returns require a return authorization number and Customer is responsible for return shipping charges. Customer must contact IPITOMY Customer Care to cancel Service and obtain a return authorization number. Customer will be refunded a service fee in a timely manner after IPITOMY receives Customer’s Equipment (if applicable) and cancellation notice. Equipment returned without a valid return authorization number will not be eligible for the Customer Satisfaction Guarantee. Customer is responsible for all international long distance and directory assistance call charges. Equipment must be returned in the original packaging in good working condition, with the UPC or bar code intact. All components, manuals and registration card(s) must be included. All returned equipment may incur a 15% restocking fee of the purchase price. Equipment must be returned at Customer’s expense to a local dealer or through a commercial carrier. Customer must return equipment within seven (7) days of cancellation. The Customer Satisfaction Guarantee will not be issued if all of the above requirements are not met.
- EXPORT COMPLIANCE- Customer agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Services. Customer agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
- SURVIVAL- The provisions of section 2, 3, 4, 13, 14, 15, 16, and 20 shall survive any termination of this Agreement.
- FORCE MAJEURE (EVENTS BEYOND OUR CONTROL)- IPITOMY shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of IPITOMY as may occur in spite of IPITOMY 's reasonable efforts.
- GOVERNING LAW / RESOLUTION OF DISPUTES.
21.1. MANDATORY ARBIRTRATION - EXCEPT AS NOTED BELOW, CUSTOMER AND IPITOMY WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO CUSTOMER, INCLUDING ANY BILLING DISPUTES (“CLAIMS”). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or products provided, including THE Equipment, or billed to Customer if Claims are asserted against IPITOMY in the same proceeding. ARBITRATION WILL BE CONDUCTED UNDER THE AAA’S PUBLISHED COMMERCIAL ARBITRATION RULES AND SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARE AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org.
21.2 DISPUTES - Customer and IPITOMY agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The AAA Supplemental Procedures for Consumer-Related Disputes provide that unless a hearing is requested, disputes will be resolved based on written submissions and no personal appearance is required. If Customer requests an arbitration hearing, that hearing will take place either telephonically or in Sarasota, Florida. As a limited exception to the agreement to arbitrate, Customer and IPITOMY agree that: (a) Customer may file Claims in small claims court in Sarasota, Florida, if the Claims qualify for hearing by such court; (b) if Customer fails to timely pay amounts due, IPITOMY may assign the account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or this Agreement; and (c) any Claim filed as a class action is not subject to arbitration but instead must be filed in the Florida Superior Court, County of Sarasota or in the United States District Court for the Southern District of Florida.
21.3. PREFILING NOTICE OF CLAIM - BEFORE INSTITUTING ARBITRATION OR SUIT, CUSTOMER AGREES TO PROVIDE IPITOMY WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO IPITOMY AT disputes@IPITOMY.com. IF IPITOMY IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN CUSTOMER OR IPITOMY MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTIONS 21.1 AND 21.2. All claim notices should be sent to: Finance Dept. IPitomy Communications, LLC, 2031 Global Ct., Sarasota, FL 34240 – or –finance@ipitomy.com.
21.4. GOVERNING LAW - The Agreement and the relationship between Customer and IPITOMY shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason, Customer and IPITOMY agree to submit to the personal and exclusive jurisdiction of the courts within the state of Florida, to the extent possible in Sarasota County, and waive any objection as to venue or inconvenient forum. The failure of IPITOMY to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- SOFTWARE COPYRIGHT- Any software used by IPITOMY to provide the Services and any software provided to Customer in conjunction with providing the Services are protected by copyright law and international treaty provisions. Customer may not copy the software or any portion of it.
- ASSIGNMENT - IPITOMY may assign this Agreement without Customer’s prior consent and all of IPITOMY’s rights, title and interest herein shall inure to the benefit of such assignee, its successors and assigns. Customer shall not assign, without the prior written consent of IPITOMY, which shall not be unreasonably withheld, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
- 23. Waiver and Release of Liability for International Long Distance Services
READ BEFORE SIGNING
In consideration of being allowed to send international long distance calls over the IPitomy global Voip network, the undersigned acknowledges, appreciates, and agrees that:
The risk of opening up our phone system to send expensive international long distance calls is significant, including the potential for international toll fraud caused by outside parties hacking into our phone system and sending out expensive international long distance calls which we will be charged for.
We acknowledge that IPitomy has given us the option of choosing other international long distance service plans. Choosing an international plan exposes us to the greatest risk.
We understand that there are several things that we can do to reduce or eliminate this risk including choosing a different service plan, not allowing international long distance calls from our phone system, not allowing access to our phone system from international IP addresses and maintaining passwords for our system that are difficult to break in to.
I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and assume full financial responsibility for my participation.
I willingly agree to comply with the stated terms and conditions of the IPitomy Basic Services Agreement.
WE HEREBY RELEASE AND HOLD HARMLESS IPitomy Communications, LLC, their officers, officials, agents, employees and owners (“RELEASEES”), WITH RESPECT TO ANY AND ALL financial responsibility related to using their international long distance services, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.
By Checking the Agreement check box and/or Signature on the IPitomy Cloud Services Application or by using IPitomy Cloud Services you agree to the terms and conditions of the above agreement.
- ENTIRE AGREEMENT- The terms and conditions of this Agreement, along with the rates posted to the web site currently located at www.ipitomy.com, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This Agreement shall be binding upon the heirs, successors, and assigns of IPITOMY and Customer.
By Checking the Agreement check box and/or Signature on the IPitomy Cloud Services Application or by using IPitomy Cloud Services you agree to the terms and conditions of the above agreement.
ATTACHMENT A
IPitomy Communications, LLC
CUSTOMER PREMISE EQUIPMENT SALE AGREEMENT
THIS CUSTOMER PREMISE EQUIPMENT SALE AGREEMENT (this “Agreement”) is entered into as of the date of this application, by and between IPitomy Communications, LLC. a Florida corporation (“IPITOMY ”), and Applicant, (“Customer”).
- Sale of Equipment. IPITOMY hereby sells to the Customer, and the Customer hereby purchases from IPITOMY , certain customer premise equipment (hereinafter referred to as the “Customer Premise Equipment” or “CPE”) more specifically described on Customer Order Schedule (“COS”) attached hereto and made a part hereof.
- Purchase Price. The Customer will pay the full purchase price of as provided on the COS by check delivered to IPITOMY, ACH or by wire transfer to IPITOMY’s account at the time the COS is signed.
- Delivery; Inspection. IPITOMY shall arrange for shipment of the CPE to the Customer at the Customer’s address specified on the signature page hereof, or to such other address as may be agreed upon by both parties. All costs of shipment shall be paid by the Customer. The Customer shall inspect the CPE upon delivery to the Customer. If the Customer does not report any visible defects to the CPE to IPITOMY within 10 days from the date of delivery of the CPE, the Customer’s right to any remedy pursuant to this Agreement or pursuant to any applicable law for such visible defects shall have been waived. No CPE may be returned by Customer for any reason without the prior approval of IPITOMY. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to IPITOMY any CPE that is being returned. Any CPE returned without prior authorization for its return or proper packaging may be refused.
- Warranty. IPITOMY MAKES NO REPRESENTATIONS OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER PREMISE EQUIPMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IPITOMY SHALL HAVE NO LIABILITY FOR STRICT LIABILITY, PRODUCTS LIABILITY OR NEGLIGENCE, WHETHER ACTIVE OR PASSIVE.
(a) Manufacturer’s Warranty. Customer acknowledges that any manufacturer’s or supplier’s warranties with respect to the CPE are passed on to Customer by IPITOMY, to the extent assignable.
(b) Limitation of Remedies. Customer’s exclusive remedy for any defective CPE for which IPITOMY is responsible is limited to the repair or replacement of the defective CPE, if Customer notifies IPITOMY within 10 days of receipt of the CPE. If IPITOMY does not repair or replace a defective CPE for which IPITOMY is responsible, IPITOMY will refund the Purchase Price of the defective CPE. IPITOMY is not responsible for damage to the CPE incurred in shipping or due to misuse or neglect of the CPE.
(c) Limitation of Liability. Even if IPITOMY cannot or does not repair or replace any defective CPE for which IPITOMY is responsible and Customer’s exclusive remedy fails of its essential purpose, IPITOMY’s entire liability shall in no event exceed the purchase price for the defective CPE. IPITOMY shall have no liability for general, consequential, incidental or special damages arising from a defect in any CPE. This warranty shall not cover damage to the CPE caused by unauthorized maintenance or by use of the CPE for a purpose or in a manner contrary to the terms of this Agreement.
- Taxes. The Customer shall comply with all laws and regulations relating to, and shall promptly pay when due, all license fees, registration fees, assessments, charges, and taxes, municipal, state, and federal (excluding, however, any taxes payable in respect to IPITOMY ’s income), which may now or hereafter be imposed upon the ownership, possession, operation, control, use, maintenance, or delivery of the CPE, and shall indemnify and hold IPITOMY harmless against actual or asserted violations, and pay all costs and expenses of every character in connection therewith or arising therefrom.
- Title. Title to the CPE shall vest with the Customer after delivery of the CPE has been accepted pursuant to Section 3. IPITOMY will cooperate with the Customer, and take whatever action may reasonably be necessary, to vest full title to the CPE with the Customer.
- Indemnity. The liability of IPITOMY shall be limited to the applicable state or federal requirements for insuring the safety and efficacy of the CPE. The Customer shall indemnify and hold harmless IPITOMY against any other loss whatsoever which may be occasioned by the installation, operation, or use of the CPE. Such indemnification shall include the cost of any defense which IPITOMY may be put to by virtue of such claim. IPITOMY shall have the right to select counsel and the Customer shall pay the reasonable fees of such counsel.
- Partial Invalidity; Severability. If any provision of this Agreement is in conflict with any statute or rule of law of any state or district in which it may be sought to be enforced, then such provision shall be deemed null and void to the extent that it may conflict therewith, but without invalidating the remaining provisions hereof.
- Entire Agreement. This Agreement contains the entire agreement between the parties. There are no other understandings or agreements between them.
- Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida without regard to its conflict of law provisions.
- Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
- Counterparts. This agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same document.
- Binding Effect. This Agreement shall be binding upon IPITOMY and Customer and their respective legal representatives, successors, and assigns.
Addendum B
Month to Month term – full price
3 Year Term Hosted PBX Extensions – Month 36 free
3 Year Term SIP Trunks – Basic Disaster Recovery Included at no cost.
By Checking the Agreement check box and/or Signature on the IPitomy Cloud Services Application or by using IPitomy Cloud Services you agree to the terms and conditions of the above agreement.