1. This Agreement between the customer (may also be referred to as “You”) and RingSky sets forth the legal rights and obligations governing the RingSky offer, provisioning and delivery of the Services and your use of the Services. This Agreement consists of the SOA, including the following terms and conditions, the general Service terms and conditions (“Web Terms”), the RingSky Acceptable Use Policy (“AUP”), both set forth at WwwRingSky.com/T&Cand Www.RingSky.com/AUP, any Schedules, Addendums, Appendices, and Exhibits attached hereto and applicable tariff (collectively, the “Agreement”). Some Services offered by RingSky under this Agreement are offered pursuant to applicable tariffs, which are filed with applicable regulatory agencies (“Tariffed Services”). In the event of a conflict between this Agreement and a tariff, the tariff shall control. Upon cancellation of any tariff, this Agreement shall control. You acknowledge and agree the Services are offered “as is”, “as available”, “without warranties” and that RingSky’s obligation to provide the Service(s) is subject to its having obtained all of the requisite licenses and consents related thereto. “Service Order” shall collectively refer to any service order(s), authorization form(s) or order form(s) that describes and sets forth the pricing for the Service(s) purchased by Customer. From time to time, Customer may order additional Service(s) by executing a Service Order. Any additional Service Orders agreed by the parties shall be governed by the terms of this Agreement, including the Terms and Conditions.2. Term: The term of the Agreement shall commence on the Start of Billing Date and shall continue thereafter until the end of term, unless earlier terminated in accordance with this Agreement. Unless notified by either party at least sixty (60) days prior to the end of a term, or a renewal period, of an intend not to renew, the Service Term shall automatically renew in successive 1, 2, or 3 year terms based on the original term. In all circumstances (Even on a Month to Month contract, or on a renewal period), a precise cancellation date is required, sixty (60) day prior to the actual cancellation date. If the customer chooses to postpone the cancellation date, a new cancellation order, will need to be placed and an additional sixty (60) day notice will be required.
3. Billing; Payment; Deposit.
A. Billing: Customer is responsible for the payment of all charges for Services furnished by RingSky under the Agreement at rates set forth on the applicable Service Order(s) and, for services provided to Customer, and not included in a Service Order, at RingSky’s then-current standard rates. Rates for international Services are subject to change on five (5) day’s notice from RingSky and new rates are automatically effective on the 6th day from the date of such notice. Customer acknowledges that rates to International Mobile are higher than the standard International rates.
B. Usage Charges: Customer is solely responsible for all usage of the Services, fraudulent or otherwise. Claims of fraudulent usage shall not constitute a valid basis for dispute of an invoice. The parties agree that Customer, and not RingSky shall bear all risk of loss arising from fraudulent or unauthorized use of the Services.RingSky reserves the right, but has no duty, to take any action it deems appropriate to prevent any fraud or abuse in connection with the Services, consistent with applicable federal and state laws and regulations.
C. Unlimited Usage: Unlimited calling plans are meant to be used for ordinary calling and faxing. They are not to be used for Telemarketing, Auto Dialers, Fax Broadcasting, conference bridges, modem poling or any activity that is meant for excessive use. In addition, if the customer has more than one trunk group connected to their PBX, it is not allowed to route all or a portion of outgoing calls to certain destination types, to the lines with unlimited usage. If RingSky Communication deems that it is being used for one of the above, the cost per minute will be $0.05 outbound domestic calling.
Unlimited SIP Trunks or POTS have a cap of 2,000 minutes per trunk and 20,000 minutes, per group of 23 lines. If a location has less than 23 lines, then the limit is 20,000 minutes for the entire location.For the avoidance of doubt, the above mentioned is not allowed, even if less than those amounts are used.
D. Start of Service: The “Start of Service Date shall be, regardless of whether or not Customer uses the Service. a. Five business days of circuit install. b. The date on which RingSky notifies Customer that the Service is installed and available for Customer to use. Whichever occurs earlier.Billing for each Service shall commence on the Start of Service Date (“Billing Commencement Date”).
E. Service Delivery: Customer agrees to cooperate with RingSky to accomplish Service activation by providing commercially reasonable access to the Customer’s premises, when RingSkydeems it to be necessary. RingSky shall not be liable for any damages whatsoever resulting from delays in meeting Service delivery dates requested or specified by Customer, or inability to provide Services. Customer may not cancel this Agreement if there is a delay in installation related to the Services unless such delay is solely due to RingSky and such delay is longer than ninety (90) days beyond the parties agreed State of Service Date; provided however, in no event may Customer cancel if RingSky has agreed to construct or is constructing Communications Facilities to provide Service to Customer.
F. Payment Terms: Customer will be invoiced monthly for all amounts due and owing to RingSky. All invoices shall be deemed final and binding unless Customer notifies RingSky in writing of any alleged discrepancies no later than thirty (30) days from the date of such invoice(s).
All payments are due at midnight of the first day of the following month of the invoice date, (An invoice generated in December is due on January first). The charges and fees under this Agreement are exclusive of any national, state, municipal, or other governmental excise, sales, value-added and occupational taxes and other fees, surcharges and levies, third party installation charges, all of which Customer shall be responsible for and will pay in full. Customer will be deemed to be in default hereunder if payment is not received by the Due Date and, in addition to its other remedies, RingSky may charge Customer interest equal up to 1 1/2% per month on any amount(s) past due.
G. Credit Approval: The provision of Service(s) under this Agreement is contingent upon RingSky’s initial and continuing credit approval of Customer. At any time during the Agreement Term, RingSky may require a deposit or other acceptable form of security if it reasonably deems itself insecure with respect to Customer’s ability to pay. In addition to the termination rights under this Agreement, RingSky may, immediately suspend the Service(s) if Customer fails to comply with these security obligations. Suspension of Service because of Customer’s failure to comply with the security requirements is not considered an interruption or outage for the purposes of this Agreement.
4. Compliance with Laws and Acceptable Use.Customer agrees that it and its end users will comply at all terms with all applicable laws and regulations and will not use the Services in a fraudulent manner or in a manner that exposes RingSky to legal liability. Customer agrees to be bound by the RingSky AUP that is available upon written request by Customer
5. Delivery Method.RingSky retains the right to change, increase or decrease from time to time, in its discretion and without liability to Customer, the methods, processes and/or the suppliers by which RingSky provides Services to Customer, as well as the right to change, add to or delete Service or Service offerings with appropriate notice to Customer.
6. Facility Construction. In the event RingSky is required to construct and/or acquire communication facilities to provide Service to Customer, Customer acknowledges and agrees that RingSky will incur significant costs in provisioning Service to Customer. In addition to any other rights and remedies RingSky may have, Customer agrees that if Customer cancels, terminates or breaches this Agreement after execution but prior to the Termination Date, the Customer will be required to reimburse RingSky for all costs RingSkyincured in constructing and/or acquiring such communication facilities.
7. Disclaimers of Warranty. The service(s) are provided “as is” and “as available” and RingSky makes no warranties or representations, whether express, implied or statutory, regarding the services, software or equipment or any results to be achieved through use of the service(s), software or equipment. This disclaimer includes, but is not limited to, any warranties of merchantability, quality, fitness for a particular purpose, non-infringement and title, and all implied warranties arising from a course of dealing, usage, or trade practice. RingSky specifically disclaims any responsibility for the accuracy or quality of information obtained through its service(s), the use of which is at customer’s own risk.
8. Default; Termination.
A. Termination Liability: Should Customer choose to terminate any service offering after the notification of the install date and prior to the expiration of the term. Customer is responsible for payment of the monthly recurring charges (“MRCs”) as stated in the SOA times the number of months remaining in the For usage-based Services, Customer shall pay an additional early termination charge that shall be equal to 75% of Customer’s average monthly usage for the three (3) months prior to the termination month (or such lesser period if fewer than three (3) months of Service were utilized), times the number of months remaining in the Term of the Agreement.
B. Termination prior to install: Customer agrees that if Customer cancels, terminates or breaches this Agreement after execution of the Agreement but prior to notification of install date, Customer shall pay RingSky an early termination charge of three (3) months of the anticipated monthly recurring charges, along with all nonrecurring charges (e.g., any charges incurred by RingSky to provide Service to Customer.
C. Default:Except as otherwise required by law or applicable regulation, if, at any time during a term, Customer: (a) fails to pay any amount required under this Agreement or any other agreement with RingSky when due and such failure continues for ten (10) days; (b) fails to perform any material obligation under this Agreement which failure is not remedied within thirty (30) days after receipt of written notice from RingSky (unless a shorter notice period is expressly set forth in the Agreement or notice, in which case the shorter notice period shall apply); (c) becomes Insolvent; or (d) cancels or terminates Service, including any part of a service offering at any time before completed of the Service Term or any renewal Term, then RingSky may elect to pursue one or more of the following courses of action, as applicable: (i) terminate in whole or in part Customer’s Service, whereupon Customer shall be liable and shall pay to RingSky, at RingSky sole option, and within ten (10) days of such termination, (i) the termination charges set forth in the applicable Service Order or Web Terms, or (ii) the cumulative total of the balance of all monthly charges remaining on this Agreement through the end of the applicable Service Term(s); plus (z) any charges accrued but unpaid as of the effective date of termination.
All of the preceding shall be immediately due and payable by Customer. Termination by RingSky,shall not preclude RingSkyfrom pursuing any other rights or remedies available to it at law or in equity. Customer acknowledges that the amounts payable pursuant to this Section are equitable compensation to RingSky and are intended to reasonably compensate RingSky for the losses which are occasioned by Customer’s failure to honor Customer’s obligations hereunder and not intended as a penalty.
9. Indemnification. Customer shall indemnify, defend and hold RingSky its affiliates, officers, directors, licensees, licensers, and vendors harmless from any and all claims, losses, damages and expenses, including, without limitation, reasonable attorney’s fees and court costs, or liabilities arising from or related to: (i) Service Misuse or a violation of any other provision of this Agreement; (ii)any claim of infringement of any intellectual property or other proprietary interest resulting from the possession or use of any Service(s), software or equipment; (iii) the Content; (iv) any acts or omissions of Customer, its employees, agents, contractors, invitees, licensees, visitors, and/or customer/end-users; and/or (v) any injury or damage to the person, property, or business of RingSky, its employees, agents, contractors, invitees, licensees, visitors, and/or customer(s)/end-user(s).
10. Limitation on liability. A. With respect to claims or suits by customer, or any others, for damages relating to or arising out of acts or omissions under this agreement and/or services provided hereunder, RingSky’s liability for service interruptions, failures or other service problems, customer’s sole and exclusive remedy shall be limited to credit allowances as expressly provided in the applicable tariffs or as otherwise set forth in the web terms found at (www.RingSky.com/t&c). B. In no event shall RingSky, its affiliates, service providers, suppliers or agents be liable to customer or any third party for any indirect, incidental, special, punitive or consequential damages or for any lost or imputed profits or revenues, lost data or cost of procurement of substitute services resulting from delays, non-deliveries, mis-deliveries or service interruption, however caused, arising from or related to the service(s) or this agreement, regardless of the legal theory under which such liability is asserted, whether breach of warranty, indemnification, negligence, strict liability or otherwise, and whether liability is asserted in contract, tort or otherwise, and regardless of whether RingSky has been advised of the possibility of any such liability, loss or damage. C. The total aggregate liability of DynaLink and its suppliers to customer and/or any third party in connection with this agreement shall be limited to direct damages proven by customer; such direct damages not to exceed an amount equal to the total net payments received by RingSky for the affected service which gives rise to such liability in the three month period immediately preceding the date in which the claim arises. D. The parties acknowledge that the limitations referenced in this Section are material terms to this Agreement. Customer acknowledges that RingSky has set its prices, and other charges in reliance on the foregoing limitations of liability, which form an essential basis of the bargain between the parties.
11. Notices. Any notice required to be given hereunder shall be in writing and shall be deemed to have been delivered when (i) sent by facsimile, and electronically confirmed, (ii) Delivered via United States mail (registered or certified mail), return receipt requested, with adequate postage affixed, or (iii) delivered via a national overnight courier service and addressed to the persons set forth herein. Notice for monetary default may be sent by e-mail, facsimile, or other written format.
12. Severability / Waiver. In the event any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. RingSky’s failure to insist upon or to enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
13. Miscellaneous. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby and supersedes any other prior or simultaneous agreement related to such matters. Any modification to the Agreement must be signed by a senior management of RingSky. Customer may not assign this Agreement or any portion hereof without RingSky’s prior written consent, which consent shall not be unreasonably withheld. Any such assignment without RingSky’s prior written consent shall be void. The parties agree that any dispute arising under this Agreement shall be governed by and construed in accordance with the laws of the State of New York, except for its principals for resolving conflicts of law. The parties agree that any disputes arising under this Agreement shall be resolved in arbitration, within the city of New York. All provisions in this Agreement, which by their nature are intended to survive expiration or termination shall survive any expiration or termination of this Agreement. In the event of a conflict between or among the terms in this Agreement, the Service Order(s), the Service Addenda, and any other document made a part hereof, the documents shall control in the following order unless otherwise specifically set forth in a Service Addendum: the Service Order with the latest date, the AUP, the Service Addendum, this Agreement. The Web Terms, AUP and tariffs may be modified from time to time at RingSky’s discretion or as required by applicable law. Customer agrees to review such changed items from time to time and be bound by such changes, as they pertain to your particular services. Unless subject to tariffs or the terms of this agreement, RingSky may not unilaterally change the rates, fees or charges set forth herein without customer consent. If customer determines changes to the AUP and/or tariffs will materially and detrimentally affect customer’s service or rights and are not mandated by law or regulation, customer may provide RingSkywritten notice of objection. RingSky will review such notification and if the parties cannot come to an agreement within thirty (30) days, customer may terminate such service(s) without incurring charges for early termination, provided that customer’s account is current. If customer uses the services, it is deemed that the customer has accepted the terms and conditions mentioned hereon.
14. Equipment: installed by/for RingSky for use of the service, including but not limited to equipment, that is billed monthly to the customer is the property of RingSky and must be returned upon termination of such services. If not returned within five (5) business days, customer will be liable to pay RingSky whatever loss was resulted for the loss of the equipment.
15. Equipment Warrantee. Any Customer Premises Equipment (“CPE”) that is provided to the customer, has a one (1) year replacement or repair (at RingSky’s discretion) warranty, for manufacturer’s defects. At RingSky’s discretion, any equipment supplied as replacement equipment for a CPE with manufacturer’s defects may be new, recertified, or refurbished and is equivalent in functionality to new units. Any CPE supplied as a replacement CPE will carry the remainder of the one (1) year warranty described above. RingSky shall have no obligation or liability in connection with any equipment not purchased through RingSky and configured by RingSky, its Vendors or Contractors, or for any abuse, reconfiguration, repair or misuse of any equipment by any party other than RingSky or its Vendors or Contractors. After the initial year, the customer shall be liable to pay for replacement equipment including standard wear and tear.