Terms and Conditions

The following Terms and Conditions are incorporated into the signed Service Agreement between you (“You” or “Customer”) and Priority Communication Services, Inc. DBA Telecloud (“TeleCloud”) that refers to these Terms and Conditions. These Terms and Conditions, with the signed Service Agreement, constitute a legal agreement that details your rights and obligations as a customer of TeleCloud.

Please review these Terms and Conditions. By signing the Service Agreement referencing these Terms and Conditions, you agree to be bound by the Terms and Conditions, including the Acceptable Use Policy, set forth in this document. Moreover, these Terms and Conditions supersede any and all written alterations to the Service Agreement referencing these Terms and Conditions unless such suggested alterations are specifically initialed by an authorized TeleCloud representative.

HOSTED VOICE TERMS AND CONDITIONS

SCOPE OF SERVICES

TeleCloud’s Service is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol (‘IP’) and carried, in part, over high-speed Internet access, also known as broadband Internet service. This service may be generically referred to as ‘voice over IP’. It is separate and distinct from standard Local, Local Toll, and Long-Distance services. ‘Service’ or ‘Services’ includes direct-dialed Voice over IP calling and certain calling and call management features or advanced features associated with the Service, including additional features or advanced features which may be offered at additional costs, and which TeleCloud, in its sole discretion, may add, modify, or delete from time to time.

SOFTWARE LICENSE

A. License to Software and Services. TeleCloud grants Customer a nonexclusive, nontransferable license to use software provided under this Agreement solely as necessary for Customer’s internal business purposes, provided Customer complies with the restrictions set forth below.  Such internal business purposes do not include use by any third party except as specifically authorized in this Agreement, and Customer shall not permit any such use.  Certain software or services TeleCloud provides to Customer may contain third-party software (“Third-Party Software”), including open-source software. Use of such Third-Party Software may be governed by separate copyright notices and license provisions, which may be found or identified in documentation or on other media delivered with the Third-Party Software and which are incorporated by reference into this license. Notwithstanding any other terms in this Section, such provisions shall govern the use of Third-Party Software. TeleCloud shall provide or make available to Customer all end user license agreements pertaining to Deliverables (including Third-Party Software) or plug-ins to Software that are provided in connection with the Services. Customer agrees to comply with the terms and conditions of all end user license agreements that are provided or made available to Customer for any Software (including Third-Party Software) or plug-ins to such Software distributed in connection with the Services. All end user licenses shall remain in effect for so long as the Services are provided by TeleCloud, but immediately terminate on the date that the Services expire or this Agreement is terminated or are otherwise terminated in accordance with such Third-Party Software licenses.

B. Restrictions on Deliverables Rights. Customer shall not distribute, publicly display, publicly perform, or sublicense any software (including, without limitation, any derivative work thereof). TeleCloud retains ownership of all software and deliverables it provides, and Customer receives no right, title, or interest in such software or deliverables except as specifically set forth herein.  Copies of the software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself, and further agrees that its license is subject to all terms and conditions of any license to the software to the extent it is third-party-created software to which TeleCloud grants a sub-license hereunder. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the software or deliverables; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the software or deliverables; or (c) use the software or deliverables in any way forbidden herein. 

SERVICE DISTINCTIONS

The VoIP Service is provided on a best effort basis, as things beyond TeleCloud’s control may affect the Service, such as power outages, fluctuations in the speed and quality of the Internet, and your underlying broadband service. TeleCloud’s phone services are not related to and are not responsible for network-related issues at the customer’s location either caused by local network problems or by problems caused by the internet service provider. If the customer requests assistance from TeleCloud to solve issues related to their local network, which is beyond the scope of the Voice Service being provided, there will be additional service charges incurred while troubleshooting. This applies to both on-site field technicians and remote technical support. Other things may affect Service, such as maintenance. TeleCloud will act in good faith to minimize disruptions to your use of and access to the VoIP Service. Important distinctions exist between telecommunications service and the Service offerings that we provide. The Service is subject to regulatory treatment different than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

SERVICE REQUIREMENTS

TeleCloud’s Service requires: (a) specialized customer premise equipment called a VoIP optimized router, that can be obtained through TeleCloud, to connect to your broadband connection and (b) a broadband connection via DSL, cable, fiber optic, cellular or other wireless broadband with capability of at least 90 Kbps upstream and downstream speed (per hosted extension on the network) that you have a right to use at your own expense. Since voice over IP is dependent on the broadband connection, the availability of an adequate power supply, and correct configuration, TeleCloud does not guarantee that the Service will be continuous or error-free. In addition, Service may, from time to time, be interrupted for equipment, network, or facility upgrades or modifications.

By agreeing to accept equipment and service with TeleCloud, the customer confirms that the existing network infrastructure in all locations where equipment is to be placed meets the network requirements needed for the services rendered. These network requirements apply to any equipment and physical infrastructure that is required to facilitate the proper functioning of the equipment provided by TeleCloud including but not limited to the above-mentioned VoIP optimized router, broadband connection suitable for VoIP, network switches sufficient for supplying an internet connection to all provided equipment, and active Cat5 or Cat6 Network cables to all provided equipment from the active network switch. The customer understands that if any such wiring or equipment are provided by TeleCloud, there will be additional charges related to such equipment as well as the installation of said equipment at the customer’s premise. These charges will be in addition to any charges that are already included in the customer’s existing purchase order if it is found that the needed equipment or wiring is required after the initial proposal, lease, or purchase order was signed and will be billed separately.

Authorization to Liaise with current carrier

The Customer hereby authorizes TeleCloud to act as its agent and representative to request and obtain information from the Customer’s current carrier on its behalf in connection with the Customer’s transfer of service to TeleCloud. This authorization shall only remain limited to, the authority to request and obtain information about the Customer’s phone number assignments, configurations and rollover details, contract end dates, and early termination penalties. The Customer agrees to provide TeleCloud with all information and assistance that TeleCloud may reasonably request in order to carry out the Customer’s authorization under this clause.

Right to opt-out. The Customer may opt out of this authorization at any time by providing written notice to TeleCloud. Upon receipt of such notice, TeleCloud will immediately cease to request or obtain information from the Customer’s current carrier on the Customer’s behalf.

EQUIPMENT LEASING AND CREDIT APPROVAL

A customer may choose to lease equipment in order to utilize TeleCloud’s Voip Service. In the event customer elects not to independently purchase all equipment and devices needed to utilize TeleCloud’s Voip services, for which it shall remain solely responsible throughout the Term, a customer may lease such equipment from a third party (a “Third-Party Vendor”) or TeleCloud. Your Service Agreement or any subsequent signed amendment will reflect the identity of the party from whom you lease any equipment in connection with this Agreement, and the specific equipment or devices being leased from such party. When a customer is leasing any equipment from a Third-Party Vendor related to the use of TeleCloud’s Voip service, the leasing or rental agreement between the customer and the Third-Party Vendor must be signed. The leasing or rental agreement between the customer and the Third-Party Vendor, constitutes a separate agreement between the Third-Party Vendor and the customer, and the Third-Party Vendor shall be solely responsible and liable for its obligations under that third-party lease agreement you enter into with it, this includes the terms and conditions for the agreement between the customer and 3rd Party finance company that is included in the TeleCloud Service Agreement (if applicable). You understand and agree that if you default on such Third-Party Vendor agreement and such third party repossesses your leased equipment, you may not be able to use TeleCloud’s Voip services, but your duties under this Agreement, including your payment obligations hereunder, will remain. In the event of a conflict between these Terms and Conditions and the leasing or rental agreement between the Third-Party Vendor and the customer, the leasing or rental agreement between the Third-Party Vendor and the customer will control to the extent it applies to the equipment the customer is leasing from the Third-Party Vendor. When a customer is leasing any equipment from TeleCloud through an “in-house” lease, rental, or other similar financing arrangement, these Terms and Conditions shall control. In the event a customer is simultaneously leasing equipment from a Third-Party Vendor and TeleCloud, each rentor’s lease terms shall apply to the respective equipment being leased by the customer from such company.

A lease or rental application that has been approved by a Third-Party Vendor will obligate the customer to the billing guidelines for that Third-Party Vendor. When the customer leases the equipment from a Third-Party Vendor, TeleCloud will continue to provide support for such equipment, the PBX system being leased as stated by the proposal signed by the customer, and for the specified term, if applicable, under this Agreement

If, however, a customer is not approved for financing with a Third-Party Vendor, TeleCloud may choose to accept or deny the customer’s request to lease the equipment and PBX system from TeleCloud. If approved by TeleCloud for an “in-house” lease, rental, or other similar financing arrangement, TeleCloud will hold all signers listed on the application and leasing documents financially responsible for the contract(s) signed. This includes, but is not limited to, the Company listed as the customer in all documents as well as any person(s) signing a personal guarantee for the product(s) provided by TeleCloud to the customer.

If a customer is approved for an “in-house” lease, the customer agrees to pay the first and last month’s payment as well as any fees associated with Promotions that were not approved due to credit unworthiness as outlined in the PROMOTIONS & REBATES section of these terms. These charges will be applied on the first month’s bill.If a customer enters into an “in-house” lease with TeleCloud, TeleCloud’s liability shall be strictly limited to equipment replacement in case of equipment failure. TeleCloud offers a 72 hour replacement policy on leased equipment however it is the customer’s responsibility to procure backup equipment in case of the failure of leased equipment. If TeleCloud cannot replace leased equipment within 72 hours, customer may receive a one month credit for the equipment lease. Customer understands and agrees that this is customer’s sole and exclusive remedy when leasing equipment from TeleCloud.

RECOMMENDED SERVICE PARAMETERS

TeleCloud’s Service will provide optimal (but not guaranteed) service quality to any number of simultaneous calls, provided each call has a minimum of 90Kbps of upstream and downstream Internet bandwidth available for the duration of each call. TeleCloud does not guarantee the performance, routing, or throughput, either expressly or implied, of any data circuit(s) connectivity with regards to the Public Internet and/or Internet backbone(s). While the voice technology we provide traditionally has functioned at acceptable quality levels when utilizing Public Internet data service, it is susceptible to occasional lapses in phone sound quality and/or other service-degrading issues that are beyond TeleCloud’s control.

EMERGENCY SERVICES – 911 CALLING

A. Non-Availability of Traditional 911 or E911 Calling Service: TeleCloud’s E911 Service enables customers to communicate with emergency services by dialing 911. However, TeleCloud 911 Service is different in important ways from traditional landline 911 and cellular/wireless 911. The differences are detailed in this section and customer agrees to notify any potential user or agent of the services, who may place calls using customer’s services, of the 911 limitations described herein. If not already included with the rented VoIP equipment, TeleCloud will provide customer with warning labels regarding the limitations or unavailability of 911 emergency dialing. Customer agrees to place a label on or near each telephone or other customer equipment on which the services may be utilized.

B. Description of Emergency Dialing Capabilities: When customer dials 911, the 911 call is routed from TeleCloud’s network to the Public Safety Answering Point (“PSAP”) or local emergency service personnel designated for the physical address customer provided to TeleCloud at the time of activation of Service (as may be updated by customer). In most cases, the dispatcher at the PSAP will also receive customer’s telephone number and address. In certain situations, discussed below, the dispatcher at the PSAP will not receive the customer’s telephone number and address.

1. Registered Location

A. Registered Location Required: All customers are required to register the physical location of their service when placing a sales order with TeleCloud. Customer agrees to ensure that the physical location of its Service is correct, and to immediately update such location whenever the physical location of the Service changes. Customer acknowledges and understands that any location information passed to emergency personnel by TeleCloud will be based upon the physical location information provided by the customer.

B. Use of Service Outside The United States: Customer acknowledges that any caller using the service from any location outside the United States will be unable to use or access E911 Service or place any E911 emergency calls.

C. Failure to Designate and Identify the Correct Physical Address: Customer’s failure to provide and keep current customer’s correct physical location(s) will result in any 911 call or other emergency communication made by customer or from customer’s actual location (if different from the location previously supplied to TeleCloud by customer) being routed to the incorrect local emergency service provider. Customer’s physical location(s) may NOT be a post office box, mail drop or similar address. Neither TeleCloud nor customer shall assume under any circumstances that customer’s physical office location for E911 calling purposes is the same as customer’s billing address for receipt of invoices.

2. Service Outage

A. Power Failure or Disruption: Emergency dialing will not function in the event of a power failure or disruption. If there is an interruption in the power supply, a power surge or a power failure, the service and emergency dialing may not function until power is restored. A power failure, power surge or power disruption may require customer to reset or reconfigure equipment prior to using the service or being able to make emergency 911 calls.

B. Service Suspension or Termination by TeleCloud: A service outage or suspension (including, without limitation, suspension of service due to billing issues or delinquent or unpaid invoices) or termination of service by TeleCloud will prevent ALL Service, including the ability to make emergency 911 calls.

C. Other Service Outages: If there is a service outage for ANY reason, such outage will prevent ALL Service, including the ability to make emergency 911 calls. Such outage may occur for a variety of reasons, including, without limitation, the reasons described elsewhere in these Terms.

3. Automated Number Identification

Due to limitations at PSAPs, it may not be possible for the PSAP and the local emergency personnel to identify customer’s telephone number when customer dials 911 via TeleCloud’s E911 Service. PSAP and emergency personnel may be unable to identify customer’s telephone number in order to call customer back in the event that an emergency call is unable to be completed, is dropped or disconnected, or if a caller is unable to speak to provide the telephone number from which the caller is calling, and/or if the service is not operational for any reason including, without limitation, the reasons and situations listed elsewhere in these Terms.

4. Automated Location Identification

Due to limitations at PSAPs, it may not be possible to transmit identification of the customer’s physical location address to the PSAP and local emergency personnel for customer’s area when customer or any caller at customer’s Premises dials 911. A caller must state the nature of the emergency promptly and clearly, including the caller’s specific physical location, as PSAP and emergency personnel may NOT have this information. PSAP and emergency personnel may not be able to find a caller’s location if the call is unable to be completed, is dropped, or disconnected, or if the caller is unable to speak to provide the location from which the caller is calling and/or if the Service is not operational for any reason including, without limitation, those reasons and situations listed elsewhere in these Terms.

5. Limitation of Liability and Indemnification

CUSTOMER ACKNOWLEDGES AND AGREES THAT TELECLOUD VOIP DISCLAIMS ANY AND ALL LIABILITY FOR ANY SERVICE OUTAGE OR INABILITY TO COMPLETE EMERGENCY 911 CALLS FROM ANY CUSTOMER LINE OR CUSTOMER PREMISES OR TO ACCESS EMERGENCY SERVICE PERSONNEL. CUSTOMER SHALL PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS TELECLOUD VOIP, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, CONTRACTORS, AND AGENTS AND ANY OTHER SERVICE PROVIDER THAT FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICE, FROM ANY AND ALL CLAIMS, LAWSUITS, LOSSES, DAMAGES, LIABILITY, FINES, PENALTIES, COSTS, AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES AND COSTS, ARISING FROM, OR RELATED TO, ANY ABSENCE, FAILURE, OR OUTAGE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, EMERGENCY 911 CALLING AND/OR INABILITY OF CUSTOMER OR ANY CUSTOMER EMPLOYEE, THIRD PERSON OR PARTY, OR USER OF TELECLOUD VOIP’S SERVICE TO BE ABLE TO CALL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL. IN NO EVENT SHALL TELECLOUD VOIP BE LIABLE TO A CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES RELATED TO A CUSTOMER’S (OR ANY CUSTOMER’S EMPLOYEE, AGENT, OR CONTRACTOR, OR THIRD PERSON OR THIRD PARTY OR USER OF TELECLOUD VOIP’S SERVICE) USE OF OR INABILITY TO USE E911 SERVICES.

INCOMPATIBILITY WITH FAX, CREDIT CARD, AND SECURITY SYSTEMS

The Service may not be fully compatible with all credit card machines, and security systems.  You may be required to maintain a telephone connection in order to use some fax, credit card, or alarm monitoring functions for any security or fire alarm system installed in your business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.

CERTAIN BROADBAND AND CABLE MODEM SERVICES

You acknowledge that there may be some broadband services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

SERVICE TERM, RENEWAL, TERMINATION, AND RENTAL/LEASE RETURN INFORMATION

The initial term (“Initial Term”) of this Agreement shall be equal to the term stated in the Service Agreement, TeleCloud Equipment Rental or TeleCloud Lease Agreement (typically 3, 4, or 5 Years), whichever is longest. Unless written notice is given by TeleCloud, or proper notice, as described below, is given by You, no sooner than ninety (90) days and at least sixty (60) days prior to the expiration of the Initial Term, this Agreement shall automatically renew for an additional term that is identical to the length of the Initial Term (“Renewal Term”).  While the term of an equipment rental or leasing agreement between a Third-Party Vendor and a customer is controlling as to such subject, that term will not change the Initial Term or Renewal Term of a Service Agreement, Equipment Rental or Lease Agreement between TeleCloud and the customer.  

Should you opt to terminate your TeleCloud service(s), no sooner than ninety (90) days and at least sixty (60) days prior to the expiration of the Initial Term you must contact TeleCloud via telephone on the effective date with your termination request AND verify the termination request by either emailing “scheduling@telecloudvoip.com” and retaining a confirmed read receipt or by sending your request via certified mail. All termination requests will be processed on the date the request is received, provided TeleCloud has received proper notification. This applies to both total account and single service terminations. Broadband services are also subject to TeleCloud’s disconnection policy.

Service terms may be extended for additional monthly increments due to specific offerings or promotional terms. Service terms are required to offset associated costs of service acquisition, and for TeleCloud to maintain innovative broadband policies and service features for a sustained period. Your initial service term begins once all our equipment and services relating to the order have been installed, and become operational, referred to as your Installation or Activation Date. This Activation Date is not dependent upon the services being actively used by the customer including, but not limited to, cases in which porting of the customer’s phone numbers from their old provider has not yet taken place. Because of this potential overlap in service, there will be a time period in which the customer may be responsible for paying 2 carriers, until the porting period is complete. Prior to the Activation Date, if only partial services have been activated, but not all, the customer will be billed on a month-to-month basis for only those services received until all the requested equipment and services have been activated (the Activation Date). For any months prior to the Activation Date where only some services, but not all, have been activated and the customer is billed for these partial services, these months will not be included as part of the Initial Term. The Initial Term will only be deemed to have commenced upon the Activation Date. Any promotions related to free or deferred payments will begin on the date all services have been successfully activated.

In cases where an Equipment Rental or Lease Agreement between a Third-Party Vendor and the customer is integrated into these Terms and Conditions, the Service Term begins on the commencement date of such Third-Party Vendor Equipment Rental or Lease Agreement.  Upon completion of the Third-Party Vendor Equipment Rental or Lease Agreement, TeleCloud will begin billing the “Full MRC” or full amount of the VoIP Package charge and the Hosted PBX Per Station Charge (rental or lease payment). The customer should work with TeleCloud to either replace or purchase the equipment listed on the Third-Party Vendor Equipment Rental or Lease Agreement for its then Fair Market Value.  If the customer enters into a renewal term of this Agreement, no equipment purchase will be necessary. TeleCloud will deliver any new leased equipment and ensure that it is in proper working order upon the commencement of such renewal term.

The following applies in the event you are leasing equipment from TeleCloud. If You default during the Initial Term or the Initial Term ends without a renewal, You are required to return the leased equipment to TeleCloud. In a scenario where the Initial Term ends and You enter a Renewal Term, You will be continuing to lease the equipment from TeleCloud, and TeleCloud will continue to provide services for the equipment and replacing the equipment as needed (pursuant to TeleCloud’s Equipment & Warranty Disclaimers provision). Therefore, upon the end of a Renewal Term or upon Your default during a Renewal Term, You are still required to return equipment You are leasing from TeleCloud to TeleCloud.

INSTALLATION PROCEDURE POLICY

TeleCloud is not responsible for loss of income or time due to an order not being completed within the time frame desired, service outages, missed CLEC or ILEC appointments, and/or Trouble Ticket dispatches.

TRIAL PERIOD

TeleCloud may allow customers to try its services for a pre-negotiated period of time with no contractual obligation if written notice is sent within the specified timeframe.  In the event the customer decides to cancel within the trial period, they will be billed for any services rendered during the trial period, including but not limited to:  Installation charges, trip charges, pro-rated billing for use of services, porting fees, infrastructure upgrades, etc.

PROMOTIONS & REBATES

Any promotions offered to the customer on the proposal are subject to credit approval. These promotions include but are not limited to payment deferrals, free months, trial periods, waived installation charges, rebates, and waived equipment charges. Customer will be notified via email or phone before installation occurs as to any outstanding charges relating to these promotions.

Rebate forms must be submitted no later than the specified period listed on the rebate form. There is a Limit of one rebate per proposal regardless of how many company locations are listed. Offers valid at TeleCloud only. Offers not valid with any other offer or rebate. Offers void if correct proof of purchase, official forms and complete information are not included. Offers are not assignable or transferable to any other customer, TeleCloud contract, or purchase. Rebate check expires if not cashed within 90 days of check date, after which TeleCloud will have no further obligation to fulfill the rebate. TeleCloud is not responsible for postage due, delayed mail, or for lost, stolen, destroyed, misdirected checks, or for any missing information provided by customer to TeleCloud. Purchases cancelled after the Rebate is issued will be subject to all fees as outlined in the Termination-Cancellation Policy below in addition to the return of the Rebate amount. Consumer is responsible for any state, local or federal sales tax due and, the sales tax due may not be reimbursed or calculated as part of rebate funds due to the extent it has already been remitted to the applicable tax authority. Fraudulent submissions could result in federal prosecution under mail fraud statutes. Allow 6-8 weeks for receipt of reward. For Rebate inquiries call, 1-682-804-7613.

CUSTOMER RELOCATION

In the case of a change in customer’s primary physical location where the equipment (phones, router, data switch, battery backup) is located, TeleCloud requires a 30 day notice to initiate a move of service to the new location. Customer may elect to move the equipment itself or use a third party to move the phones and equipment. If customer hires TeleCloud to move the equipment, normal hourly billing rates will apply. 

Customer understands that a request to move service from the customer’s primary physical location to another location that TeleCloud, at its sole discretion, determines cannot be economically served by TeleCloud, shall constitute termination of service by the customer or the customer may incur a relocation charge, which TeleCloud, at its sole discretion, will determine the value of. When TeleCloud determines the requested location cannot be economically served by TeleCloud, TeleCloud, at its sole discretion, will determine whether it shall constitute a termination of service by the customer or if a relocation charge is appropriate. If TeleCloud determines the relocation constitutes termination of service by the customer, the customer is responsible to TeleCloud for all outstanding nonrecurring fees; all outstanding recurring fees; 100% of the Monthly Fees for each month, if any, remaining in the Term; and if the customer is leasing equipment from TeleCloud, the customer will be responsible for returning the leased equipment to TeleCloud or for paying the value of the equipment under the terms of the lease agreement to TeleCloud.    

LOCAL NUMBER PORTABILITY

In the event you are not utilizing a new phone number assigned to You by TeleCloud for your TeleCloud Services, but rather are transferring an existing phone number from another carrier to TeleCloud, the following terms and conditions shall apply:

You hereby authorize TeleCloud to process your order for TeleCloud Hosted Services, to complete an appropriate Letter of Authorization authorizing TeleCloud to port in your affected phone numbers from your existing provider, and to notify your previous telephone company of your decision to transfer your local, local toll, and long distance services to TeleCloud Hosted Services, and represent that you are authorized to take this action; and You agree that, if you do not transfer all of your numbers to TeleCloud, you are responsible to cancel all non-transferred numbers with that carrier.

You agree and acknowledge that if you set up your phone equipment prior to the date that the number transfer becomes effective (“Port Effective Date”), you may be able to only make outgoing calls. In this event, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able to both make and receive calls using the TeleCloud Hosted Services.

You agree and acknowledge that if your phone equipment is not yet activated as of the Port Effective Date, your existing phone service for the number you are transferring may be interrupted and you may have no service for that telephone number. To avoid an interruption in your phone service, you must install the TeleCloud phone equipment prior to the Port Effective Date. It is the customer’s responsibility to ensure that their previous phone company takes all steps necessary to effectuate the port out process concerning customer’s phone number(s) that it wishes to port in to its TeleCloud service in a timely manner.  TeleCloud shall assist the customer during this transition but is not responsible for any of the prior carrier’s service charges should customer’s previous phone company introduce a delay or expense for any reason.

NUMBER TRANSFER ON SERVICE TERMINATION

TeleCloud may receive requests from other telephony providers (Requesting Party) acting as agents on your behalf to port a telephone number currently assigned to you, to a third-party provider (“Port-Out”). TeleCloud will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and TeleCloud’s or its vendors’ standard operating procedures. Note that you will be responsible for all monthly, usage, and disconnect fees associated with your Service until the Port-Out date of completion or the last date of your service period, whichever comes last.

Completing a port-out of a phone number(s) that was being serviced on the TeleCloud platform does not constitute a cancelation of service nor does it negate the customer of the responsibility to fulfill the terms of the rental or lease agreement to which they have agreed and have been bound. If a port-out occurs while the customer is still within the lease or rental period, the customer will still be fully responsible for the terms of that lease or rental even if that means incurring double charges from TeleCloud and their new phone carrier.

ACCOUNT BILLING & INVOICING

This section applies to all of TeleCloud’s billing and invoicing, regardless of the specific services to which customer subscribes.  TeleCloud reserves the right to perform a credit check as part of the qualification process prior to order placement and to either cancel the order without liability to either party or require prepayment of certain charges based on the results of this check, and Customer agrees to provide all information readonably requested by TeleCloud to perform such qualification.

Billing for the Term will commence on your Activation Date.  If installation and service inception occur in the middle of a billing month, where TeleCloud ordinarily bills on the 15th of each month, you will pay the pro-rated amount due for that partial billing cycle, and then normal billing will begin upon the first full month of TeleCloud’s billing cycle.  TeleCloud bills prepaid amounts due for the forthcoming monthly billing cycle seven days before that month’s billing cycle (and thus ordinarily on the 8th day of the month). You will be financially responsible for all service time thereafter unless TeleCloud is notified within a timely manner of an outstanding issue which TeleCloud, at its sole discretion, deems to justify service credit.  All additions to your existing service package are recognized as non-refundable, regardless of usage. Fees may include monthly recurring charges, and other non-recurring charges including, but not limited to, activation and installation fees, porting fees, early termination fees, federal, state, and local taxes, regulatory compliance fees (“Regulatory Recovery Fees”), and government-mandated pass through fees such as, but not limited to, Universal Service Fund fees (“USF”) and e911 fees. 

By adding your credit card to the Proposal or Sales Order when signing up for services, you are agreeing to auto-pay for all existing and future charges, and that TeleCloud may assess all charges then due on the applicable payment method you have placed on file with it. Bill Accounts that utilize auto payment through a credit card will have all payments charged to the credit card for TeleCloud Services.  Each month we will bill your card account for all charges arising during the upcoming billing cycle, plus all other usage-sensitive and other additional charges incurred during the prior billing cycle. Your initial use of the Service authorizes TeleCloud to charge the credit card account that you provided to us when you subscribed for the Service. This will include any changed credit card account information given to us if the card expires or is replaced. This authorization will remain valid until 30 days after we receive your written notice terminating our authority to charge your credit card. We may terminate your Service at any time at our sole discretion if any charge to the credit card account that we have on file for you is declined or reversed, or in case of any other non-payment of account charges. In the event of any declined or reversed credit card payments, or in case of any other non-payment of account charges, you will remain fully liable to TeleCloud for all charges accrued before termination and for all charges incurred by TeleCloud resulting from  your non-payment. These include, but are not limited to, late fees equal to the lesser of 1.5% per month or the maximum allowed by law, declined or reversed credit card expenses, a $200 returned check fee in the event TeleCloud accepts any such check, and all costs of collecting delinquent amounts due hereunder, including reasonable attorney’s fees, costs, expert fees, and other disbursements incurred in enforcing TeleCloud’s rights under this Agreement. This is in addition to any other remedies that may be available to us by law. Accounts not setup utilizing auto payment will be charged a flat fee of $50 per occurrence.

For every month outstanding invoices remain unpaid, a $50 fee will be applied and added to monies owed, or the maximum charge allowed by law, if lower. 

TELECLOUD VOIP DOES NOT ACCEPT PAPER CHECKS AS A FORM OF PAYMENT.

You are responsible for, and shall pay any applicable federal, state, municipal, local, or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or any Equipment. Such amounts are in addition to payment for the Service or Equipment and will be billed to your account. If you are exempt from payment of such taxes, you must provide us with an original government-issued certificate attesting to tax-exempt status.  In such a case, your tax exemption will apply only from and after the date we receive the qualifying tax exempt certificate.  If we honor your tax exempt certificate, you agree to defend, indemnify, and hold us harmless from and against any claims or penalties imposed against us by any taxing authorities in connection with your subscription for the Service or your use thereof. TeleCloud charges for its service continuously, regardless of whether or not you are using it, because we continue to maintain your connection, provisioning, and telephone interoperability, and keep voicemails and files you have saved in your account on our servers. This is also true of accounts that are frozen (denied access) due to non-payment.

CALL RECORDING

Call recording presents special technical challenges.  Therefore, most hosted PBX providers do not offer call recording services.  Call recordings may be intentionally or unintentionally deleted or permanently lost due to the failure of data storage systems or other equipment. TeleCloud provides call recording capabilities on a best effort basis only, and does not make any warranty concerning the reliability, availability, or audibility of any call recording made on the TeleCloud hosted PBX system.  Call recording may present special legal requirements, and you acknowledge that it is your responsibility to research and comply with any Federal, State, or local laws governing the creation or usage of call recordings, call monitoring, or any other feature that may require legal or regulatory compliance.  Some states require that all parties to a recorded telephone conversation be notified of the recording, and it is your responsibility to ensure that appropriate audio announcements are used whenever required to ensure legal compliance.

TERMINATION–CANCELLATION POLICY

This termination policy is effective only if the customer chooses to purchase the equipment, but it does not allow for termination at the customer’s convenience.  It is the customer’s responsibility to notify TeleCloud of their cancellation request by contacting TeleCloud via telephone on the effective date AND verifying the request by either emailing “scheduling@telecloudvoip.com” and retaining a confirmed read receipt, or by sending your request via certified mail.  The customer’s cancellation request will not be deemed official until TeleCloud acknowledges the termination request via a confirmation letter or email to be sent to the customer. Returning hardware, completion of service term, transferring numbers, or cessation of payment does not constitute notification of cancellation.  For Customers who cancel service within an active service term, the following charges will apply:

1) Cancellations within 72 hours of order placement will not be subject to a cancellation charge. Order placement is defined as the date the proposal/equipment order or purchase order is signed by the customer.

2) Cancellations Requested before the installation or activation date, whichever occurs first, and after 72 hours from the initial order placement will be subject to a Processing Fee of $1,000, plus any additional third-party cancellation charges TeleCloud is assessed as a result of your cancelation. In addition, the customer will be responsible for shipping costs related to shipping unused equipment back to a TeleCloud distribution office and will also be responsible for restocking fees of $50 per piece of equipment shipped back. There are no associated charges for orders canceled by TeleCloud or its vendors due to technical limitations outside of customer’s reasonable control.

3) If termination occurs within the Term of this Agreement, customer shall be liable for:

    (a) all outstanding nonrecurring fees plus;

    (b) all outstanding recurring fees plus;

    (c) 100% of the Monthly Fees for each month, if any, remaining in the Term plus; and

    (d) If agreement has been signed under Fair Market Value lease terms, equipment must either be returned to TeleCloud or the customer will be responsible for paying the value of the equipment under the terms of the Lease.

All equipment provided by TeleCloud or that a customer leases from TeleCloud, as part of TeleCloud Hosted PBX Services, must be returned to TeleCloud within thirty (30) days of termination and/or cancellation and be in good working order; customers shall be liable for all damaged equipment. For each piece of equipment leased from TeleCloud or provided by TeleCloud that a customer fails to return to TeleCloud Voip within thirty (30) days of the termination and/or cancellation, the customer will be liable for this missing equipment, and be charged the full manufacturer’s suggested retail price (“MSRP”), plus shipping costs incurred by TeleCloud in ordering replacement equipment. 

TeleCloud reserves the right to terminate or suspend the customer’s services if they are more than 24 hours late in making their payment on their monthly billing. Any grace period extended to the customer in relation to maintaining active services if the customer is more than 24 hours late in making their monthly billing payment is subject to the sole discretion of TeleCloud and is not guaranteed. If services are suspended or terminated due to non-payment, customer will be responsible for a reactivation fee of $150 in addition to charges associated with bringing their account current by paying all outstanding balances owed to TeleCloud or any Third-Party Vendor which may be due. Customer will also be required to enroll in auto-pay via credit card or ACH in order to have their services reinstated.

If services are suspended due to non-payment, TeleCloud reserves the right to suspend services associated with the TeleCloud account until the account becomes current by the customer paying all associated charges related to past due balances, reactivation charges, AND by fulfilling the remainder of the contract by paying 100% of the monthly fees for each month remaining in the term of the agreement.

All customers terminated for any reason are liable for any and all outstanding funds due to TeleCloud at the time of service termination, including but not limited to rendered service, hardware, and installation fees.

FINAL QUALIFICATION

TeleCloud is committed to providing quality Hosted PBX Services.  However, TeleCloud is not responsible or liable for any third-party services that may have an effect on TeleCloud’s services, such as third-party internet services, phone services, electricity services, etc. TeleCloud is not ultimately responsible or liable for the quality of your personal computer or any modifications you make to any equipment provided by TeleCloud or equipment you lease from TeleCloud or a Third Party Vendor..  We are committed to solving your problems, but we are not responsible for failings in individual Operating Systems and custom configuration of Operating Systems, Operating System components, software, network hardware, or inside wiring. It is the customer’s responsibility to install and maintain inside wiring for the equipment provided by TeleCloud.

FAXING

If you need the convenience and reliability of a standard fax machine, we recommend upgrading to our Fax service which provides a specialized fax adapter for use with your fax machine.

Fair Use Policy

Customers that send a significant amount of faxes—i.e., over 2,500 total pages of faxes per month—may be subject to additional charges of $0.10 per page related to extended usage according to our fair use policy.

The use of predictive dialers, automatic telephone dialing systems, call center software, and robodialers or any other such related mechanism as may be used within a call center is strictly prohibited on the TeleCloud System and is not supported or endorsed by us or our vendors and is not included in the unlimited calling policy of our services. If such dialers or similar hardware or software are discovered by TeleCloud as being used by the customer, or TeleCloud, at its sole discretion, comes to believe they are being used by the customer, TeleCloud can immediately terminate the customer’s service and upon termination of the customer’s service, the customer will be liable for all termination charges associated with the termination of the account in accordance with the above Termination-Cancellation Policy.

BROADBAND INTERNET TERMS AND CONDITIONS

The following terms and conditions also apply to customers that subscribe to any of TeleCloud’s internet services.

TELECLOUD Broadband

A. Customer understands and agrees that TeleCloud will contract with one or more partners to provide services to Customer. Customer’s broadband agreement is with TeleCloud, and TeleCloud has the discretion to determine the best means to obtain and/or modify the underlying service inputs to provide such broadband to customer. 

B. Operational Limits. Provisioning of service is subject to the availability and the operational limitations of the requisite equipment and associated facilities. You understand and agree that temporary interruptions of the service may occur as normal events in the provisioning of the Service and that TeleCloud is not liable for such interruptions. You further understand and agree that TeleCloud has no control over third party networks you may access in the course of your use of the service, and therefore, delays and disruptions of other network transmissions are, beyond the control of TeleCloud. Moreover, Customer understands and agrees that TeleCloud’s obligation is to use its best efforts to fulfill Customer’s Service Agreement. Should network or commercial limitations prevent TeleCloud from such fulfillment, Customer does not have any claim for damages, whether actual, consequential, reliance or otherwise, against TeleCloud.

C. Installation Limits and the MPOE. Installation of a circuit is guaranteed only to the MPOE (Minimum Point of Entry) as determined by the local Telephone Company or ILEC (Incumbent Local Exchange Carrier). Customer understands and agrees that  TeleCloud has no control over the designation of the MPOE and agrees to assume additional costs for Demarc Extensions unless specifically outlined otherwise in the contract for services.

D. Customer agrees to provide TeleCloud and its subcontractor’s reasonable access to its premises in order to install, maintain and repair broadband to Customer. Customer will be responsible for payment of service charges for visits by TeleCloud or its subcontractors to Customer’s premises when a service request results from causes not attributable to TeleCloud or its subcontractors.

E. TeleCloud may charge customers an average rate for taxes and fees based on TeleCloud’s payment of taxes and fees on average across its network either directly to state, federal or local authorities or through wholesale service agreements via its carriers.

F. TeleCloud will charge customers a Regulatory Recovery Fee which is a fee authorized by the FCC to be charged to cover a carrier’s costs to comply with regulatory requirements for licensing, reporting, and filing with the necessary government agencies. The Regulatory Recovery Fee will be set at the beginning of each year by TeleCloud. Customer agrees to TeleCloud’s calculation of the regulatory recovery fee in using TeleCloud’s services.

Renewal / Termination

1.0    In the event the TeleCloud term and renewal terms above do not already apply, this agreement shall be for a default initial term of sixty (60) months, unless a different term is indicated in a separate written document that is approved by TeleCloud. Such term shall begin on the date TeleCloud activates the Service outlined in this agreement. This agreement shall automatically renew for equal terms by Customer’s continued use of his account with TeleCloud, unless written notice of cancellation is provided by customer no earlier than ninety (90) calendar days and no fewer than sixty (60) calendar days prior to the expiration of the then-applicable term of this agreement. Termination by the Customer shall not create the right to a refund of any fees paid or payable. If customer requests and TeleCloud agrees to provide customer service on a month to month basis, customer will be required to give TeleCloud 60 day notice to terminate service under the month to month arrangement. Requests for service on a month to month basis must be made prior to the 60 day notice necessary to cancel service prior to auto renewal. Requests for service on a month to month basis must not be made prior to the 90 day notice necessary to cancel service prior to auto renewal.

1.1     If a Customer entered into an installment payment agreement (IPA) with a 3rd Party Lender, any of the above language that is directly contradicted by such IPA is superseded by the language therein until the end of term of said installment agreement, at which time, Section 1.0 above will apply accordingly.

Pre-Installation Cancellation Fee

1.0    If Customer cancels an Order for Service prior to installation for any reason other than a failure by TeleCloud to provide service, the following charges will be assessed against the Customer and payable to TELECLOUD immediately: a. For Digital Subscriber Lines (DSL) or Cable Modem service, including (but not limited to) ADSL, SDSL, IDSL, RADSL, or HDSL, a $400.00 pre-installation cancellation fee shall be assessed against the customer and payable to TeleCloud immediately. b. For T1 (or DS1) connections, including (but not limited to) Fractional T1 and Full T1 connections, DS3, Ethernet or any other telecom service the pre-installation cancellation fee shall equal the total number of remaining months in the term of the applicable Service Order(s), multiplied by the Monthly Recurring Charges, payable to TeleCloud immediately.

1.1     If a Customer entered into an installment payment agreement (IPA) with a 3rd Party Lender, the above language is superseded by the language in the installment agreement until the end of term of said installment agreement, at which time, 1.0 outlined above will apply accordingly.

Early Termination Fee

1.0    If internet service is terminated, either in whole or in part, prior to the then-applicable term’s expiration, then Customer shall pay an early termination fee equal to the total number of remaining months in the term of the applicable Service Order(s), multiplied by the monthly recurring charges, to be paid by the customer at the non-promotional rate. Customer agrees that the foregoing liquidated damages are fair and reasonable in light of TeleCloud’s significant up-front expenditures and commitments to downstream suppliers based on Customer’s commitments, and that TeleCloud’s provisioning of the services would not be commercially viable but for these Customer commitments. 

Customer understands that a request to move service from the Customer’s current location to another location that TeleCloud determines cannot be economically served by TeleCloud shall constitute termination of service or may incur a relocation charge, which TeleCloud, at its sole discretion, will determine the value of. When TeleCloud determines the requested location cannot be economically served by TeleCloud, TeleCloud, at its sole discretion, will determine whether it shall constitute a termination of service by the Customer or if a relocation charge is appropriate. If TeleCloud determines the relocation constitutes termination of service by the Customer, the Customer is responsible to TeleCloud for the aforementioned early termination fee equal to the total number of remaining months in the term of the applicable Service Order(s), multiplied by the monthly recurring charges, to be paid by the customer at the non-promotional rate. 

1.1    If a Customer entered into an installment payment agreement (IPA) with a 3rd Party Lender, the above language is superseded by the language in the installment agreement until the end of term of said installment agreement, at which time, 1.0 outlined above will apply accordingly.

Other Charges

A. Where TeleCloud approves a customer move and such a move is provisioned, no cancellation charge will apply to a Customer’s move; however, a $300 charge for re-installation and related costs will be assessed against Customer and payable to TeleCloud with respect to such a move. The term of the Product/Service at the new location will be for at least 12 months from the date that re-installation is completed at the new location, or the remainder of the term in the agreement, whichever is greater.

B. Orders requiring the shipment of hardware, e.g. customer premises equipment, will be subject to a $15.00 shipping and handling charge PER ITEM. Shipping and handling charges are non-refundable. If Customer refuses the charges outlined in this Agreement or prompts its credit card company to reverse such charges, customer agrees to pay an additional $200.00, and authorizes TeleCloud to assess this charge to the Customer’s Credit Card. Customer also agrees to pay all collection fees, including all reasonable attorneys’ fees and costs of suit, required to collect any overdue, refused, or back-charged fees and other amounts due from Customer associated with this Agreement.

C. If an installation appointment is cancelled after 12:00 noon (in the time zone of the affected circuit) on the business day preceding the scheduled installation date or if the Customer is not available at the scheduled time and date to permit installation to proceed as scheduled, a $99.00 charge will be assessed against Customer and payable to TeleCloud.

Equipment and Software

A. TeleCloud shall not be responsible for the installation, operation, or maintenance of customer premise equipment (CPE) or other equipment or software (including without limitation, cabling) not provided by TeleCloud (collectively, “non- TeleCloud equipment or software”). Customer shall be responsible for the use and compatibility of the non- TeleCloud equipment or software. Impairment of the Customer’s use of the services due to non- TeleCloud equipment or software shall not relieve Customer of any obligations hereunder. TeleCloud shall not be responsible for any changes in service which may cause non- TeleCloud equipment or software to become obsolete, require modification or alteration, or which may otherwise impact performance of equipment or software

B. Other than all software and hardware provided to you by TeleCloud and any revised version thereof that you choose to use, you must provide all equipment, devices and software necessary to receive the Service. Due to the infinite number of possible combinations of hardware and software, you are responsible for the compatibility of your system with the Service.

In case TeleCloud leases equipment to customer, TeleCloud’s liability shall be strictly limited to equipment replacement in case of equipment failure. TELECLOUD offers a 72-hour replacement policy on leased equipment however it is customer’s responsibility to procure backup equipment in case of failure of leased equipment. TELECLOUD shall not incur any liability associated with any circuits connected to such equipment. There shall be no SLA credits associated with any service provided to customer due to leased equipment failure. If TeleCloud cannot replace equipment within 72 hours, customer may receive a one month credit for the equipment lease. Customer understands and agrees that this is customer’s sole and exclusive remedy when leasing equipment from TeleCloud.

Payment

The Account Billing & Invoicing terms above shall apply to all internet services customer orders from  TeleCloud.

If Customer entered into an installment payment agreement with a 3rd Party Lender, any payment terms in such installment payment agreement that directly contradict the terms of this Agreement shall supersede these terms, solely to the extent of such conflict, until the term end of the installment payment agreement, at which point these terms shall apply in full.  

Self Installation Waiver

A. Customer agrees that TeleCloud, its officers, employees, and channel partners are authorized to order a “self-install” on the customer’s behalf whenever available, and Customer releases them of responsibility for such tasks when so ordered by Customer. “Self-Install” shall be defined as a LAN cutover which may require the Customer to perform tasks including, but not limited to, inside wiring, hardware installation, and other equipment configuration relating to a LAN cutover as necessary. TeleCloud or its third-party contractors, will aid in these tasks at the rate of $125.00 per hour and will also in addition incur a $75 Trip Charge.

B. Notwithstanding this Section “Self-Installation Waiver”, if the Customer explicitly contracts for a premium installation by written agreement, a self-install will not be authorized.

Customer Premises Equipment Return Policy

A. Equipment purchased from TeleCloud and returned within twenty (20) days from the date of purchase with the original shipping invoice are eligible for refund or exchange. No refunds or exchanges are allowed after twenty (20) days from the date of purchase. All items must be in new condition, including the original box, packaging, manuals, and accessories. Products deemed defective after the 20-day period outlined above may be under Manufacturer’s warranty, consult your owner’s manual for details.

B. An open box fee equal to 20% of the purchase price will be charged on any opened item, unless the item is defective and exchanged for the exact same item (fee not applicable in Hawaii). The 20% open box fee will be assessed at the time of refund or exchange.

C. TeleCloud will not accept the return or exchange of any item if the UPC code has been removed from the packaging.

D. Refunds on hardware will be issued in the form of in-house account credit, unless otherwise requested and agreed to by TeleCloud. Refunds on purchases made with a credit card will only be made as in-house account credit, or as a credit to the same card.

E.  If customer entered into an installment payment agreement with a 3rd Party Lender, the return policy terms above are superseded by the language in the installment payment agreement until the term end of the said installment payment agreement.  At which time, the foregoing paragraphs A-D will apply accordingly.

PROVISIONS APPLYING TO HOSTED VOICE AND BROADBAND INTERNET.

Notices

All notices given by You to TeleCloud or required under this agreement shall be in writing and addressed to:

Priority Communication Services, Inc. DBA Telecloud, Inc. Attn: Contract Administration, 1012 W Eldorado Pkwy #1527; Little Elm, TX 75068

Termination For Cause

TeleCloud may immediately terminate all or a portion of your service, or suspend any or all access to all or a portion of the service, without notice and at TeleCloud’s sole discretion, for conduct that TeleCloud believes is: (a) illegal, fraudulent, harassing or abusive; (b) a violation of any applicable federal, state, or local laws, or the Acceptable Use Policy; (c) a violation of these Terms and Conditions, any policies or guidelines posted by TeleCloud on the service; or (d) harmful to other users, third parties, the service, or the business interests of TeleCloud. If TeleCloud has terminated a portion, but not all, of your access to the service for the foregoing reasons, you will nevertheless be responsible for all charges for the service.

Use of a service for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice to the Customer. If you file a claim against TeleCloud, or a claim that in any way involves TeleCloud, then TeleCloud may terminate your service. Upon termination of your service, TeleCloud will have no obligation to notify any third parties, nor will TeleCloud be responsible for any damages that may result or arise out of termination of your service. Termination or suspension by TeleCloud of service to a Customer also constitutes termination or suspension (as applicable) of that Customer’s license to use the Software.

Modifications To Service

A. TeleCloud reserves the right to modify or discontinue, temporarily or permanently, at any time and from time to time, the Service (or any function or feature of the Service or any part thereof) with or without notice. You agree that TELECLOUD/TeleCloud Voip and/or its affiliates will not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.

B. TeleCloud may be required to modify its pricing for service provided to you in case of carrier price increases, regulatory price increases or general price increases. In case of a price increase to customer, TeleCloud shall provide customer with a minimum of thirty (30) day notice. Customer’s continued use of the services constitutes its acceptance of such changes. However, no changes may be made to any Installment payment agreement without consent from customer and/or TeleCloud and/or its affiliates.  In the event Customer requests any changes to the Services during the term, Customer agrees to pay a minimum $300 change fee, plus all applicable charges associated with such requested change, which may be applied on an individual-case-basis based on the Customer-requested changes.

Acceptable Use Policy

This Acceptable Use Policy (“AUP”) describes actions that TeleCloud prohibits when any party uses its Services. By ordering or using TeleCloud Services, you, the Customer or service recipient, agree to the terms of this AUP. Each Customer must review and comply with this AUP and all applicable laws, but this AUP is not intended to be interpreted as, relied upon, or used as a substitute for legal advice. You agree not to use, and not to encourage or allow any other person to use, TeleCloud’s Services in unlawful or prohibited manners, including, but not limited to, the following:

• Using the Services to engage in any activities that are illegal, abusive, false, fraudulent, deceptive or misleading, or any activity that exploits, harms, or threatens to harm children.

• Engaging in any unsolicited advertising, marketing, or other unlawful activities using the Services, including without limitation, any activities that violate laws applicable to advertising, electronic communications, and telemarketing, including, but not limited to, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. § 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for calls to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended.

• Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call, including failing to comply with the Truth in Caller ID Act, 47 U.S.C. § 227, and implementing regulations, 47 C.F.R. § 64.1604.

• Using TeleCloud’s Services in any way that fails to conform to any applicable industry guidelines and standards, including, without limitation, the CTIA Messaging Principles and Best Practices, Short Code Registry Best Practices and Short Code Monitoring Handbook.

• Attempting to bypass or disable any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk.

• Reverse-engineering the Services for any improper purpose.

• Using the Services in any manner that may subject TeleCloud or any third party to liability, damages, or danger.

• Launching or facilitating a denial of service attack on any of the Services or any other conduct that adversely impacts the availability, reliability, or stability of the Services.

• Transmitting any material that contains viruses, trojan horses, worms or any other malicious or harmful programs.

• Using the Services to receive, send or otherwise process Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996, as amended, unless you have signed a Business Associate Agreement with TeleCloud or your use of the Services fits within an exception for requiring a Business Associate Agreement.

• Using the Services to transmit any material that infringes the intellectual property rights or other rights of third parties.

• Using the Services to transmit any material that is libelous, defamatory, discriminatory, or otherwise malicious or harmful to any person or entity.

This list of prohibited uses is meant to be illustrative and should not be considered exhaustive. All determinations related to violations of this Acceptable Use Policy will be made by TeleCloud in its sole, reasonable discretion. TeleCloud reserves the right to change or modify the terms of the AUP at any time, effective immediately when posted to the TeleCloud website. Customer’s use of the TeleCloud Services after changes to the AUP are posted to the TeleCloud website shall constitute acceptance of any changed or additional terms. If you have a complaint about abuse or a breach of this AUP, please contact a TeleCloud representative.

If you violate these Terms, or TeleCloud, at its sole discretion, comes to believe you may have violated these Terms, TeleCloud may stop providing Services to you or it may close your account. We may also block delivery of a communication (such as a telephone call or SMS) to or from the Services in an effort to enforce these Terms. When investigating alleged violations of these Terms, TeleCloud reserves the right to review the content of your communications in order to resolve the issue. But TeleCloud cannot monitor the entire Services, and make no claim or attempt to do so.

Agreement

A. If any provision of this agreement, including these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law or invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the remaining provisions of this agreement, including these Terms and Conditions, will remain in full force and effect, unless outlined in the customer’s installment payment agreement with a 3rd Party Lender, in which case those terms apply until the end of the installment agreement.

B. Any alterations made to this Agreement by the Customer are null and void without the signature of an authorized TeleCloud employee. Furthermore, the signed contract will remain in force (less the Customer alterations) according to the terms of this agreement.

C. The section titles and paragraph headings in these Terms and Conditions are for convenience only and have no legal or contractual effect.

D. These Terms and Conditions, together with your signed Service Agreement referencing these Terms and Conditions, constitute the entire agreement between TeleCloud and you, unless TeleCloud acknowledges, in writing, other items to be part of the agreement. No verbal agreements will override these documents. Addendums to the MSA must be specifically signed by an authorized representative of TeleCloud.

ASSIGNMENT

You may not assign or otherwise transfer your rights or obligations (or any portion(s) of them) under the Agreement, or delegate your obligations (or any portion(s) of them) to pay amounts you owe TeleCloud in relation to your use of the Services without TeleCloud’s prior written consent. You also may not assign or delegate any claims, rights of action, causes of actions or claims held by you against TeleCloud without TeleCloud’s prior written consent. Any attempt to assign or delegate will be void and of no effect. 

TeleCloud may assign any or all of its rights and obligations (or any portion(s) of them) under the Agreement at any time without your consent. TeleCloud will provide written notice to you of such assignment. Any person to which TeleCloud assigns the Agreement or any right(s) or obligations under it shall be entitled to all of TeleCloud’s rights or obligations so assigned.

Except for the prohibitions on assignment contained in the preceding paragraphs, this Agreement shall be binding and inure to the benefit of the heirs, successors, and assigns of the parties hereto.

Disclaimer of Warranties THE FOLLOWING DISCLAIMERS SHALL NOT LIMIT CUSTOMER’S ABILITY TO SEEK ANY APPLICABLE SLA REMEDIES. THE SERVICES AND ANY RELATED EQUIPMENT, SOFTWARE, AND OTHER MATERIALS PROVIDED BY TELECLOUD IN CONNECTION WITH THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WITH THE EXCEPTION OF THE WARRANTIES AND REPRESENTATIONS MADE WITHIN THESE TERMS AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (A) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED HEREFROM; (B) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (C) THAT THE SERVICES OR THIRD PARTY SERVICES WILL BE FREE OF HARMFUL COMPONENTS; AND (D) THAT ANY CONTENT, INCLUDING CUSTOMER DATA, WILL BE SECURE OR NOT OTHERWISE DAMAGED OR LOST.  TELECLOUD/TELECLOUD VOIP MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM OR THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF ANY THIRD PARTY TECHNOLOGY OR SERVICES, ANY THIRD PARTY ACTION SUCH AS HACKING, OR ANY ACT OR OMISSION OF THE CUSTOMER, INCLUDING FAILURE TO ENCRYPT, AND TELECLOUD SHALL HAVE NO RESPONSIBILITY THEREFORE. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP YOUR DATA AND CONTENT. TELECLOUD DOES NOT, WARRANT THAT THE OPERATION OF THE SOFTWARE, THE EQUIPMENT, OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

TeleCloud does not guarantee service speeds on DSL and cable services. Any service speeds quoted in this agreement are to be interpreted as estimates only, and do not guarantee the receipt of such speeds upon service delivery. TeleCloud currently guarantees a connection speed of 64kbps for all DSL connections, including (but not limited to) IDSL, SDSL, ADSL, RADSL, and HDSL.

TeleCloud does not guarantee actual dates of installation, or dates of service delivery. Any dates quoted by a TeleCloud representative are meant as estimates only. TeleCloud shall not be liable for any loss, damage, claim, or expense rising out of or in relation to installation dates, times, or any other scheduling factors.

EQUIPMENT WARRANTY DISCLAIMERS

To the extent that TeleCloud Hosted PBX provides/leases any equipment to facilitate your IP communication system as outlined in the Service Proposal and/or TeleCloud Equipment Rental or TeleCloud Lease Agreement, You agree to comply with all instructions and requirements regarding the use and/or care of TeleCloud’s equipment, and to take reasonable measures to protect the equipment at all times. The customer will provide a secure, air-conditioned space to house the equipment and sufficient electricity (with certified earth ground) to operate the equipment. Equipment that is rented or leased to you by TeleCloud will be covered under the original equipment manufacturers’ limited warranty which is typically 1 year from the date of installation. Also, for the life of TeleCloud’s paying customers, TeleCloud will also replace any equipment leased from TeleCloud under the terms of the agreement which does not perform as specified, at no charge to you, unless we determine, in our sole discretion, that you are directly or indirectly responsible for the equipment failure, provided that you remain liable for all associated charges associated with such replacement equipment for the remaining term of the agreement.

EXCLUSION OF DAMAGES  

TELECLOUDSHALL NOT HAVE ANY OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER’S DATA.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TELECLOUD OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, REPRESENTATIVES, SUPPLIERS, CONTRACTORS OR AGENTS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT OF, INABILITY TO USE, OR LOSS, INTERRUPTION OR DELAY OF, THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER TELECLOUD OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, REPRESENTATIVES, SUPPLIERS, CONTRACTORS OR AGENTS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; (vi) LOSS, DAMAGE, LIABILITY, CLAIM, OR EXPENSE ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, THE SERVICES, OR TELECLOUD’S EQUIPMENT,, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TELECLOUD IS NOT RESPONSIBLE FOR ANY USE OR MISUSE OF THE SERVICES OR MATERIALS BY CUSTOMERS AND ANY RESULTS THEREOF. 

Limitation Of Liability

IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF TELECLOUD AND ITS EMPLOYEES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, REPRESENTATIVES, CONTRACTORS, SUPPLIERS AND AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT, OR OTHER CAUSE OF ACTION, EXCEED THE TOTAL NET PAYMENTS PAID BY CUSTOMER TO TELECLOUD FOR THE AFFECTED SERVICE WHICH GIVES RISE TO SUCH LIABILITY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE FOREGOING LIMIT.

HOLD HARMLESS & INDEMNIFICATION:

CUSTOMER IS LIABLE FOR ANY AND ALL USE OF THE SERVICES AND/OR EQUIPMENT BY ITSELF AND BY ANY PERSON MAKING USE OF THE SERVICES OR EQUIPMENT, AND CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS TELECLOUD AGAINST ANY AND ALL LIABILITY FOR ANY CLAIMS THAT ARISE OUT OF CUSTOMERS OR TELECLOUD’S USE OR MISUSE OF THE SERVICES, INCLUDING ANY CLAIMS THAT SUCH USE FAILS TO COMPLY WITH THIS AGREEMENT OR APPLICABLE LAW. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS TELECLOUD AND ITS OWNERS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES AND COSTS OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICES, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, TELECLOUD/TELECLOUD VOIP’S EQUIPMENT, THE USE OF AND/OR INABILITY TO USE TELECLOUD’S EQUIPMENT, THE INSTALLATION OF TELECLOUD’S EQUIPMENT, THE ABSENCE OR FAILURE OF TELECLOUD’S EQUIPMENT, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE EXCLUSIVELY FROM TELECLOUD’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 

FORCE MAJEURE

TeleCloud will not be in violation of this Agreement or otherwise liable for any delay, failure to perform or equipment or property damage, loss, destruction or malfunction, or any consequence thereof, caused by anything beyond its reasonable control, including, without limitation, fire; earthquake; flood; weather; acts of God; labor disputes; utility curtailments; power failures; cable cuts; failure caused by telecommunications or other Internet provider(s); Handsets or other Services Related Products (including Mobile Related Products); worms, Trojan horses, viruses, or other destructive code or software; explosions; civil disturbances; terrorism; vandalism; governmental actions; or shortages of equipment or supplies (collectively, “Events of Force Majeure”).

ARBITRATION & CHOICE OF LAW OR JURISDICTION

Any disputes greater than $7,500 that arise between Client and TeleCloud with respect to the performance of this agreement shall be submitted to binding arbitration by the American Arbitration Association, to be determined and resolved by said association under its rules and procedures in effect at the time of submission, and the parties hereby agree to share equally in the costs of said arbitration.  The final arbitration decision shall be enforceable through the courts of the State of Texas.  In the event that any court of competent jurisdiction holds this arbitration provision unenforceable, then this contract shall be as binding and enforceable as if this paragraph were not a part thereof.  The party losing the arbitration shall reimburse the party who prevailed for all reasonable attorneys’ fees and all reasonable expenses (as determined by the arbitrator) incurred by the prevailing party in connection with the arbitration proceedings.

NON-DISCLOSURE

TeleCloud and Customer both agree that they shall not, without prior written consent of the other party, willfully disclose to any third party any information that is disclosed by Customer to TeleCloud, or by TeleCloud to Customer, that is labeled or clearly designated by Customer or TeleCloud as confidential or proprietary information.  These restrictions, however, will not apply to information that has become known to the public generally through no fault or breach of TeleCloud or Customer, or that TeleCloud or Customer regularly gives to third parties without restriction on use or disclosure.

DEDICATED INTERNET SERVICE LEVEL AGREEMENT

Service Level Agreements (“SLA”). This SLA sets forth the performance metrics applicable to TeleCloud’s Dedicated Internet Service as well as the terms and conditions governing the availability of Service Credits to Customer. The monthly measured SLA metrics are effective as of the first day of the second month after initial installation of a Service.

Components Included

This SLA provides Customers purchasing TeleCloud’s Dedicated Internet Service with certain rights and remedies regarding the performance of the TeleCloud Network and underlying network components. (i.e., POP’s, routers, backbone) The TeleCloud Network is defined as the TeleCloud owned and operated Data (IP) routing infrastructure consisting of Network to Network interfaces and TeleCloud points of presence (POPS) as well as the connections utilized between them. Local access and connection facilities (i.e., the local loop or tail circuits) (“Local Access”) used to access the TeleCloud Network or vendor networks and any Customer equipment are not included as components of the TeleCloud Network for purposes of this SLA with the following exception: when Local Access is provided by TeleCloud, the “Network Availability SLA” set forth below will apply to the Local Access and Customer’s remedies will include Service Credits based on the availability of the Local Access. Under no circumstances will the SLA apply to any Local Access furnished or ordered directly by Customer from a third party or any equipment provided by the Customer.

Network Port Availability

Network Port Availability measures “Network Downtime” versus “Network Uptime.” Network Downtime is based on periods when a Customer’s DIA port is unable to transmit and receive data, and Network Uptime includes all other periods. Network Downtime is recorded in the TeleCloud trouble ticket system, and is measured from the time a trouble ticket is opened within the TeleCloud trouble management system and Customer confirms service unavailability to the time the Affected Service is again able to transmit and receive data according to TeleCloud records. “Affected Service” refers to the DIA port that fails to meet the applicable SLA.

Latency

The average network delay (“Latency”) will be measured via roundtrip pings on an ongoing basis to determine an average monthly performance level for Latency at the relevant POPs. Latency = Σ (Roundtrip Delay for relevant POP-POP trunks)/(Total Number of relevant POP-POP trunks).

Packet Delivery 

Packet Delivery will be measured on an ongoing basis to determine an average monthly performance level for packets delivered between the relevant Intra U.S. POPs.

Jitter 

Jitter measures the interpacket delay variance and packet loss in the TeleCloud Network, and is measured on an ongoing basis by generating synthetic user datagram protocol (UDP) traffic.

* Each cumulative hour that the Service performance goal is not attained qualifies Customer for credit equal to [1/720 x Customer Recurring Monthly Charges for applicable service(s)].

1. The term “ms” means milliseconds.

Installation Goal 

For Service in the continental U.S., TeleCloud’s goal is to install Local Access within the following timeframes: copper facilities = 30 calendar days, fiber facilities = 90 calendar days.

Remedies 

A. General. The provisions of this SLA set forth Customer’s sole and exclusive remedy for Service interruptions or Service deficiencies. Subject to the following terms and conditions, Customer will be eligible to receive a Service Credit for any such interruptions or deficiencies. Customer must request a Service Credit within five (5) days from: (i) the date the outage occurred or (ii) the date the goals for latency, packet delivery, or jitter were not met. Customer should direct the request to the TeleCloud Billing Department at billing@TeleCloudvoip.com. Customer’s request must be accompanied by the TeleCloud trouble ticket issued by the TeleCloud Network Operations Center (NOC). The maximum Service Credits issued in any one calendar month shall not exceed: (a) with respect to Network Availability, seven days’ charges pro-rated from the MRC of the Affected Service; or (b) with respect to latency, packet delivery or jitter, fifty percent (50%) of the MRC of the Affected Service. Under no circumstances will the aggregate Service Credit(s) issued in a single month exceed the equivalent of fifty percent (50%) of the MRCs for the Affected Service.

B. Exceptions. Customer will not be entitled to Service Credits when the failure to meet the SLA was the result of any of the following: 

1. the acts or omissions of Customer, its employees, contractors or agents, or End Users; 

2. the failure or malfunction of equipment, applications or systems not owned or controlled by TeleCloud; and

3.  Force Majeure Events; or (d) scheduled service maintenance, alteration, or implementation.

Maintenance

A. Normal Maintenance. TeleCloud will perform Normal Maintenance (or nonemergency maintenance) on the TeleCloud Network during the maintenance hours (windows) set forth below. “Normal Maintenance” refers to: (a) upgrades of hardware or software; (b) upgrades to increase capacity; or (c) other pre-scheduled network activity that may degrade the quality of the Service or cause Service interruptions. TeleCloud will use commercially reasonable efforts to perform all Normal Maintenance between the hours of 12:00 midnight and 6:00 AM Local Time. “Local Time” refers to the time of day in the time zone in which an affected Service is located; provided, however, that if affected Services are located in multiple time zones, Local Time shall refer to the U.S. Eastern Time zone.

B. Emergency Maintenance. “Emergency Maintenance” refers to efforts to correct TeleCloud Network conditions, requiring immediate attention. The performance of Emergency Maintenance may degrade the quality of Services and may result in total disruption of Service. TeleCloud may undertake Emergency Maintenance at any time that it deems necessary in its sole discretion. TeleCloud shall provide Customer notice of Emergency Maintenance as soon as is reasonably practicable under the circumstances.

MTTR

TeleCloud’s mean time to repair objectives is (i) 4 hours for fiber optic Services; (ii) 12 hours for copper-based Services.

Broadband Disclaimer

Broadband services are asymmetric upstream/downstream Internet services where the upstream and downstream speeds are estimates (i.e., “up to” the specified speed) and the service is provided on a “best efforts basis” and cannot be guaranteed. When a TeleCloud Service contains a Broadband component, the SLA set forth above does not apply.