TELEPHONE SERVICE AGREEMENT
This Services Agreement ("SA") is incorporated into and made a part of the Service Agreement(s) to which it is attached between Spanish Fork Community Network, ("SFCN") and the named customer ("Customer").
1. DEFINITIONS/SCOPE. The Customer agrees to subscribe to the telecommunications services (the "Services") offered by SFCN (or corporate affiliates/third parties under agreements with such) as described in the Service Agreement, and this MSA (collectively, the " Agreement"), which are incorporated herein, and made a part hereof, by reference. In the event of a conflict between the terms and conditions contained in this Agreement and any of the Schedules or the SLA, the terms and conditions of the Schedules or SLA shall govern. SFCN reserves the right to unilaterally amend all terms and conditions including pricing in response to, among other things, regulatory changes or third-party costs beyond the control of SFCN that materially alter the feasibility or economics of the Services provided by SFCN hereunder.
2. TERM. Unless otherwise specified, the term of this Agreement shall commence the date of execution of the Agreement, or if earlier, on the Service Activation Date (the "Effective Date").
3. CHARGES AND EXPENSES OF COLLECTION. Charges under this Agreement accrue from the Service Activation Date. SFCN shall invoice, and Customer shall pay, within thirty (30) days following the date of any invoice (the "Due Date"), all monthly recurring charges for Services provided under this Agreement, in addition to any federal and state taxes, surcharges and other governmental impositions (e.g., end user common line charges, federal, state and local use, excise, sales and privilege taxes; surcharges related to universal service programs, emergency telephone service (911/E-911) and telecommunications relay service for the hearing impaired; payphone surcharges; and other similar surcharges for required programs). Customer shall also pay, as invoiced, for any one-time charges for initial installations or other non- recurring charges, Customer shall pay the recurring charges monthly. All costs and expenses, including but not limited to attorneys' fees, expenses, court costs, and service charges, incurred by SFCN in collecting payment for any amount due under the Agreement (e.g., monthly recurring charges, one-time charges, early termination charges) will be an expense of and charge to Customer.
4. DIRECTORY LISTING. For Local Line Services, Customer's name, address, telephone number and any other information listed on the Agreement are certified as correct by the Customer, and it is understood and agreed that Customer's white page directory listing will appear using that information. It is Customer's sole responsibility to inform SFCN in writing of any change in the information at least 90 days prior to the local telephone directory issue date, which will be provided to Customer upon request. Customer releases SFCN from any and all damages related to or arising out of telephone number publication or distribution and/or related to any error, including listing omissions or errors, pertaining to a directory listing.
5. 911/E-911. Prior to the initialization of service, the Customer shall provide accurate End User name and address information where the service will first be utilized (also known as " Registered Location") for the purpose of updating the E-911 database. If the End User address provided on a work order does not convert to a valid Master Street Address Guide (also known to as the "MSAG") address for the End User locality, SFCN will notify Customer and stop all processing of the order until Customer provides an MSAG-compatible address. Customer assumes all responsibility for the accuracy of the End User data that Customer provides to SFCN for entry into the E-911 database. Customer bears the responsibility to notify SFCN of any changes to the End-User Data. Customer shall indemnify and hold SFCN harmless from any claims, damages, or suits related to the accuracy of data provided by Customer for inclusion in the E-911 database. Customer will provide (and update as necessary) SFCN with accurate information related to E-911 Service. Customer Acknowledges and understands that the Voice Service supports E-911 and access to emergency services only if the service is operated from the service location of record and then only if subscriber has an active connection to the service, in accordance with the terms of the User Agreement. Subscriber acknowledges and understands that if there is a service outage (even related to extended Power outages) for any reason, such outage may prevent all voice service, including 911 dialing. Customer also acknowledges that it may take SFCN up to thirty (30) days to get the correct address information to E-911 database and that during that time the E-911 database may have the wrong address information. Customer will indemnify and hold SFCN, its affiliates, directors, officers, employees and agents from and against all claims, demands, actions, causes of action, damages, liabilities, losses and expenses (including reasonable attorney’s fees) incurred as a result of any act or omission, representation or statement by Customer related to E-911 Services.
6. SERVICE OUTAGES AND SERVICE LEVEL AGREEMENT. Customer acknowledges, agrees, and understands that there is the possibility of an unscheduled, continuous, and/or uninterrupted period of time during which the Service does not conform to the Service Level Agreement ("SLA") as set forth by SFCN. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER AGREES THAT ITS SOLE
AND EXCLUSIVE REMEDY, AND SFCN'S SOLE AND EXCLUSIVE OBLIGATION, IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR OF THE PERFORMANCE LEVELS IN THE SLA, OR FOR ANY OTHER REASON, SHALL BE FOR SFCN, AT ITS OPTION, TO REPLACE AND/OR REPAIR THE DEFECTIVE SERVICES IN ACCORDANCE WITH THE TERMS OF THE SLA.
7. LIMITATION OF LIABILITY. SFCN MAKES NO WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN CONSIDERATION OF THE RATES AND CHARGES SPECIFIED HEREINAND THE DISCOUNT APPLIED IN CONNECTION THEREWITH, SFCN’S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY AGAINST SFCN FOR THE FAILURE OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT, SHALL BE LIMITED TO
A REFUND OF THE AMOUNTS PAID TO SFCN DURING THE PERIOD OF TIME THAT THE SERVICES CONTRACTED BY CUSTOMER FROM SFCN WERE INTERRUPTED OR NOT PROVIDED AS REQUI RED. IN NO EVENT SHALL SFCN BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUES, PROFITS, OR GOODWILL OF ANY KIND, WHETHER OR NOT SFCN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAES COULD HAVE BEEN OR ACTUALLY WERE CONTEMPLATED BY THE PARTIES.
8. FORCE MAJEUR E. If performance by SFCN of any obligati on under this Agreement is prevented, restricted or interfered with by causes including without limitation failure or malfunction of Custom er-supplied equipment , acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, terrorism, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority, then SFCN shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. SFCN shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance with reasonable dispatch.
9. ADDITIONAL PROVISIONS. This Agreement will not be assignable by Customer without the prior express written consent of SFCN. The Agreement, including any Schedules, the SLA, Addenda, and any product-specific terms and conditions, constitutes the entire understanding between Customer and SFCN and supersedes any prior agreements or understandings, whether written or oral. In the event of any conflict between this Agreement and the terms and conditions of any SLA and/or Schedule, the order of precedence is as follows: (1) the SLA, (2) this Agreement, and (3) the Schedule. If any part of a provision of this Agreement is invalid or unenforceable said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provisions of this Agreement. This Agreement shall be governed by the laws of the state of Utah. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
10. INDEMNIFICATION. Customer shall indemnify, defend and hold harmless SFCN, its employees and agents, from any and all losses, costs, damages, liabilities, actions, causes and action and expenses, including reasonable attorney’s fees, arising out of, in whole or in part, directly or indirectly, as a result of or attributable to the use of the Services by Customer or any other person or party including any claims for libel, slander, or infringement of copyright or trademark.
11. NO RESALE. SFCN Services are for Subscribers ' own personal and/or business use and Subscribers shall not, under any circumstances, resell, retail, repackage for sale, distribute or wholesale or otherwise commercially distribute the services described herein by itself or in conjunction with any other services provided by Subscribers.
12. GENERAL CONDUCT. The SFCN Network and Services must be used in a manner that is consistent with the intended purpose of the SFCN Network and Services and may be used only for lawful purposes. Subscribers shall not use the SFCN Network and Services in order to transmit, distribute or store material: (a) in violation of any applicable law or regulation, including export or encryption laws or regulations; or (b) that may expose SFCN to criminal or civil liability. Subscribers are further prohibited from assisting any other person in violating any part of this policy.