Customer Service Agreement
Upon activation of services, Customer agrees that the terms of this Agreement are incorporated into and made a part of each Service Order that is executed by Axio Networks, LLC and Customer.
1. Services Provided: Subject to and under the terms herein, applicable Axio Networks, LLC tariffs and service addenda (if any), Axio Networks, LLC will provide local telephone, and/or long-distance telephone services (collectively the “Services”) set forth in the order for Service (the “Service Order”). For purposes of this Agreement, “Recurring” charges are monthly charges paid by the Customer, and “Non-Recurring” charges are one-time fees paid by the Customer for such items, including, but not limited to, installation of service, special requests regarding services and/or special construction.
2. Governmental Regulation: Customer understands that the Services provided hereunder may be governed by certain federal, state and/or local regulatory authorities and by certain terms and conditions of service contained in an applicable Axio Networks, LLC tariff on file with such authorities. In the event of any conflict between the terms of this Agreement and those provided under any government regulations or applicable tariff, in all instances, the regulation or applicable tariff(s) shall prevail.
3. Payments & Billing: Customer will be invoiced for installation within fourteen (14) days of installation of Services. Service will be billed for a minimum period of thirty (30) days, consisting of twenty-four (24) hour days. Service will be invoiced monthly, due and payable within thirty (30) days after the invoice date. Material changes in circuit engineering, equipment specification, service parameters, premises locations, or any other material modification from the Customer’s application for Service will result in an adjustment of the installation fee. Past due amounts assessed a late charge at the rate of 3.5% or the highest lawful rate until the balance is paid in full. An additional charge will be assessed for any customer check returned as non-payable. Customer agrees that all Services will be suspended pending payment for all balances forty-five (45) days past due. Customer agrees to pay Axio Networks, LLC for any and all expenses (including reasonable attorney’s fees) associated with the collection of any amounts due from Customer hereunder.
4. Term: The terms of this Agreement shall commence upon execution of the Service Order by an authorized representative of Axio Networks, LLC and shall continue for the term set forth in the Service Order. At the expiration of the Initial Term specified in each Service Order, Service shall continue on a month-to-month basis at Axio Networks, LLC’s then-current rates for such Service. Termination shall not relieve Customer of the obligation to pay charges incurred under the applicable Service Order (and applicable tariff) prior to termination. The rights and obligations, which by their nature extend beyond the termination of the term of the Service Order, shall survive the termination.
5. Termination Charges:
5.1 Customer may cancel Service Order prior to the installation and establishment of Service, unless otherwise provided in any applicable Axio Networks, LLC tariff. In the event of such cancellation, Customer agrees to pay Axio Networks, LLC upon demand, a termination charge equal to the total costs and expenses incurred by Axio Networks, LLC in connection with the Axio Networks, LLC’s performance to establish Server under the Service Order up to the date of termination, plus one (1) month’s recurring charge.
5.2 Customer may not cancel a Service Order or terminate Service before the completion of the Initial Term for any reason whatsoever after Axio Networks, LLC installs and establishes Service. In the event of such cancellation or termination, Customer agrees to pay Axio Networks, LLC a termination charge equal to:
(a) all unpaid Non-Recurring charges expended by Axio Networks, LLC to establish Service to Customer, plus;
(b) any disconnection, early cancellation or termination charges incurred and paid to third parties by Axio Networks, LLC on behalf of the Customer on account of the cancelled or termination Service, plus;
(c) all Recurring charges specified in the applicable Service Order for the balance of then current term following the date of cancellation. The Customer understands that the rates and charges for services are based in part upon the expectations that the Customer will continue to pay for such Services for a certain minimum period designated in each Service Order. Axio Networks, LLC will calculate the termination charge for usage-based Recurring charges by multiplying the number of billing periods in the remaining term by the average amount of the immediate three previous months’ invoices. For Service with a minimum usage guarantee, Axio Networks, LLC reserves the right, and Customer agrees, to pay for the monthly minimum usage multiplied by the number of months remaining in the term. If the Customer’s Service requires special facilities dedicated to the Customer’s usage and Customer cancels before the Service Order before completion of Initial Term of such other extended period that Axio Networks, LLC and Customer mutually agreed upon, Customer shall reimburse Axio Networks, LLC for the non-recoverable portions of expenditures or liabilities incurred expressly on behalf of the Customer by Axio Networks, LLC.
6. Cancellation by Customer for Cause: Customer may terminate this Agreement or the applicable Service Order, without incurring liability, only upon Axio Networks, LLC’s failure to correct a material failure of Service within thirty (30) days of Axio Networks, LLC having received Customer’s written notice identifying the defect in Service.
7. Cancellation by Axio Networks, LLC: Axio Networks, LLC may discontinue the provision of Service to a Customer or to a particular Customer location, or may withhold the provision of ordered or contracted Service, without incurring liability, on reasonable notice to Customer: (a) for non-payment for any sum due to Axio Networks, LLC for more than thirty (30) days after issuance of the bill for the amount due; or (b) for violation of any of the provisions of an applicable tariff; or (c) for violation of any law, rule, regulation or policy of any governing authority having jurisdiction over Axio Networks, LLC’s services; or (d) by reason of any order or decision of a court, public service commission or federal regulatory body or other governing authority prohibiting Axio Networks, LLC from furnishing its Service.
8. Force Majeure: Axio Networks, LLC shall not be liable for any delay or failure of performance or equipment due to causes beyond its control, including, but not limited to: acts of God, fire, flood, explosion, or other catastrophes; any law, order, regulation, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over Axio Networks, LLC, or of any department, agency, commission, bureau, corporation, or other instrumentality if any one or more of these federal, state, or local governments, or of any civil or military authority; national emergencies; insurrections; riots; wars; acts of terrorism; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties.
9. Special Construction: If the Customer requires special construction as part of Axio Networks, LLC’s provision of Service, Customer shall be responsible for all costs associated with such special construction. If Customer requests a change in location of all or part of the Service prior to the completion of construction installation, Customer agrees to pay Axio Networks, LLC all additional costs incurred from customer change in location.
10. Service Interruption:
10.1 A credit allowance will be made when an interruption in Service occurs because of a failure of any component furnished by Axio Networks, LLC under a Service Order or applicable tariff. An interruption period will be deemed to have begun four hours after the Customer reports a Service to be interrupted and releases it for testing and repair. An interruption period ends when the Service is operative. If the Customer reports a Service to be interrupted but declines to release it for testing and repair, it is considered to be impaired, but not interrupted and Axio Networks, LLC will not use credit.
10.2 For calculating credit allowances, every month is considered to have thirty (30) days. Axio Networks, LLC has a mean time to repair of four (4) hours (“MTTR”). A credit allowance is applied on a pro rata basis against the rates specified hereunder and is dependent upon the length of interruption beyond the MTTR. Only those facilities on the interrupted portion of the circuit will have a credit.
10.3 Axio Networks, LLC will have no obligation to provide credit for any interruptions in Service resulting from:
(a) Customer’s negligence of and/or noncompliance with the provisions of applicable tariffs; and/or
(b) Operation or malfunction of the facilities, power or equipment not supplied by Axio Networks, LLC; and/or
(c) The acts of omissions of third parties with whom Axio Networks, LLC contracts to provide Service.
11. General Provisions:
11.1 No Warranties. UNLESS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, AN ADDENDUM OR APPLICABLE TARIFF, THE SERVICES PROVIDED BY Axio Networks, LLC UNDER THIS AGREEMENT ARE “AS IS” WITH OUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANT ABILIGY OR FITNESS FOR A PARTICULAR USE.
11.2 Limitation of Liability: Customer’s exclusive remedy and Axio Networks, LLC’s sole liability for any interruption or failure of any Service furnished pursuant to this Agreement shall be limited to Axio Networks, LLC’s crediting the Customer the amount of actual charges incurred by the Customer on account of interrupted Service. Axio Networks, LLC shall not be liable for any interruption caused by or any act or omission of any other carrier furnishing any portion of the Services. Axio Networks, LLC shall not be liable for any act or omission of any entity furnishing to Axio Networks, LLC or to Axio Networks, LLC’s customer customer’s facilities or equipment used for or with the service Axio Networks, LLC offers. Axio Networks, LLC’s LIABILITY SHALL BE LIMITIED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Axio Networks, LLC UNDER THIS AGREEMENT. Axio Networks, LLC SHALL HAVE NO LIABILTY FOR ANY INCIDENTAL OR ONSEQUENTIAL DAMAGES ARISING FROM ANY SERVICES PROVIDED HEREIN OR ANY INTERRUPTION FAILURE OF ANY SUCH SERVICE. Axio Networks, LLC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING AND NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO ANY SERVICE, FACILITIES OR EQUIPMENT PROVIDED PURSUANT TO THIS AGREEMENT. Axio Networks, LLC assumes no responsibility for the availability or performance of any cable or satellite system or related facilities under the control of other third parties or other entities used for service to the Customer, even if Axio Networks, LLC has acted as the Customer’s agent in arranging for such facilities or services. Such facilities are provided subject to such degree of protection as may be provided by the other entities.
11.3 Indemnification: Customer will indemnify and hold Axio Networks, LLC, its offices, employees and representatives, harmless from and against any and all liabilities, obligations, losses, damages, expenses (including reasonable attorney’s fees), injuries and claims of any kind whatsoever against Axio Networks, LLC arising out of the acts of omissions of Customer, its agents, employees or representatives in connection with these Terms and Conditions, a Service Order or the use of Axio Networks, LLC’s Service, including, but not limited to, instances involving claims for libel, slander invasion of privacy, or infringement of copyright arising from the Customer’s own communications, personal injury to or death of any person or persons, and for any loss, damage or destruction of any property, including environmental contamination, whether owned by the Customer or by any other party, cause or claimed to have been caused directly or indirectly by the installation, operation, failure to operate, maintenance, presence, condition, location, use or removal of any equipment, facilities, or the Service provided by Axio Networks, LLC.
11.4 Taxes: In addition to the prices set forth in the Service Order, Customer shall pay any and all applicable federal, state, or local sales, use, privilege, gross receipts or excise tax and any such other tax, fee or surcharge, paid or payable by Axio Networks, LLC, however designated, levied or based on Axio Networks, LLC’s delivery of the Services to Customer. Such amounts shall not include taxes based upon the net income of Axio Networks, LLC.
11.5 Modification: This Agreement may only be amended, modified, or waived by written agreement executed by authorized signatories of the Parties.
11.6 Wavier: No waiver of any breach of this Agreement will be implied or deemed a waiver of any future breach.
11.7 Governing Law: This Agreement shall in all respects be governed by and constructed in accordance with the state law where the Service is provided, including all matters of construction, performance, and validity.
11.8 Assignment: Customer may not assign any interest under this Agreement, in whole or part hereof, by operation of law or otherwise, without the express written consent of Axio Networks, LLC. Each of the covenants, terms, provisions and agreements contained in this Agreement.
11.9 Severability: If any of the terms of this Agreement are declared to be illegal, invalid, or unenforceable as a matter of law, the same shall not invalidate the remaining terms of this Agreement, which shall be constructed as if not containing such provision, and the rights and obligations of the Parties shall be construed and enforced as if a commercially reasonable provision had been submitted in place thereof, consistent with the undertaking of the Parties hereto.
11.10 Headings: The headings used herein are solely for the convenience of the Parties and do not limit the contests of the respective paragraphs hereof.
11.11 Counterparts: This Agreement may be executed in one or more counterparts each one of which shall be deemed as original and all of which together shall constitute one and the same instrument.
11.12 Notices: All notices requires hereunder shall be in wiring sent first class mail, return receipt requested, or delivered by hand to the address of the party set forth on the Service Order or such other address as such party may designate from time to time by such notice and shall take effect: (a) three (3) days from mailing if mailed, or (b) when received, if delivered by hand.
11.13 Billing Errors: The liability of Axio Networks, LLC for errors that result in overpayment by the Customer shall be limited to credit equal to the U.S. dollar amount erroneously billed or, in the event that payment has been made and Service has been disconnected, to a refund of the amount erroneously billed.
11.14 Damage to Property: Axio Networks, LLC is not liable for any defacement or damage to Customer premises resulting from the furnishing of Services or equipment on such premises or the installation or removal thereof, unless such defacement or damage is caused by negligence or willful misconduct of Axio Networks, LLC’s agents or employees.