VOIP SERVICE AGREEMENT
THIS VOIP RETAIL SERVICE AGREEMENT (“Agreement”) is entered into this _________________ (the “Effective Date”), between AOVATALK COMMUNICATION LIMITED., a Company having a business address at unit 1603, 16th floor, the l. Plaza 367 – 375 Queen’s Road Central Sheung Wan, HONG KONG., (hereinafter “AOVATALK”, ‘’The Company’’); and the customer. AOVATALK and Customer are collectively referred to herein as the “Parties” and individually as “Party”.
1. SERVICES. AOVATALK COMMUNICATION LIMITED is in the business of providing retail VOIP services. Customer desires to purchase from AOVATALK COMMUNICATION LIMITED and AOVATALK COMMUNICATION LIMITED desires to sell to customer, VOIP services, in accordance with the terms and conditions set forth in this Agreement as well as defined in any other document provided by this Company. AOVATALK COMMUNICATION LIMITED will provide to Customer the services specified in each Attachment (“Agreement for Services”).
2. TERM. The term of this agreement shall begin upon its Effective Date as first stated above and continue for a period of one (1) year thereafter (“Initial Term”) unless earlier terminated under the terms of this Agreement. Following the Initial Term, the service shall automatically renew for continuous one (1) year terms (each, a “Renewal Term”) unless written notice of intent to terminate is given no less than ninety (90) calendar days before the end of the then current Initial Term or Renewal Term by the terminating Party.
3. SERVICE DESCRIPTION. AOVATALK COMMUNICATION LIMITED Termination Service, directly and/or through its affiliates, subsidiaries, and underlying carriers provides Customer with a combined transport and termination rate for the purpose of delivering Customer voice traffic from the Customer Premises to the PSTN (Public Switched Telephone Network). AOVATALK COMMUNICATION LIMITED Termination Service allows Customer to bring voice traffic from AOVATALK COMMUNICATION LIMITED. Additionally, this SERVICE DOES NOT INCLUDED 911 OR E911 SUPPORT.
4. PAYMENT. Customer will pay the fees described in the Attachments. Except as specified in an Attachment, (i) recurring fees will automatically be paid monthly by electronic means in advance with the first month payment due upon contract inception; (ii) non-recurring fees will be due upon contract inception; (iii) all fees and deposits are deemed fully earned and non-refundable when due or in the case of deposits, when paid. ii. Customer will bear all taxes, duties, and other government charges relating to the Services (including interest and penalties to the extent caused by Customer’s actions or omissions), except taxes based on AOVATALK’S income. Customer will support any AOVATALK claim of tax exemption with appropriate documentation. iii. Interest will accrue on past-due balances as of the date of delinquency at the lower of: (i) ___________(___%) per month, or (ii) the highest rate permitted by applicable law. Service may immediately be suspended for non-payment or exceeding customers credit limit without notice. If Services are suspended due to nonpayment of fees or exceeding customers credit limit and subsequently reconnected, a reconnection fee or deposit may apply, in addition to applicable interest.
5. BILLING. Customer will pay AOVATALK’s then current AOVATALK Termination usage rates. AOVATALK reserves the right to change the rates for Service terminating at an International location upon immediate notice to Customer. ii. AOVATALK Termination Service is billed in increments or otherwise noted on the rate decks sent. All per-minute rates are rounded up to the fourth decimal place amount of a call charge. For example, a call charge of $. ________ will be rounded up to $. ______. iii. AOVATALK will invoice Customer for Standard Voice Termination Services based on the Billable Time recorded by AOVATALK facilities. “Billable Time” is defined as the number of seconds from when an answer is recorded by AOVATALK. The AOVATALK Termination Service usage rates are net of any applicable charges by third party payphone providers. Customer will be responsible for (i) all such origination charges, and (ii) tracking any traffic associated with such origination charges in accordance with applicable law or regulation. For AOVATALK Termination Service that terminates on the PSTN (Public Switched Telephone Network) only, Customer will be provided, in addition to its invoice, a summary report describing the total amount due from Customer to AOVATALK and the total cost of Customer’s recurring fees, nonrecurring fees and total usage charges. Usage detail may be provided via Web, or email daily. vi. Unless otherwise agreed in writing by the Parties, AOVATALK shall rate and bill its Services based on Location Routing Number (“LRN”) when available.
The LRN and corresponding rate may differ from the Dialed Number and its rate for reasons including but not limited to the Dialed Number being ported or the Dialed Number is part of a block that has been reassigned to another carrier. When LRN is not available, AOVATALK will rate and bill its Services based on the Dialed Number. Customer acknowledges that invoices cannot be short paid or disputed on the sole basis of LRN rating or billing. vii. For the purpose of determining a call’s jurisdiction (interstate vs. intrastate), AOVATALK will evaluate the originating and terminating information present in the call stream, including, but not limited to, any originating caller ID and dialed number.
Responsibility to Control and Manage Traffic. In addition to any other terms and conditions of this Service Schedule and the Agreement, Customer shall bear the following responsibilities in connection with AOVATALK’s provision to Customer of AOVATALK Termination Service: (i) Customer shall manage the integrity of the traffic egressing Customer’s network; (ii) Customer shall screen and block calls destined to (i) invalid single numbers, or (ii) numbers with invalid formats; and (iii) Customer is solely responsible for all usage of the Services, fraudulent or otherwise. Claims of fraudulent usage shall not constitute a valid basis for dispute of an invoice.
The Parties agree that Customer, shall bear all risk of loss arising from fraudulent or unauthorized use of the Services. Customer shall manage and correct, as necessary, any fraudulent calling patterns or calling patterns perceived as fraudulent that may harm AOVATALK’s network. AOVATALK reserves the right, but has no duty, to take any action it deems appropriate to prevent any fraud or abuse in connection with the Services, consistent with applicable federal and state laws and regulations.
6. PAYMENT TERMS
Usage charges will be billed weekly for the preceding seven (7) days’ usage, and will be due and payable, net of disputed amounts, if any, within three (3) days from date of invoice. AOVATALK shall send invoices to the email address entered by customer. Sometimes there are technical and human errors that prevent emails from being delivered properly. It is Customer’s responsibility to ensure they have received their invoice. The lack of receipt of an invoice by Customer is not a valid reason for lack of timely payment. AOVATALK reserves the right at any time and at AOVATALK’s sole discretion to increase or decrease Customers Initial Credit Limit.
Any past due amounts are subject to a late charge in the amount of _________ percent (___%) per month compounded monthly, or the maximum rate allowable by law, whichever is less. Customer will also pay all reasonable attorneys’ fees and other costs of collection if any are incurred by AOVATALK.
7. SERVICES ORDERED. AOVATALK reserves the right to charge, and Customer shall pay an additional $____ surcharge per Short Duration Call, which shall be in addition to customer’s contractual usage rates.
8. FLAT RATE TERMINATION SERVICE. For Domestic Termination, AOVATALK provides single rate pricing, also known as flat rate or fixed rate pricing for its domestic termination services. AOVATALK’s single rate pricing structure is an alternative to its pricing model. In order to AOVATALK to be able to sell domestic termination services for a single rate to all of the locations provided, AOVATALK depends on a balanced amount of traffic from its Customer to go to highly populated destinations where AOVATALK’s cost is reduced as well as to outlying destinations that may be more expensive to AOVATALK.
To continue to provide a single rate price to Customer, AOVATALK reserves the right, at its discretion, to immediately, automatically, and without further notice discontinue providing the service to any destination that would result in the Average cost to AOVATALK of Customers traffic received by AOVATALK for Termination to the PSTN to exceed 80% (“Excessive Costs”) during the Average Cost Measure Period (Average of weekly, daily and hourly averages). AOVATALK may at its discretion, immediately, automatically and without further notification resume Termination of Customers traffic to those destinations when doing so does not cause a continuance of Excessive Costs to AOVATALK.
9. CONFIDENTIALITY. Each Party shall maintain the confidentiality of all information or data of any nature (“Information”) provided to it by the other Party hereto, provided such Information contains a conspicuous marking identifying it as “Confidential” or “Proprietary” or is inherently of a confidential nature (e.g., customer or cost data). For purposes of this Article, this Agreement and all of its Attachments shall be considered “Confidential”. Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect the Information it receives hereunder as it accords to its own Confidential Information. The above requirements shall not apply to Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party is already publicly available. This Agreement shall not prevent any disclosure of Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify and obtain consent from the disclosing Party of this required disclosure.
The Customer acknowledges and agrees that the Company may collect and hold information about the Customer and the End Users. Such information may be obtained from the Customer or generated within the Network or through the Customer’s use of the Services. The Company may retain such Personal Data as long as is necessary to implement, administer and manage the reasonable purpose(s) for which such Personal Data was collected. When the Company no longer needs such Personal Data, the Company will remove it from its systems. If the Company retains such Personal Data longer, it would be to satisfy the Company’s legal obligations and in compliance with any Applicable Privacy Laws.
The Company may share the information it collects about the Customer and End Users with its employees, contractors, agents, suppliers, Affiliates and Network operators (collectively referred to as “Agents”) for all lawful purposes connected with the provision of the Services. The Company acknowledges and agrees to maintain the confidentiality of all Personal Data and will not disclose the Personal Data to any other person, unless the Customer’s prior written consent has been obtained in each case or the Agreement specifically authorizes the disclosure, or as required by law. If a law, court, regulator, supervisory authority or other relevant law enforcement authority requires or permits the Company to Process or disclose Personal Data, the Company must first inform the Customer of the legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the Applicable Law or authority prohibits such notice.
10. LIMITATION OF LIABILITY: Customer acknowledges that AOVATALK has no control over how a foreign administration or third-party carrier establishes its own rules and conditions pertaining to telecommunications services. Customer agrees that AOVATALK, its directors, officers, employees and agents shall not be liable for any loss or damage sustained by Customer, its interconnecting carriers, its customers or its end users, among other individuals and entities, due to any failure in or breakdown of the communication facilities associated with providing the Services, for any delay, interruption or degradation of the Services, whatsoever shall be the cause or duration thereof, or for any other cause or claim whatsoever arising under this Agreement. Customer shall remain solely responsible for any and all charges and damages arising out any conduct described in this section.
The Parties agree that AOVATALK may, as required and in its sole discretion: temporarily suspend the Services for the purpose of repair, maintenance or improvement of equipment, software or telecommunication services, and any cabinets or ducts enclosing them; vary the technical specification of the Services for operational or regulatory reasons; or give instructions about the use of the Services resulting from any mandatory government laws and regulations that become applicable during the term of this Agreement. Such instructions shall, while they are in force, be deemed to form part of this Agreement. Each party shall also advise the other party of items that are believed to be reasonably necessary in the interests of safety or for improving the quality of the Services.
11. LIMITATION OF AOVATALK ‘S LIABILITY FOR MISUSE OF CUSTOMER’S SERVICE. AOVATALK shall not be liable at all for the use, misuse, or abuse of a Customer’s Service or Customer’s facilities by Customer, Customer’s agents or employees, or third parties including, without limitation, members of the public. For example, AOVATALK is not liable for any damages, including any damages for claims brought due to a Customer’s violation of AOVATALK’s Acceptable Use Policy or toll usage charges, the Customer may incur as a result of the unauthorized placement of calls (i) from the Customer’s premises; (ii) through Customer-provided equipment that are transmitted or carried on the AOVATALK network; (iii) to Customer’s Toll-Free Prefixes in error, and (iv) otherwise using Customer’s Services. AOVATALK may work with Customer, if requested, to recommend possible solutions to reduce unauthorized use of the Services and Customer’s facilities.
12. INDEMNIFICATION. AOVATALK and Customer agree to indemnify and hold harmless the other, its respective officers, agents, employees, contractors, subcontractors, suppliers, invitees, and representatives, from and against any and all third party claims, including without limitation claims by Customer’s customers, of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) for physical injury or death or damage to real property to the extent caused by the indemnifying Party’s gross negligence or willful misconduct. If the indemnifying Party acknowledges in writing its obligations under this Section, the indemnifying Party will have the right to conduct the defense of such claim or action and all negotiations for settlement or compromise. However, the indemnified Party, at its own expense, may participate in the defense of any such proceeding through counsel of its choosing.
13. TERMINATION. In addition to any other rights at law or in equity, or those stated elsewhere in this Agreement, AOVATALK may immediately suspend the delivery of Services and/or terminate this Agreement in the event that Customer (i) fails to provide a Deposit as required in this Agreement; (ii) fails to make payment for prepaid domestic service then due without any notice or fails to make payment for other measured services when due; (iii) becomes insolvent or bankrupt or ceases paying its debts generally as they mature;(iv) for Customer’s lack of use: on written notice to Customer by AOVATALK or (vi) commits a breach of any of the terms of this Agreement (other than a breach of the Deposit or payment obligation as addressed in (i) and (ii) above) and fails to remedy such breach within three (3) days after receipt of written notice thereof from AOVATALK. In the event of any termination of this Agreement, Customer shall pay AOVATALK for all Services rendered through and including the date of termination, in addition to any other charges established by this Agreement.
Customer understands and agrees that any breach by Customer of its obligations under this Agreement shall also be deemed a breach by Customer of its obligations under any other agreements it has entered into with AOVATALK and/or its affiliates and understands and agrees that such breach shall authorize AOVATALK and/or any of its affiliates to immediately suspend performance under, and/or terminate, said agreements with Customer for default if such breach(es) have not been cured within the time provided for in this Agreement.
14. TELEMARKETING TRAFFIC. AOVATALK does not admit for termination any dialer –originated telemarketing traffic or any fax broadcasts, including any traffic that would violate the Telephone Consumer Protection laws, which may prohibit the sending of facsimile advertisements without the prior consent of the recipient.
15. INTELLECTUAL PROPERTY. AOVATALK will have and retain full and exclusive ownership of all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including any AOVATALK work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing (collectively, “AOVATALK Property”). The intellectual property rights associated with AOVATALK Property are referred to collectively as “AOVATALK”. Except as provided in an Attachment, Customer receives no right, title, or interest in or license to use any AOVATALK intellectual property. However, Customer does receive a non-exclusive, nontransferable, terminable license to use such of the AOVATALK that is necessary for Customer to exercise its rights hereunder, but solely in connection with and only for the term of the applicable Service and subject to the terms of any applicable Attachment.
16. NOTICES. All notices, requests or other communications hereunder shall be in writing, addressed to the Parties at the address indicated in the caption of this Agreement or as otherwise stated in the relevant Attachment hereto. Notices mailed by registered or certified mail shall be deemed to have been received by the addressee on the third business day following the mailing or sending thereof. Notices sent by facsimile or electronic mail shall be conclusively deemed to have been received when the delivery confirmation is received.
17. COMPLIANCE WITH LAWS. (a) This Agreement and its continuance hereof are contingent upon the obtaining and the continuance of such approvals, consents, governmental and regulatory authorizations, licenses and permits as may be required from any third party provider or deemed necessary by the Parties, and the Parties shall use commercially reasonable efforts to obtain and continue same in full force and effect. (b) Customer shall not use the Services in any manner or for any purpose that constitutes a violation of applicable laws in any jurisdiction in which the Services are being provided and shall indemnify AOVATALK against, and hold and save it harmless from, any such unlawful use of the Services. (c) Customer shall be solely responsible for complying with all laws, rules and regulations concerning the delivery of 911 and E911 service to its customers and to end-users, and shall indemnify AOVATALK against, and hold and save it harmless from, any violation of such laws, rules, and regulations.
18. GOVERNING LAW. This Agreement shall be governed by the laws of Hong Kong, China without reference to its principles of conflict of laws. Customer irrevocably consents and submits to personal jurisdiction in the state courts.
In the event an action is brought, or an attorney is retained by AOVATALK to enforce the terms of this Agreement or to collect any moneys due hereunder, AOVATALK will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, reasonable costs of investigation and other related expenses incurred in connection therewith.
19. WAIVER OF TRIAL BY JURY. The Parties hereto hereby knowingly, irrevocably, voluntarily, and intentionally waive any rights to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement or arising out of, under, or in connection with this Agreement or any document or instrument executed in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or action of any Party hereto. This provision is a material inducement for AOVATALK and Customer entering the subject transaction.
20. AUTHORITY TO CONTRACT. The signatory to this Agreement on behalf of Customer represents and warrants that he/she has full capacity and authority to enter into this Agreement on behalf of Customer, and that he/she has taken all steps necessary to obtain and achieve said authority. To the extent that such authority is found wanting by a court, he/she agrees to immediately take all steps necessary to obtain and achieve said authority, and that until he/she does so, he/she will remain personally liable for all obligations contained herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate, or caused this Agreement to be executed in duplicate by a duly authorized officer, as of the date first above written.