By signing your Emajee Data/Voice Service Agreement (either in electronic or print form) or using our Services, you accept (in other words, agree to be legally bound by) these Agreements and confirm that, by doing so, you are not violating the terms of any agreement you may have with another provider of services. Our website always contains the most current versions of our Terms and Conditions.
- SERVICES: Emajee, Inc., a Nevada Corporation with a mailing address of 848 N. Rainbow Blvd., Suite 3422, Las Vegas, NV 89107 ("Provider") agrees to furnish to you (the "Customer") the services high-speed Internet and enhanced voice services as set forth in the short form Emajee Data/Voice Services Agreement and this Service Agreement (the "Services"). The terms and conditions set forth in the Emajee Data/Voice Services Agreement are incorporated by reference and specifically made a part of this Agreement (collectively, the "Agreement").
TERM, RENEWAL AND TERMINATION:
The initial term of this Agreement shall commence on the date service is provisioned to Customer. In addition, Provider may terminate this Agreement and/or terminate or suspend or reduce any Services provided to Customer under this Agreement under the following conditions:
- Immediately and without notice or liability in the event that Provider deems such action necessary or desirable due to Customers' use of Services for unlawful purposes or in an unlawful manner, or in order to protect or preserve Providers' network.
- Immediately and without notice or liability in the event that Customer fails to pay for services rendered pursuant to this Agreement, or breaches this Agreement to provide adequate security to Provider in accordance with Section VII of this Agreement; Provider may at any time suspend and/or terminate services to Customer if Provider feels that Customer is a threat to its business and/or network connectivity in any way without notice.
- Immediately and without notice or liability in the event that Provider deems such action is necessary to protect Provider’s business and/or network connectivity.
- In the case Provider prematurely terminates this Agreement and Customer has a remaining balance, Provider will refund to Customer the entire balance amount remaining. In the case Customer prematurely terminates this Agreement, Customer will be responsible to pay the remaining Monthly Recurring Fees due on the term of the contract along with an applicable usage fee penalty for each month service is prematurely cancelled.
- NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, PROVIDER RESERVES THE RIGHT IN ITS SOLE DISCRETION TO RESTRICT OR LIMIT CUSTOMER’S USE OF, OR ACCESS TO, A TRUNK GROUP IF PROVIDER BELIEVES THAT CUSTOMER IS MISUSING THE TRUNK GROUP BY SELECTIVELY SENDING TRAFFIC WITH AN EXCESSIVELY HIGH CORRESPONDING COST TO PROVIDER (SOMETIMES REFERRED TO AS “CHERRYPICKING” TRAFFIC). PROVIDER reserves the right to unilaterally modify, cancel or amend any Service Pricing for any destination by providing immediate notice to Customer.
- Upon expiration of the initial commitment period, this agreement shall automatically renew on a month-to-month basis until notice is provided by Customer to Provider 30 days prior to the requested termination date.
- CONNECTIONS: Connections provided by Provider to Customer shall be those set forth in the short form Emajee Data/Voice Services Agreement.
PRODUCT RATES, CHARGES AND DISCLOSURES: The rates and charges for Services provided in accordance with this Agreement are set forth on the short form Emajee Data/Voice Services Agreement. Customer understands and agrees that such rates may be adjusted to the extent mandated by any regulatory authority to which Provider is subject. Additionally, Customer understands and agrees that Provider reserves the right to change any or all of the charges, rates or calling destinations reflected on the short form Emajee Data/Voice Services Agreement upon three (3) days' prior written notice to the Customer, if Customer is deemed to be excessively abusing any flat rate voice product. For sake of example excessive abuse shall be deemed if any of the terms of this agreement are not met or complied with. If any surcharges imposed by a federal, state or governmental agency, Provider reserves the right to increase the charges under this Agreement immediately without prior written notice to Customer.
Billing for all services will be calculated on a monthly basis for Customer. Customer usage duration on voice services will be calculated on a 2-digit rounding basis.
Domestic voice calls shall be billed with a minimum charge of 18 seconds followed by 6 seconds each increment thereafter. International calls shall be billed with a minimum charge of 30 seconds followed by 6 seconds increment thereafter with exception for calls to Mexico in which calls will be charged at a minimum of 60 seconds initially and 60 seconds thereafter. If Customer exceeds a 15% short call duration (Calls less than 18 seconds) threshold during any 30 day billing cycle, all calls will be subject to a 0.05 per minute surcharge.
Billing for all data services will be one month in advance. A pro-rated bill shall be generated for the first month of service to include the pro-rated amount plus the month in advance.
Cherry picking and/or excessively calling a particular NPA-NXX or OCN is strictly forbidden and is subject to a breach of this agreement if customer is caught doing so. Further Customer shall maintain a 80/20 split between RBOC versus high tariff destinations. 80% of all calls shall be destined for an RBOC territory and 20% shall represent the high tariff territories. High tariff is deemed to be anything completing to an ILEC.
Should Customer claim any exemption of any sales, use, or other tax, then Customer must provide such proof of exemption to Provider. In no event shall Provider be liable for any taxes due by Customer and Customer will indemnify Provider if any such claim for taxes is made. Provider will invoice Customer for taxes that are not covered by a valid tax exemption certificate properly filed with Provider. In case Customer provides a valid exemption certificate, Provider at its discretion has the right to move Customer to a wholesale account which may invalidate the terms of this agreement. This Agreement is meant for retail Customer only and does not allow resale of voice or data services purchased under this Agreement.
Unlimited Business Phone Packages are subject to the Acceptable Usage policy below.
Customer understands and agrees that after the Agreement has been executed, Provider shall perform an on-site inspection for installation of the ordered services. In the case where installation services are above and beyond a typical installation, Provider will provide Customer with an estimate for costs related to installation and at that time Customer shall have the option to agree to such costs and pay for them or cancel this agreement with no penalties to Customer for early termination of this agreement. For sake of this agreement a typical installation includes running CAT5e or equivalent cable to the customer's premises using existing building conduit or piping and mounting the antenna at a designated point within reasonable distance from the customer's premises.
E911 Service is offered to all business package customers. The E911 information that will be provided to the local authorities in case an emergency shall arise is the address listed below along with the respective contact information. Failure to provide this information accurately may result in local authorities having the wrong location on-file for emergency services. In either case provider shall be held harmless for any issues that may arise due to customer's inability to access the PSAP or E911 system.
FOR VOICE SERVICES ONLY: Customer is hereby authorizes Provider to become Customer's service provider for Local, Local Toll, Long Distance and International Phone Services. Customer acknowledges that Provider provides its services for voice thru voice over Internet protocol technology and therefore is considered a VoIP provider and not a traditional wire line provider. Customer hand-off for access to the Provider's network may be in the form of traditional method (ie: PRI, T-1 CAS, T-1, POTS, FXO, FXS, DS3, OC3) however all voice traffic is transmitted thru a proprietary voice network using VoIP technology. Customer hereby fully authorizes Provider to contact all current providers in order to switch services and make Provider the primary providers for such services should the case arise. Customer hereby acknowledges that only the numbers listed in a Customer provided LNP form (for Local DID's) and RESPORG (for Toll Free) shall be requested to transfer from the current providers and failure to list certain numbers may cause the numbers to be lost forever or ring disconnected. In such case Customer holds Provider harmless for any liability. Customer hereby acknowledges that in case an LNP or RESPORG is requested that Provider will make its best efforts to minimize any service interruptions however cannot be held responsible for any reason whatsoever in case such service interruption occurs. Customer hereby acknowledges by porting their number to Provider, that Provider shall assume the ownership of such number during the contractual term agreed upon by Customer and Provider. Ownership of such number(s) shall be released and transferred back to owner under two conditions (1) Expiration of the active agreement, (2) Written authorization for early release authorized by Provider.
PAYMENT TERMS: Customer shall make payments on the respective due dates as mentioned on the invoices. This is generally once per month and due within 7 business days of invoice receipt.
IN CASE CUSTOMER IS LATE, A LATE FEE OF 1.5% OF THE BALANCE DUE WILL BE APPLIED AS PENALITIES AND INTEREST OR AN AMOUNT OF $50.00 PER INCIDENT, WHICHEVER IS GREATER AND ALLOWABLE BY LAW. In case where any of the days are a holiday, payment shall be remitted on the prior business day.
Failure to pay any undisputed bills to Provider within the time specified shall subject the Customer to suspension of services and Customer shall be considered in default of this Agreement. In case of such suspension Customer's service will be unable to make and receive calls except for dialing emergency numbers (i.e.: 911). Such notices of suspension and default shall be provided via mail to Customer within 5 days of such default. If within 10 days, Customer does not cure the default or come to terms with the Provider, Customer's account shall be terminated and services permanently suspended and all amounts due on the account shall become due immediately.
BILLING DISPUTES: If Customer, in good faith, disputes any invoice amount, it shall, within seven (7) days from the invoice date, provide a written notice of such dispute to Provider. Such notice shall include the amount of the disputed charge(s), an explanation of the basis for the dispute and all available supporting documentation.
Customer may not unilaterally deduct any disputed amount from the total due under any invoice unless Provider, at its sole discretion, agrees that Customer will deposit the disputed sum into an escrow account. Such sum will be released to the awarded side upon the parties resolving the dispute among them or due to an arbitration award as provided herein.
Failure to pay the undisputed portion of any bill provided by Provider within the terms as outlined by the Invoice shall be grounds for immediate suspension of all services. If an invoice is more than 30 days past-due, Provider at its discretion, reserves the right to terminate this contract for breach and pursue Customer for such breach.
In the event that Provider and Customer are unable to resolve a billing dispute, the matter shall be submitted to arbitration for resolution of the dispute. Arbitration shall be the sole and exclusive remedy for resolving billing disputes between the parties. Arbitration shall be conducted through the American Arbitration Association, with hearing of the dispute to occur in Los Angeles, California. Arbitration shall be held before a single arbitrator. Such arbitrator may not limit, expand or otherwise modify the terms of this Agreement. The arbitrator shall not have the authority to award punitive or other non-compensatory damages to either party. Each party shall bear its own arbitration costs and expenses. The parties, their representatives and the arbitrator shall hold the existence, content and results of the arbitration in confidence, except as shall be necessary, to obtain judgment upon the arbitration award, which judgment may be entered in any court of competent jurisdiction.
One Year Limit: Customer waives (in other words, give up) the right to commence any proceeding against Provider if the relevant events occurred more than one year earlier.
SECURITY AND CREDIT CHECK: At any time during the term of this Agreement, Provider may request Customer to furnish a security deposit in cash or in the form of a Letter of Credit to secure Customer's performance and obligations under the provisions of this Agreement. Such Security Deposit may be in the amount to be determined by Provider and shall not exceed estimated usage ? based upon either initial projections or most recent invoices.
Furthermore, if at any time or from time to time, Provider deems such security to be insufficient in any way, it reserves the right to withhold or reduce Services to Customer or to require Customer to furnish an additional security deposit in an amount acceptable to Provider.
Upon termination of this Agreement, any security deposits furnished by Customer to Provider hereunder shall be returned to Customer, provided that such deposits shall be reduced by any amounts due from Customer to Provider, whether arising under this Agreement or elsewhere.
Customer hereby authorizes Provider to run any relevant credit checks necessary to verify the authenticity of the contracted party and to check the financial stability of the company for any lines of credit the Provider may issues in conjunction with providing service to Customer.
- MINIMUM USAGE: Minimum usage requirements are governed within the short form Emajee Data/Voice Service Agreement. If no minimum usage requirements are provided, then no minimum requirements are set forth. Failure to meet the minimum requirement if provided within the short form Emajee Data/Voice Service Agreement will result in the remaining unused/unmet balance being charged to the following month's bill.
- SERVICE COMMITMENT TERM: The Service Commitment Term will be governed by the selected term on the incorporated short form Emajee Data/Voice Service Agreement. Prematurely terminating the Agreement prior to the expiration of the Service Commitment Term shall immediately make Customer liable for 75% of the remaining amount due on all monthly recurring charges for the remaining term of the Agreement. In case a special per minute rate was provided or installation charges waived due to the term of the Agreement, such charges and fees shall be retroactively re-instated and become due immediately.
- Usage Taxes: Customer shall be responsible for paying all applicable government taxes and/or surcharges as imposed by their local jurisdiction.
- Consents: Customer shall obtain at its own expense any governmental or regulatory consents or certifications with respect to the utilization of Provider's network as contemplated by this Agreement.
- Technical Information: Customer shall, upon Provider's request, promptly furnish any technical information or specifications relating to its system as may be reasonably required by Provider:
- Unlawful Use: Customer shall not permit or suffer the use of the POP(s) or Provider's system or facilities for any use or purpose not permitted by law.
- Connection Charges: Customer shall be responsible for all charges, materials, equipment, and labor to bring Customer's network to the designated POP(s) identified in Section III above, subject to Provider's prior review of any such plans or arrangements. Provider will be responsible for the actual connection of Customer's network to Provider facilities at the designated POP(s).
- Reselling: Customer shall not resell any services provided by Provider without the expressed written authorization.
- Short Duration Calls: Customer shall not place calls of massive short duration on Provider's network. Massive short duration in this case is considered to be 5% of the total call volume. Short duration means calls less than18 seconds long. Violation of this rule shall be grounds for immediate breach of agreement and suspension of services.
- Fraud: Customer shall indemnify and hold Provider harmless from all costs, expenses, claims or actions relating to fraudulent calls to the extent such claims are made by or on behalf of an end-user of Services through Customer. Customer shall not be excused from paying Provider for Services provided to Customer or any portion thereof on the basis that fraudulent use comprised a corresponding portion of the Services. In the event Provider discovers fraudulent calls being made (or reasonably believes such calls are being made), Provider shall have the right to take any action, with or without notice to Customer, that is reasonably necessary to prevent such fraudulent calls from being made, including, without limitation, denying Services to particular calling parties or terminating Services to or from specific locations. Provider shall not, however, have any obligations to monitor its Services or take any other action to detect fraudulent calls.
- Access to Equipment: You will allow us to enter your premises to install, maintain or replace equipment and to make sure our Services are operating and being delivered properly to you and your neighbors. If you stop receiving Services from us, you may terminate these rights by giving us one year's advance notice. You confirm that you are authorized to grant the rights described in this paragraph.
- Repairs: After we install or remove equipment or wiring on your premises, you are responsible for any repairs or cosmetic corrections you wish to make. We have an obligation to make such repairs only if we performed our work negligently and your property was damaged as a result.
- Downloads: Provider can make changes to equipment and software through downloads from our network or otherwise. To deliver the Services, we may from time to time download software and make other changes to Customer-owned equipment, which may change the features and functionality of Customer-owned equipment. You represent that you have the authority to grant us access to such equipment to make such changes.
- Equipment Location: Customer may not move our equipment to any location other than the location where you initially received the Services. This is true even if you have moved to a new location and continue to pay us for the Services.
- Equipment Returns: Customer must arrange to return the equipment to us in good condition when the Services are terminated and, if you fail to do so, we have your permission to retrieve the equipment from your premises at your expense. You are responsible for applicable fees until we receive the equipment. If we do not receive the equipment within a reasonable amount of time after the Services are terminated, we are entitled to assume that you have lost the equipment.
- Lost or Damaged Equipment: If the equipment is lost, stolen, damaged or tampered with, you must reimburse us (as "liquidated damages") even if you are not at fault. The liquidated damages amount for our equipment is available on request from Provider. You agree that this liquidated damages approach is reasonable in light of the difficulty of determining the value of the equipment or the losses we could suffer if a third party improperly gained access to our Services using equipment we provided to you.
- Recovered Equipment: The equipment we provide to you always belongs to us even if you reimburse us for the cost of it. If you find or recover lost equipment, you must return it to us. You may not remove or alter our logos or other identifying information (for example, serial numbers) on the equipment.
The Service Commitment Term will be governed by the selected term on the incorporated short form Emajee Data/Voice Service Agreement. Prematurely terminating the Agreement prior to the expiration of the Service Commitment Term shall immediately make Customer liable for 75% of the remaining amount due on all monthly recurring charges for the remaining term of the Agreement. In case a special per minute rate was provided or installation charges waived due to the term of the Agreement, such charges and fees shall be retroactively re-instated and become due immediately.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY STATED ELSEWHERE IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTY, EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, DESCRIPTION OR FITNESS FOR A PARTICULAR PURPOSE.
In no event shall Provider be liable to Customer or to officers, employees, directors, agents and representatives, customers or any other third party, in any respect, for any damages either direct, indirect, consequential, special, incidental, actual, punitive, or any other damages, or for any lost profits of any kind or nature whatsoever, arising out of any circumstances not amounting to bad faith or willful misconduct by Provider, and in no event shall Provider be liable in any respect for interruptions in service of any kind, or defects in transmission, or delays, including those which may be caused by regulatory or judicial parties. Customer acknowledges that Provider makes no warranty to Customer or any other person or entity, whether express, implied, or statutory, as to the description, quality, merchantability, completeness or fitness for any purpose of Services provided hereunder or described herein, or as to any other matter, all of which warranties by Provider are hereby excluded and disclaimed. Customer shall indemnify and hold harmless Provider, its stockholders, officers, directors, employees and agents from any and all damages, arising out of the provision of services by Customer to its customers, however such damages are occasioned, as well as any damages arising as a result of a breach by Customer of this Agreement.
Each party shall be responsible to the other party for the actual, physical damages directly caused by its negligent acts or omissions in the course of its performance under this Agreement, limited to damages resulting from personal injury or death to a party's employees and loss or damage to a party's personal tangible property. Damages under this Section will be subject to the limitation of liability in this Agreement but not the Damage Cap.
Definition: The parties hereto each agree that the following information shall be deemed "Confidential Information" under the terms of this Agreement:
- The terms of this Agreement (including the rates and charges for Services provided hereunder);
- Any information revealed by Provider or Customer in connection with this Agreement;
- Any other information or data, in any form, that is sensitive, proprietary or otherwise held in confidence by the other party, including information relating to the services, products or activities of such party or its customers, employees or agents. Notwithstanding the foregoing, Confidential Information shall not include information which a party voluntarily discloses to the public without restriction, or which is otherwise known to the public at large.
- Disclosure: Throughout the term of this Agreement and thereafter, neither party shall disclose, whether by private communication, public address, publication or otherwise, any Confidential Information to anyone who has not been expressly authorized to receive such information by the appropriate party (or parties) in accordance with the terms of this Agreement.
- Injunctive Relief: The parties hereto recognize that irreparable damage may result if either party hereto fails or refuses to perform its obligations under this Section XII, or that the remedy at law for any such failure or refusal may be inadequate. Accordingly, in addition to any other remedies and damages available (none of which are hereby waived), the injured party shall be entitled to seek injunctive relief and the breaching party may be specifically compelled to perform its obligations under hereunder.
- Definition: The parties hereto each agree that the following information shall be deemed "Confidential Information" under the terms of this Agreement:
- Customer's use of the Services may not be used to engage in any conduct that interferes with Provider's ability to provide service to others, including the use of excessive bandwidth.
- Customer may not use the Services for any enterprise purpose whatsoever whether or not the enterprise is directed toward making a profit.
- Customer may not use the Services in a manner that interferes with Provider's efficient operation of its facilities, the provision of services or the ability of others to utilize the Services in a reasonable manner. Provider may use various tools and techniques to protect the security and integrity of its networks, which may include detecting malicious traffic patterns, preventing the distribution of viruses or other malicious code, and such other tools and techniques as Provider may from time to time determine appropriate.
- Provider, at its sole discretion, shall be entitled to terminate Services to Customer for any reason whatsoever, including any usage by Customer that is detrimental or unnecessarily burdensome to Provider and its network, business, customers, and/or suppliers.
- Applicable Law: This Agreement shall be construed and governed in accordance with the laws of the State of California with respect to any dispute arising under this Agreement, other than billing disputes, which are to be resolved by arbitration in accordance with Section VI, the parties hereby reserve all rights and remedies available to them under the laws of the State of California. Customer specifically consents to the jurisdiction of the courts of the State of California for the purpose of resolving any such dispute.
- Waiver: A waiver by either party of a breach of any provision of the Agreement shall not constitute, nor operate as, a waiver of any subsequent breach.
- Entire Agreement: This Agreement, as it may be amended from time to time, constitutes the entire agreement between the parties with respect to the Services contemplated herein. This Agreement may be modified only by a subsequent written document signed by the parties. This Agreement may be executed in one or more duplicate originals, all of which shall constitute but one agreement between the parties hereto.
- Partial Invalidity: The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
- Headings & Interpretation: All headings contained herein are inserted for convenience only and do not constitute a part of the Agreement and these General Terms. The words and phrases used herein shall have the meaning generally understood in the telecommunications industry. This Agreement shall be construed in accordance with its fair meaning and not for or against either party on account of which party drafted this Agreement.
- Assignment: This Agreement and any rights or obligation arising under it may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. For the purposes of this provision, it is expressly agreed that Provider may withhold consent to any assignment, which, in its sole discretion, would result in insufficient security under the terms of Section VII of this Agreement.
- Benefit: This Agreement shall be binding upon and inure to the benefit of Provider, Customer, and their respective successors and assigns.
Notice: Notices under this Agreement shall be deemed sufficient and in accordance with the terms of this Agreement if delivered as follows:
- Notices of Rate Changes: Notice of any change in Provider's rates, as described in Section IV of this Agreement, shall be in writing and delivered via facsimile or email (with an original copy to follow by certified mail, return receipt requested, or overnight courier) to the persons whose name and business address listed on the short form Emajee Data/Voice Service Agreement and such notice shall be effective as of the date of the facsimile or email delivery confirmation receipt.
- All Other Notices: All other notices under this Agreement shall be in writing and delivered by certified mail, return receipt requested, overnight courier, facsimile or email (with an original copy to follow by certified mail, return receipt requested, or overnight courier) to the persons whose names and business addresses appear on the short form Emajee Data/Voice Service Agreement and such notice shall be effective on the date of receipt or refusal thereof by the receiving party.
- If to Provider: Emajee, Inc., 848 N. Rainbow Blvd., Suite 3422, Las Vegas, Nevada 89107.
- No Agency: Neither party is authorized to act as an agent for, or legal representative of, the other party, and neither party shall have the authority to assume or create any obligation on behalf of, in the name of, or binding upon the other party. Customer shall not represent or intimate that Provider is responsible for the type or quality of Customer's Services to its customers.
- Force Majeure: Provider shall not be liable for any failure, interruption or diminution of service in the event that such failure, interruption or diminution is the result of an act of God, natural disaster, fire, civil or military authority, insurrection, riot, war, national emergency, strike or other labor dispute, power failure of other carriers or exchanges, flood, explosion, or other cause out of Provider's reasonable control.
- No Transfers or Assignments: Except with Provider's consent, Customer may not transfer or assign to any other person (in other words, make another person legally responsible for) the Services or your rights or obligations under the Agreement.
- Conflicts with Certain Other Agreements: In the event of a conflict between the terms of this Agreement and the terms of any other document, then the terms of this Agreement shall control.
- TERMS SUBJECT TO CHANGE: All terms and conditions related to Provider's provision of Services to Customer are subject to change without notice. Provider, at its sole discretion, retains the right to change any of the terms and conditions of its provision of Services to Customer for any reason and without any prior notice to or consent from Customer. Provider will endeavor to provide the most up-to-date version of the terms and conditions on its website, and Customer acknowledges that it is Customer's duty and responsibility to periodically check the website or otherwise contact Provider for the most current version of the terms and conditions.