Broadsmart’s Legal Policy

Broadsmart’s Legal Policy

BROADSMART SERVICES AND EQUIPMENT TERMS

1.7 (11.01.2018)

BEFORE USING THE SERVICES PLEASE READ THESE SERVICE AND EQUIPMENT TERMS (THESE “TERMS” OR THE “AGREEMENT”).  THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”). PURSUANT TO THESE TERMS, CUSTOMER SHALL HAVE THE RIGHT TO USE THE BROADSMART SERVICES. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND BROADSMART, GLOBAL, INC., ITS AFFILIATES AND SUBSIDIARIES (“BROADSMART”) EFFECTIVE AS OF THE LAST DATE OF EXECUTION OF THE ORDER FORM.  

Pursuant to FCC requirements Broadsmart is required to advise its customers of any limitations that E911 service may have in comparison to traditional 911 service, which are set forth in Section 15 below and in the E911 Disclosure. If you are uncomfortable with the limitations of the Broadsmart E911 service, you should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the Services. It is strongly recommended that you have an alternative means for placing emergency calls available at all times.

  1. Definitions – Broadsmart shall provide Customer the voice and advanced communications services, collaboration services, and any associated software or web-accessible portals detailed in the Order Form (the “Services”) in accordance with the terms of this Agreement.
    1. “Broadsmart Equipment” means telecommunications equipment purchased by Customer from Broadsmart as set forth in an Order Form.
    2. “Connection Date” shall be defined as the date on which the Services and the Equipment are first available for use. If Customer delays the ability of Broadsmart to provide the Services, including through failure to produce required Customer Equipment or Third-Party Equipment, the Connection Date shall be deemed to be the date on which Broadsmart was able and ready to deliver the Broadsmart Equipment and Services.
    3. “Customer Equipment” means all equipment and facilities necessary for the installation of the Equipment and Services at the Service Location(s) to be provided by Broadsmart exclusive of any Broadsmart Equipment or Third-Party Equipment. The Customer is responsible for ensuring that all facilities, Customer Equipment and Third-Party Equipment are available for installation and connection of the Broadsmart Equipment and Services on the Installation Commitment Date. By way of example, but not inclusive, the Customer is responsible for ensuring there are data ports and electrical outlets at the Service Locations so that the Equipment and Services can be installed and connected. Broadsmart will make reasonable efforts to advise Customer of what, if any, Customer Equipment may be necessary for the provision of Services.
    4. “Equipment” or “Equipment” means all physical equipment called for in the Order Form, inclusive of Broadsmart Equipment and Third-Party Equipment.
    5. “Installation Commitment Date” shall mean the date upon which Broadsmart receives instructions that the Service Location(s) is/are available and ready for installation of service by the local loop or circuit provider, if applicable. If there are multiple Service Locations, the Installation Connection Date shall mean the date by which Broadsmart receives the instructions for the first of any and all Service Locations (the “First Location”).
    6. “MMF” shall mean the Services minimum monthly fee committed by Customer in the applicable Order Form. The MMF may increase from time to time as Customer orders more Services but may never decrease by more than 15% without prior written consent of Broadsmart or pricing may be adjusted. Any decrease in MMF excludes broadband network access, network related circuits or any managed service provided by Broadsmart.
    7. “MRC” shall mean the monthly recurring charges for the Services or any Broadsmart Equipment sold on an installment sale basis, as set forth in an Order Form.
    8. “NRC” shall mean non-recurring charges, which may include but it’s not limited to fees for the purchase of Broadsmart Equipment, installation charges, set-up charges, usage-based charges, rental fees and other charges and fees. It is understood that NRC shall be part of the Initial Payment provided to Customer after the Connection Date, or on the invoice immediately following the provision of Equipment and/or Services requested by Customer.
    9. “Order Form” means the order form executed by Customer and Broadsmart or a Reseller through which Customer purchases Broadsmart Equipment and Services.
    10. “Reseller” means a third-party authorized to resell Broadsmart Equipment and Services.
    11. “Service Locations” means the Customer locations at which the Equipment and Services are to be used as set forth in an Order Form.
    12. “Third-Party Equipment” means the telecommunications equipment purchased or leased by Customer from a third-party other than Broadsmart, which equipment is used in connection with Customer use of the Services.
  1. Initial Payment. The initial payment, unless otherwise agreed in writing, shall equal all NRC, and is due within five (5) business days after Customer executes the Order Form (the “Initial Payment”). Should Customer choose to add the NRC to a third-party finance lease agreement, Customer agrees to execute and produce a fully executed copy of such lease prior to the applicable Connection Date. Customer understands that Broadsmart will begin to requisition all Broadsmart Equipment and begin to facilitate the provision of Services immediately after Customer executes the Order Form.  Therefore, Customer understands that the Initial Payment shall be non-refundable, unless Broadsmart is unable or unwilling to provide the Broadsmart Equipment and/or Services called for in the applicable Order Form.

 

  1. Invoicing and Payment. Other than the Initial Payment, invoices will be sent to Customer on a monthly basis. MRC related to the provision of the Services are invoiced one month in advanced (on the first day of month) and NRC are invoiced in arrears unless otherwise indicated in the Order Form. Payment shall be due thirty (30) days after the invoice date.  Payment shall be made by U.S. Mail using Check, Money Order or Certified Funds. Customer may choose to receive its invoice via email on the same day the invoice is created.

 

  1. Failure to Make Payment. Any payment not received from the Customer by the due date (except with respect to charges then under reasonable and good faith dispute) shall constitute a default by Customer. If Customer defaults on payment and fails to cure such default within ten (10) days after due notice thereof, Broadsmart shall be entitled to suspend and/or discontinue Services without any further liability to Customer.  If obligated by local, state or federal law, Broadsmart will permit “911 Emergency” service (or any other service required to be provided by law) after default.  In addition, in the event of default, payment shall accrue at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. Charges for returned, stopped payment and/or non-sufficient funds via check or direct deposit payment will be assessed a returned check fee of $100.00 per returned check or deposit.  The foregoing charges shall be deemed service charges and not the only remedies for breach of this Agreement.  Additional remedies for breach of this Agreement by Customer are applicable.

 

  1. Taxes and Regulatory Fees. As applicable and as required by state, federal or local law, invoicing shall include all requisite taxes (e.g., federal telecommunication taxes, sales tax, state taxes, facilities tax and any other applicable tax). Broadsmart will bill the Customer for such taxes on each invoice, and Customer is responsible for making payment to Broadsmart.  If necessary or required by law, Broadsmart will charge all applicable prospective and retroactive taxes required by the appropriate governmental agency, and Customer is required to make payment of all such taxes to Broadsmart.  Any contest of such taxes does not eliminate or abate the obligation to pay such taxes.  Any calculation errors in assessment and/or tax rate changes requiring adjusted tax computations by Broadsmart will not relieve Customer of its responsibility to remit tax payment(s) fully and timely.  Broadsmart will be responsible for any penalties or interest for any retroactive taxes. In addition to any taxes imposed by the government or regulatory agencies, Broadsmart reserves the right to charge other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (“Regulatory Fees”).  Any imposition, modification or increases in Regulatory Fees by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs shall become effective upon notice to Customer. 

 

  1. Network, Circuit Connection and Equipment. Broadsmart Services require the ability to transmit data through Third-Party networks and carriers, public and private (“Third-Party Networks”). Customer acknowledges that use of or presence of Third-Party networks and carriers may require approval of the owners or operators of such Third-Party Networks and will be subject to any terms and conditions that such Third-Party Networks may establish. Customer understands that Broadsmart does not own or control the Third-Party Networks and agrees that Broadsmart shall not be responsible or liable for the performance or non-performance of the Third-Party Networks, or within interconnection points between the Service and the Third-Party Networks. In addition, Customer understands that any circuit installation charges only include access to the building entry point. Any additional charges required by The Third-Party Networks to connect the circuits from the building entry point to the telecommunications room are the responsibility of the Customer.  The Third-Party Network and circuit connections, as well as the Broadsmart Equipment, are for utilization by Customer only.  The Customer may not sell, lease, license, rent or assign access to Third-Party Networks or any Broadsmart Equipment without the express written consent of Broadsmart. Unless otherwise stated in writing, nothing in this Agreement shall be construed as vesting in the Customer an ownership interest in the Services, including ancillary wires, lines, circuits or any other products or services provided by Broadsmart other than Broadsmart Equipment.

 

  1. Term of the Services. The Services are offered for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Connection Date of the First Location.  Unless otherwise stated in the Order Form, following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term at the New Adjusted MMF (as such term is defined below) in effect at the time of renewal (each, a “Renewal Term”, and collectively with the Initial Term, the “Term”) unless and until either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services.  If, during the Initial Term or any Renewal Term, Customer adds any additional services, the amount of Customer’s MMF set forth on the original Order Form shall increase by the amount of the MRC of such additional Services.  And, the Service Term for any such additional Services shall be coterminous with the Initial Service Term or any Renewal Term then in effect. For the avoidance of doubt, adding new Service Locations will require a new Order Form.

 

  1. Termination of the Agreement. This Agreement and any Services may be terminated by either party effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
    1. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
    2. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 

  1. Early Termination. Customer acknowledges that the pricing of the Services has been established, based and dependent upon the complete fulfillment of the entire Term of the Services. If Customer wishes to terminate the Services under this Agreement prior to the expiration of the then current Service Term and such termination is not due to Broadsmart’s breach, all MRC and NRC on the most current invoice which would otherwise be due through the end of the Term in effect at the time, including all applicable taxes, T-1/dedicated circuits and Equipment charges shall be due and payable within thirty (30) days of the effective date of termination. If at the time of termination, the recurring charges (MRC) are less than the original MMF, the termination charges shall be calculated based on the then current MMF. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.

 

  1. User Guidelines. Customer must, at all times, comply with the User Guidelines attached hereto as Exhibit A (the “User Guidelines”). If Broadsmart becomes aware of Customer’s violation of the User Guidelines or illegal use of the Services, facilities, network or Third-Party networks accessed through the Broadsmart network or Broadsmart otherwise receives notice or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Broadsmart or government authorities. Any government determinations will be binding on Customer upon notice to Customer.  If Customer fails to cooperate with any such investigation or determination or fails to immediately rectify any violation of the User Guidelines or illegal use, Broadsmart may suspend the Service without further liability to Broadsmart. Further, upon notice to Customer, Broadsmart may modify or suspend the Service as necessary to protect its networks, customers or comply with any law or regulation.

 

  1. Unauthorized Calling – Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, such as but not limited to firewalls and passwords. Customer agrees to notify Broadsmart promptly if it becomes aware of any fraudulent or unauthorized use of its account. Broadsmart shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account and the payment of all charges to Customer’s account shall be and remain the sole responsibility of Customer.

 

  1. Abusive or Excessive Use. In addition to comply with the User Guidelines, Customer must not use the Services in a manner constituting abusive or excessive use, which will be determined as follows:
    1. Commercial Use.Customer agrees and represents that Customer is purchasing the Services and/or the equipment for Customer’s internal use only, and Customer shall not resell, transfer or make a change to the Services without the advance express written permission of Broadsmart. Customer shall not in any way interfere with other users, the services or equipment of the network or use the Services in any way for (or as part of) any commercial service or application distributed or sold by Customer. Customer may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Services.
    2. Reasonable Use.Broadsmart’s business service plans and features are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. “Typical” refers to the calling patterns of at least 95% of Broadsmart’s business customers on the same business calling plan. Certain calling and messaging plans, including unlimited calling and messaging plans, are designed for normal commercial use and are not intended to represent typical usage by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services. Unauthorized or excessive use beyond that normally experienced by typical, similarly situated business customers may cause extreme network capacity and congestion issues and interfere with Broadsmart’s network and Third-Party Networks. Any use of the Services or any other action that causes a disruption in the network integrity of Broadsmart services or Third-Party Networks, whether directly or indirectly, is strictly prohibited and may result in termination of the Services.
      1. Evaluation of Usage.Broadsmart evaluates Customer usage in comparison to typical levels of permissible usage engaged in by Broadsmart’s business customers. The following is a non-exhaustive list of impermissible uses under Broadsmart’s business plans and is considered outside of normal use, whether obtained directly from Broadsmart or a Reseller:
        1. Resale to others;
        2. Auto-dialing or fax/voice blasts;
        3. Without live dialog, including use as a monitor or for transcription purposes;
        4. Continuous or extensive call forwarding;
        5. Continuous connectivity;
        6. Constant dialing;
        7. Iterative dialing;
        8. Fax broadcast;
        9. Fax blasting;
        10. Telemarketing;
        11. And any other use involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage.
      2. Review of Unlimited Usage.Broadsmart reserves the right to review usage of unlimited usage plans to ensure that customers are not abusing such plans. Customer agrees to use unlimited voice plans for normal voice and/or text message related communications with aggregate usage that falls within the range of similarly situated business customers. Use of unlimited “paperless facsimile” service must also fall within the normal range of similarly situated business customers and shall in no event exceed 500 transmitted pages sent or received per month. In addition, Customer agrees that Customer will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by Broadsmart. Broadsmart may terminate service immediately if it determines, in its sole discretion, Customer is abusing an unlimited minute plan. Broadsmart deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. Customer agrees that Broadsmart has the right to terminate Customer’s service and/or charge Customer additional fees if Customer’s usage is considered abusive in the sole discretion of Broadsmart.
      3. Excessive Usage.If it is determined that Customer’s usage is abusive, at Broadsmart’s sole option, Customer’s service may be immediately terminated. A Customer’s aggregate usage may be considered outside of normal use if involves excessive:
        1. Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
        2. Number of inbound domestic toll-free calling patterns during a month; or
        3. Other abnormal calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy

Based on such a combination, Broadsmart may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan and may take appropriate steps to enforce this Section 12, as well as the User Guidelines. If, in Broadsmart’s sole discretion, Broadsmart affords Customer the opportunity to correct Customer’s abnormal usage patterns and Customer fails to immediately conform to normal use, Broadsmart may exercise its right to suspend or terminate Customer’s Service with or without notice.

 

  1. Service Levels. Broadsmart will use commercially reasonable efforts to minimize service disruptions and outages.  In the event of service disruptions or outages, Customer’s sole remedy, and Broadsmart sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement attached hereto as Exhibit B (the “Service Level Agreement”).  Broadsmart may update the Service Level Agreement from time to time upon notice to Customer.

 

  1. Disclaimer of Warranties. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “AS IS”, as available basis.  Other than as expressly provided herein, BROADSMART DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.  Broadsmart does not warrant that the Services will meet the Customer’s requirements or that the operation of the Services will be uninterrupted or error-free.  Further, Broadsmart does not warrant that all errors in the Services can be corrected.

 

  1. EMERGENCY 911 SERVICES.BY USING THE SERVICES AND/OR BROADSMART EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF BROADSMART E911 SERVICE AS DESCRIBED IN THE E911 DISCLOSURE, AS WELL AS THOSE SET FORTH IN THIS SECTION 15. CUSTOMER AGREES AND ACKNOWLEDGES THAT WHILE MOST BROADSMART SERVICES OFFER ACCESS TO E911 SERVICE, OTHERS MAY NOT. CUSTOMER IS ADVISED TO THOROUGHLY READ AND UNDERSTAND THE E911 DISCLOSURE AND THE OPTIONS AVAILABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED THE E911 DISCLOSURE AND HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THE E911 DISCLOSURE, AND ASSUMES THE RISKS ASSOCIATED WITH THE BROADSMART E911 SERVICE LIMITATIONS.

 

  1. Third-Party Leasing of Equipment. If Customer leases or otherwise finances it purchase of Broadsmart Equipment from a third-party leasing company, Customer shall be responsible for executing a separate equipment leasing agreement and, unless otherwise specifically provided in the Order Form, shall be responsible for making payment directly to the third-party leasing company.  Broadsmart shall not be responsible for any breach of the third-party lease agreement by the third-party equipment leasing company.  Moreover, a dispute between Customer and the third-party leasing company shall not affect the rights and obligations of, by and between Broadsmart and Customer.

 

  1. Broadsmart will make support available to the Customer via its call center, which will be available to attempt to resolve technical issues with, and answer questions regarding the implementation or use of Services.  Such support shall NOT include, and Broadsmart shall have no obligation hereunder to perform, any of the following: (i) on-site support; (ii) implementation of any software or hardware; (iii) customization of any end user equipment, such as fax machines, etc.; (iv) configuration of any device; (v) dedicated representative support; or (vi) network or third-party equipment support, including any equipment previously owned by the Customer or used in connection with the Broadsmart Services other than the Purchased Equipment.

 

  1. Indemnification.
    1. Broadsmart’s Indemnification of Customer. Broadsmart shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a Third-Party arising from: (i) damage to tangible personal property located at Customer’s premises;  (ii) injury to or the death of any person occurring at Customer’s premises that result from any negligent or willful acts or omissions of Broadsmart or of any agent, employee or contractor of Broadsmart; (iii) Broadsmart’s material breach of this Agreement; or (iv) violation of any applicable law or regulation by Broadsmart.
    2. Customer’s Indemnification of Broadsmart. The Customer agrees to indemnify and hold Broadsmart harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Broadsmart by a Third-Party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Service or Equipment; (ii) Customer’s material breach of this Agreement; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of Broadsmart; (iv) any damages relating to, or arising from Customer’s use of the Services or  Equipment, including the unauthorized use of the Services or Equipment; or (v) violation of any law or regulation by Customer, any Customer end user, or any Customer employee, contractor, or agent.
    3. Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.

 

  1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR LOST REVENUE. UNDER NO CIRCUMSTANCES WILL BROADSMART BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN. BROADSMART’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE BY CUSTOMER TO BROADSMART. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer. However, and notwithstanding the provisions of this Section, the parties agree that neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entry into this Agreement. No action against either party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.

 

  1. Governing Law. The laws of the State of Florida will govern this Agreement, without reference to its principles of conflicts of laws. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA”), and not state arbitration law, shall govern the interpretation, validity and enforceability of the arbitration provision in Section 20

 

  1. Dispute Resolution; Mandatory Binding Arbitration; Waiver of Jury Trial.
    1. Written Notice.In the event either Party has a dispute or claim against the other Party, the disputing Party shall provide written notice to the other Party in accordance with the notice provisions herein.
    2. Initial Escalation to Management.The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
    3. Binding Arbitration.If negotiations fail to resolve the dispute within thirty (30) calendar days, all disputed claims (except for claims set forth in subsection (e) below) must be resolved by binding arbitration before a single arbitrator in accordance with the commercial rules of the American Arbitration Association (“AAA”) (available on the AAA website, adr.org/aaa) in effect as of the date this Agreement goes into effect. Any matter to be settled by arbitration shall be submitted to the American Arbitration Association in Palm Beach County, Florida, and Customer consents to binding arbitration in Palm Beach County, Florida. This agreement to arbitrate is intended to be given the broadest possible meaning under Applicable Laws and shall survive termination of this Agreement. The initiation of an arbitration dispute shall not otherwise prevent Broadsmart or Customer from terminating Services in accordance with this Agreement. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The individual party may recover damages and attorneys’ fees, if authorized by the law governing such Party’s claim, to the same extent the individual party would be entitled to recover in court.
    4. Disputes About This Agreement to Arbitrate.Disputes about the arbitrability of any claims and/or the scope, enforceability, or validity of this arbitration agreement shall be decided by an arbitrator.
    5. Disputes That Need Not Be Arbitrated.Disputed claims involving either Party’s intellectual property rights, indemnity, or confidentiality obligations; fraudulent or unauthorized use, theft, or piracy of service; or matters relating to injunctions or other relief may be resolved by binding arbitration as set forth in subsection (d), but are not required to be resolved by binding arbitration and may be heard in a court of law, at the option of the entity asserting the disputed claim.
    6. Costs. Each Party will be responsible for its own costs incurred in the arbitration, including arbitration filing fees and attorneys’ or expert witness fees. The arbitrator’s costs and expenses shall be shared equally between the Parties. If a Party elects to appeal an award or seeks to vacate the award in court, the prevailing Party in the appeal or judicial proceeding shall be entitled to recover all reasonable attorneys’ fees incurred in that appeal or judicial proceeding.
    7. Waiver of Jury Trial.Customer and Broadsmart agree that, by entering into this agreement, Customer and Broadsmart are waiving the right to a trial by jury. Customer and Broadsmart agree that the arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER AND BROADSMART AGREE THAT CUSTOMER MAY BRING CLAIMS AGAINST BROADSMART ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT.  Customer and Broadsmart agree that the arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding.
    8. Severability. If any term, covenant, or condition contained in this dispute resolution/arbitration provision, is, to any extent, held invalid or unenforceable in any respect under the laws governing this dispute resolution/arbitration provision, the remainder of this dispute resolution/arbitration provision shall be valid and enforceable to the fullest extent permitted by law.

 

  1. Notices. Notices regarding the following may be posted on Broadsmart website: (i) modifications, impositions or increases to regulations and Fees; (ii) new or modified documentation, including but not limited to Broadsmart’s internal documents and policies; (iii) changes to rates, other than those affecting Customer under this Agreement; and (iv) new Services and information. The changes will become effective and will be deemed accepted by Customer, (a) immediately for those Customers who purchase the Services after the updated version is published on Broadsmart’s website, or (b) for those having pre-existing accounts, the updated terms will be deemed effective with Customer’s continued use of the Service.  Notices regarding: (a) material changes to this Agreement; (b) internal or external changes materially impacting Broadsmart’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either Party at the addresses given above in the heading to this Agreement or to such other address as a Party may, from time to time, designate by notice to the other Party.

 

  1. Amendments to the Agreement. Other than as stated above, this Agreement may only be modified by a written instrument signed by both parties acknowledging that it is an amendment to this Agreement.

 

  1. Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Broadsmart’s reasonable control, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.

 

  1. Assignment. Customer may not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of Broadsmart, except to a party that acquires all or substantially all of Customer’s assets as part of a corporate merger or acquisition provided the assignee agrees to the be bound by the terms of this Agreement. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

 

  1. Non-Solicitation. During the Service Term, neither party shall employ, offer employment to or solicit the employment of any individual employee or independent contractor employed or engaged by the other party.  Nothing herein shall prohibit or prevent either party from soliciting employees, or former employees of the other party by general solicitations, such as advertising or websites, not specifically targeted at specific employees of the other party.

 

  1.  No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing waiver.

 

  1. Entire Agreement. Broadsmart and Customer hereby agree and stipulate that this Agreement, as incorporated into one or more Order Forms, and its attachments and/or addendums, represent the entire agreement between the parties hereto, and it supersedes all prior written and/or oral communications that are applicable to Broadsmart’s provision of Broadsmart Equipment and/or Services. If the terms of this Agreement and the Order Form contradict, the Order Form shall supersede and control.

 

  1. Severability. In the event any court of competent jurisdiction determines that any of the terms and conditions of this Agreement are unenforceable or invalid, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby and full force and effect shall be given to such remaining provisions. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written, or any public comments made by Broadsmart with respect to future Services, functionalities or features.

 

 

Exhibit A

User Guidelines

Prohibited Use of the Services.

Neither You nor any User of Your Services may use or allow use of Your Services in any of the following ways:

  • in any manner or for any purpose that is fraudulent, malicious, deceptive, dishonest, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, or in violation of any Law;
  • to intentionally send or transmit unsolicited or “junk” or “spam” advertisements, communications, or messages (commercial or otherwise) without consent, including without limitation through email, voicemail, SMS, facsimile, or internet facsimile;
  • to harvest or otherwise collect information about others, including without limitation email addresses or personally-identifiable information, without their consent;
  • to intentionally engage in blasting or broadcasting bulk communications, advertisements, or messages (e.g., sending hundreds of messages simultaneously), including without limitation through email, voicemail, SMS, facsimile, or internet facsimile;
  • to perform auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls) in violation of applicable law;
  • to transmit any communication that would violate any applicable law, including but not limited to the Telephone Consumer Protection Act, the Junk Fax Prevention Act of 2005, or the rules governing the DoNotCall Registry Rules;
  • to intentionally transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous;
  • to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value, including by creating a false Caller ID identity or forged email/SMS address or header or by otherwise attempting to mislead others as to the identity of the sender or the origin of any outbound customer communication;
  • to infringe, misappropriate, or otherwise violate the foreign or domestic IP Right or proprietary right of any party, including without limitation by transmitting or storing any material that might infringe, misappropriate, or otherwise violate any such right;
  • to violate the right of privacy, personality, or publicity of any party, including without limitation by transmitting or storing any material that might violate any such right;
  • to violate any law regarding the transmission of technical data or information or software through the Services;
  • in any manner that interferes with Broadsmart’s ability to provide high quality products or services to other customers;

Prohibited Acts.

You represent, warrant, covenant, and agree that neither You nor any End User shall do any of the following during the Term:

  • transmit, upload, distribute in any way, or store any corrupted file or material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous or may damage the operation of the Services or another party’s computers, devices, equipment, systems, or networks;
  • interfere with or disrupt networks or systems connected to the Services;
  • sell; resell; distribute; lease; export; import; or otherwise grant or purport to grant rights to third parties with respect to the Services, and any software or hardware used in conjunction with the Services or any part thereof without Broadsmart’s prior written consent;
  • display or use of any Broadsmart mark in any manner in violation of Broadsmart’s then-current policies on its trademark and logo usage or without Broadsmart’s express, prior written permission, to be granted or denied in Broadsmart’s sole discretion,
  • display or use of any third-party mark without the prior, written consent of the Third-Party that owns the third-party mark;
  • undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or any software and hardware used in conjunction with the Services, or part thereof;
  • defeat, disable, or circumvent any protection mechanism related to the Services;
  • intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data used by Broadsmart for any purpose, including without limitation by causing the any product to connect to any computer server or other device not authorized by Broadsmart or in any manner not authorized in advance in writing by Broadsmart;
  • allow any service provider or other Third-Party – with the sole exception of Broadsmart’s authorized maintenance providers acting with Broadsmart’s express, prior authorization – to use or execute any software commands that facilitate the maintenance or repair of any software or hardware used in conjunction with the Services;
  • gain access to or use (or attempt to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining);
  • engage in or to allow trunking or forwarding of Your Broadsmart telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system; or
  • violate or take any action to jeopardize, limit, or interfere with Broadsmart’s IP Rights, including without limitation their IP Rights in the software and hardware used in conjunction with the Services.

Recording Conversations or Calls

Certain features of the Services may allow You or users of the Services to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications may vary from state to state, and country to country. You should consult with an attorney prior to recording any call as some states or countries may require callers or users to obtain the prior consent of all parties to a recorded call, or other communication before the caller or User may record the call, or other communication. You represent, covenant, and warrant that You will review all applicable Laws before You use or allow use of the Services to record any calls or other communications and will at all times comply with all applicable laws. You agree to inform all your users that they are obligated to comply with all Laws relating to their use of the call recording feature.

 

 

Exhibit B

Broadsmart Hosted PBX and SIP Trunking

Service Level Agreement

 

Summary

Broadsmart offers a full suite of Service Level Benchmarks for Voice over IP based services including the Hosted

PPX & SIP Trunk Session Saver Service. Based on the Customer location(s) and requirements, Broadsmart may deliver Hosted PPX & SIP Trunk Services via certified Partner layer 2 Network to Network Interface (NNI). This Service Level Agreement (“SLA”) includes Hosted PPX & SIP Trunk Session Saver Service and assumes Broadsmart is connected to a layer 2 Partner NNI or the Customer has contracted a 3rd party broadband access vendor to deliver Broadsmart voice services to the Customer premises.

  1. Voice Availability SLA

Description: Broadsmart’s SLA for voice availability is measured in minutes of downtime which exists when the SIP Trunk Session Saver Service is unable to transmit inbound and/or outbound calls between Broadsmart’s platform and the Customer SIP User Agent, “SIP UA”. The Voice Availability SLA does not apply to call quality or call failure due to Partner network(s), failure of Customer supplied Third-Party network(s) or Customer Premise Equipment (CPE) including network element(s) and telephone system.  Subject to the foregoing limitations, each time the Voice Availability is less than Broadsmart’s 100% availability objective, Customer qualifies for a credit as shown below, prorated from the SIP Session MRC of the Affected Service on a per-location, per-trunk  group basis.

Measurement: The Voice Availability SLA measurement includes voice application platform and network elements between Broadsmart and/or its Partner’s Provider Edge (PE) router and excludes Partner PE router(s), any physical transport or physical cross-connect(s) managed and maintained by Partner and any erroneous static or dynamic packet network routes announced or withdrawn towards Broadsmart or the Customer. PSTN call termination to specific destinations at the domestic exchange or international country code level is excluded whenever successful re-routes can be performed within 4 hours.

Voice Availability & Remedy:

Voice Platform Downtime Amount of Monthly Bill Credit
15-30 minutes 1 day credit
31-60 minutes 2 day credit
61-120 minutes 4 day credit
121-240 minutes 6 day credit
Over 241 minutes 8 day credit

 

  1. Packet Latency SLA 

Description: Broadsmart’s Latency SLA is measured as the roundtrip response time from Broadsmart Network Operations Center (NOC) to the Partner Provider Edge (PE) across the Broadsmart’s managed network infrastructure.

Measurement: The Latency SLA measurement includes all elements between the Voice Session Border Element (or Broadsmart NOC, as appropriate) and the Broadsmart Partner Provider Edge (PE) CPE/router. The Latency measurement is the average roundtrip response time of a 32 byte ICMP PING packet to complete a roundtrip traversal from the Management Router (or the Broadsmart NOC, as appropriate) the WAN interface of the Partner PE router and thus includes the serialization delay of the WAN interface of the Customer’s CPE. Periods of time when circuit utilization is greater than 80% of its stated capacity, as measured using 95th percentile sampling will be excluded from the Latency SLA measurement.

Remedy: If Broadsmart determines that the Latency SLA was not met and also cannot remedy the problem within 3 calendar days from the date that Latency is reported in the associated trouble ticket the following schedule will apply:

Average Latency over 30 second interval Credit per affected Customer Location
≤ 120 ms No credit
≤ 20ms over  120 ms 5% of Location(s) SIP trunk group MRC
> 20ms and <40ms over 120 ms 10% of Locations(s) SIP trunk group MRC
≥ 40ms over  120 ms 15% of Location(s) SIP trunk group MRC

 

  1. Mean Time to Respond SLA

Description: Broadsmart’s Mean Time to respond is measured as the average time it takes Broadsmart to respond to all service inquiries related to one or more outage or impairment events during a calendar month.

Measurement: Mean time to respond is the period of time beginning when a service outage or impairment event is reported by the Customer or Customer Authorized Agent and ending when acknowledgement of such event is received to the Customer or Customer Authorized Agent as sent by the Broadsmart Technical Support Department. Such communication to/from the Customer to/from the Broadsmart Technical Support Department shall be transmitted by telephone, Email or the Broadsmart Online Support Portal (OSP).

Average Response Time Credit per Affected Location
< 15 minutes No Credit
≥ 15 minutes 2 day credit

 

  1. Mean Time to Restore SLA

Description: Broadsmart’s Mean Time to restore is measured as the average time it takes to restore all outages for all Customer sites with similar service type during a calendar month.

Measurement: Mean Time to restore is the period of time beginning when an outage-related trouble ticket is opened by either Broadsmart or the customer and ending when the service is restored. An outage-related trouble ticket indicates that the service is unavailable to transport voice over IP packets or process inbound or outbound telephone calls as described above in the Voice Availability SLA. The Mean Time to restore takes effect on the 1st  calendar day of the first full month after the connection is successfully installed and activated.

Average Availability Credit per Affected Location
< 4 hours No Credit
≥ 4 hours 3 day credit

 

  1. Service Related Change Requests

 Description: Broadsmart commits to completing changes to services as requested by the Customer or Customer Authorized Agent as follows.

Change Type Change Commit Time
Add/Remove Fixed Call Forwarding (RCF) 1 business hour
Addition of VoIP Line/Port 4 business hours
Enable/Disable Standard Features (Call Waiting, etc) 4 business hours
Series Completion/Hunt Sequence Add or Change 4 business hours
Calling Name/Caller ID Change 1 business day
TN Directory Listing Change 2 business days
Increase SIP Session Bundle Tier 4 business days

 

GENERAL TERMS AND CONDITIONS

The following terms and conditions apply to Broadsmart SLA:

  1. Customer accounts must be current and in good standing, otherwise no SLA credits will be issued. This SLA only applies to Hosted PBX & SIP Trunk Services delivered to Customer’s in the contiguous United States and in which the Customer location(s) is/are using broadband access from a Broadsmart Certified Partner Provider.
  2. Maintenance
    1. Standard Maintenance. “Standard Maintenance” refers to upgrade of hardware or software or upgrades to increase call capacity. Standard Maintenance may temporarily degrade the quality of service, including possible outages.  Such effects related to Standard Maintenance will not give rise to service credits under this SLA. When needed, Standard Maintenance will be undertaken between the hours of 12:30 AM and 6:00 AM EST.
    2. Non-Standard Maintenance. “Non-Standard Maintenance” refers to efforts to correct platform or network conditions that are likely to cause a material service outage and that require immediate action. Non-Standard Maintenance may degrade the quality of service, including possible outages. Such effects related to Non-Standard Maintenance shall entitle Customer to service credits as set forth in this SLA. Broadsmart may undertake Non-Standard Maintenance at any time deemed necessary and will provide notice of such maintenance to Customer point of contact as soon as commercially practicable under the circumstances.
  3. Broadsmart will only use trouble ticket history to validate SLA claims. A valid trouble ticket reporting the problem must exist in Broadsmart’s trouble ticket system prior to making the claim. Customer must claim all SLA credits by submitting a request to Broadsmart for each separate incident via Broadsmart Technical Assistance Center at tac@broadsmart.com. Customer will need to reference a valid Broadsmart incident trouble ticket in email Subject.
  4. Claims for SLA credits occurring within a particular month or for an incident remedied in a particular month must be submitted on or after the first calendar day of the following month but prior to the 15th calendar day of that same month. SLA claims submitted after the 15th on the month following the remedy of the incident will not be accepted under any circumstances.
  5. If Broadsmart requires additional information in order to verify a claim, it may request such information from Customer within the 30-day period of Customer’s initial submission of the claim. If Customer fails to resubmit claim within 15 days of Broadsmart’s requesting such additional information Broadsmart will automatically void the claim.
  6. Broadsmart will verify each SLA credit within 30 days of the receipt of such fully completed claim, and accept and reject such claims as per the SLA criteria. If Broadsmart determines that a particular SLA was not met, a credit or other remedy will be applied during the subsequent billing cycle based on the applicable SLA remedy.
  7. Broadsmart will be relieved of its obligations pertaining to the outage notification SLA if the Customer contact information in the customer support procedures document is out of date or inaccurate due to the Customer’s action or omission, or if the Customer does not abide by the procedures agreed upon in the Customer implementation plan and the customer support procedures document.
  8. No credits shall be issued for SLA violations caused by or attributed to problems associated with non- Broadsmart provided broadband access, Customer Local Area Network(s), Customer provided equipment including network hardware and premise telephone system(s) or inside wiring. No credits will be granted to the Customer for any SLA violations that are or indirectly caused by acts or omissions by (a) the Customer or Customer Authorized Representative, (b) any Third-Party per person that is not a provider of services to Broadsmart, (c) router or firewall configuration changes requested by the Customer or in response to security threats, breaches, or attacks or (d) a Force Majeure event.
  9. Time associated with Broadsmart scheduled outages and maintenance, emergency maintenance and Customer caused outages or support delays are excluded from Availability and Chronic Outage SLA calculations. Latency SLA commitments do not apply during Broadsmart scheduled maintenance and emergency maintenance time periods.
  10. No unavailability credits will be granted for any Broadsmart service where Broadsmart delivers or offers to deliver a work-around solution that maintains or establishes continuity for any level of Broadband and/or voice services.
  11. No credits will be granted due to unavailability of any Broadsmart service due to Acts of God or during State of Emergency periods.
  12. These SLAs require that a Customer representative be available at the location in question and willing to provide assistance in performing diagnostic testing to verify and resolve problems should they exist.
  13. The Customer must initiate requests for credits as specified herein. Claims can only be made by, and credits issued to, the Customer. All claims for credits are subject to Broadsmart review and verification. Broadsmart’s determination as to whether a SLA has or has not been met shall be final. Credits are exclusive of any applicable taxes charged to the Customer or collected by Broadsmart. Credits provided by Broadsmart shall not be cumulative or consist of multiple SLA credits for any single failure, or in any case be greater than 100% of the MRC for an affected circuit or service within any given month. Credits may   not be carried over into subsequent months and apply only to the month on which they are issued, regardless of balance owed.
  14. Broadsmart is not responsible for quality of service or performance quality issues where unmanaged connections are in use. All service level agreements are void if Broadsmart determines that SLAs were not met as a result of unmanaged connections.
  15. Broadsmart reserves the right to modify the claim process and information required at any time without notice to Customer. Broadsmart, without notice and at its sole discretion, may limit or eliminate Customer’s eligibility to receive SLA credits if Customer has submitted an excessive number of rejected SLA claims or attempted to use the SLA credit process in a frivolous or fraudulent manner, or Customer is in violation of the acceptable use policy covering the affected circuit.
  16. Customer Premise Equipment (CPE) is not included in the SLA measurements unless otherwise noted, and then only if the Customer has purchased or leased equipment through a valid Broadsmart services agreement.

 

 

Exhibit C

E911 DISCLOSURE NOTICE

 

THIS BROADSMART E911 DISCLOSURE NOTICE (this “E911 Notice”) is agreed, acknowledged and accepted by Customer as a user of Broadsmart’s services and any associated software and hardware (the “Services”), pursuant to the Broadsmart Services and Equipment Terms to which this Exhibit C is attached (the “Agreement”). Any capitalized terms not otherwise defined in this E911 Notice shall have the meanings ascribed to such terms in the Agreement. In the event of any conflict between this E911 Notice and the Agreement, this E911 Notice shall control. 

Customer acknowledges and understands that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs and to make necessary provisions for access to emergency calling services (such as maintaining a conventional landline phone or wireless phone as a backup means of completing emergency calls).

  1. Emergency Services – 911 Calling
    1. Non-Availability of Traditional 911 or E911 Calling Service.Broadsmart E911 Service (the “E911 Service”) is a mandatory component of the Services and is only available in certain areas.  Most Customers have access to either Basic 911 Service or Enhanced 911 Service, as defined in Subsection 1.b.1. The E911 Service enables Customers to communicate with emergency services by dialing 911. However, the E911 Service is different in important ways from traditional landline 911 and cellular/wireless 911, depending upon where Customer is located and the device used with the Services. Customer agrees to notify any user or potential user of the Services who may place calls using Customer’s Services of the 911 limitations described herein. Customer agrees to place a label on and/or near each telephone or other Customer Equipment on which the Services may be utilized regarding the limitations or unavailability of 911 emergency dialing.
    2. Description of Emergency Dialing Capabilities.
      1. How it Works. When a Customer dials 911 from a device connected to or used with the Services (a “Broadsmart device”), the Broadsmart phone number and the registered address Customer has provided to Broadsmart is sent to the local emergency center serving the location of your registered address to enable emergency operators to send help and to call the Customer back, if necessary (“Enhanced 911 Service”). In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to see Your Broadsmart telephone number or your registered address. Customers in locations in which the emergency center is not equipped to receive the Customer’s telephone number and/or address have what is called “Basic 911 Service”. Customer should always be prepared to provide the emergency operator with Customer’s telephone number and location. Until the Customer gives the requisite call back and location information to the emergency operator, the emergency operator may not be able to dispatch help or return the Customer’s call. This is especially the case if the call is not completed or forwarded, is dropped or disconnected, or if the Customer is unable to speak. As local emergency centers become capable of receiving Customer’s address and call back information, Broadsmart will automatically upgrade customers with Basic 911 service to Enhanced 911 Service. Broadsmart will not provide notice of the upgrade. Broadsmart does not control whether or not the emergency operator receives Customer’s telephone number and address.
      2. No Access to Enhanced or Basic 911 Service. Certain Customers do not have access to either Enhanced 911 Service or Basic 911 Service. If Customer does not have access to Enhanced 911 Service or Basic 911 Service, the Customer’s emergency call will be sent to a national emergency call center. In such case, an agent at the emergency call center will ask the Customer for his/her name, telephone number and location and will then contact the local emergency center for such location in order to send help. Examples of situations where 911 calls will be sent to the national emergency call center include when there is a problem validating a Customer’s address, the Customer is identified with an international location (see section 2(b)), or the Customer is located in an area that is not covered by the 911 network. Until Customer gives the agent Customer’s telephone number and location, he/she may not be able to call Customer back or dispatch help to Customer’s location if the call is dropped or disconnected.
      3. Desktop or Softphone App 911 Calls. EMERGENCY CALLS CANNOT BE PLACED THROUGH SOFTPHONES THAT ARE NOT 911-ENABLED. If Customer uses a Desktop or Softphone app, 911 calls will be routed to the local emergency center serving the 911 location that is associated with the Desktop or Softphone app. Therefore, if Customer is using the Desktop or Softphone app in a nomadic manner (e.g., from a hotel, from a home office, etc.), the Customer must update the 911 location on an ongoing basis to ensure that 911 calls will be sent to the appropriate local emergency center that serves the then current Customer location.
      4. E911 Service Fees. Customers are required to subscribe to the E911 Service and will be subject to monthly, government-imposed fees (the “E911 Service Fees”), which are in addition to any applicable state 911 tax based on Customer’s service address and in addition to the applicable Service Fees for the associated line(s). If the E911 Service Fees are not paid, the emergency communications district in Customer’s jurisdiction may seek to collect such amounts from Customer directly. Broadsmart does not profit from Customer’s E911 Service and the E911 Service Fees collected are turned over to the appropriate government authority pursuant to their requirements. Broadsmart reserves the right to adjust the E911 Service Fees associated with the provision of the E911 Service to reflect increases or decreases in the costs it incurs in providing the E911 Service.
  1. Registered Location.
    1. Registered Location Required.Upon creation of the Customer account, Broadsmart initially assigns all extensions and Broadsmart devices to the physical street address on file for the Customer. Prior to activation of the Services, Customer shall: (i) register with Broadsmart all additional 911 locations where the Services are to be used, as necessary; and (ii) assign each Broadsmart device to one of the registered 911 locations. In some cases, one extension may have multiple Broadsmart devices, and each such Broadsmart device needs to be assigned a 911 location. Customer may register multiple 911 locations per account and assign all active extensions and Broadsmart devices to such 911 locations. Individual end users may assign and re-assign their current location(s) on an as-needed basis. Customer agrees to ensure that the physical location(s) provided to Broadsmart are correct, and to immediately update such location(s) whenever the physical location(s) of the Broadsmart devices change. If a Broadsmart device will be used in a different or new location, Customer must create and/or register the location for the Broadsmart device. If Customer does not register the new location, any 911 call made from the Broadsmart device may be sent to an emergency center near the prior, registered location. In most cases, the registration process occurs in real-time. In some cases, the registration will be referred to a 911 provider for validation, which could take days. Customer (i) acknowledges and understands that any location information passed to emergency personnel by Broadsmart will be based upon the physical location information provided by the Customer, and (ii) agrees to promptly assist Broadsmart in validating a 911 location address that has been rejected by the 911 provider. Customer will receive a confirmation email when the 911 location has been validated for: (i) the initial registered location; and (ii) for any subsequent locations submitted by Customer.
    2. Use of Service Outside United States or Canada.Customer acknowledges that if a user of the Services calls 911 from outside the United States or Canada, the user may be instructed to hang up and call their local service provider. Customer shall notify all users (i.e., business colleagues, employees, guests and other persons who may be present at the physical location where Customer uses the Services) that 911 may not be available outside the United States and Canada and that 911 service may be limited in comparison to traditional 911 service. For clarity, 911 service is available only in the 50 United States, the District of Columbia, and Canada, and is not provided in any US territory or in other international locations.
    3. Failure to Designate and Identify the Correct Physical Address. Customer’s failure to provide and keep current Customer’s correct physical location(s) may 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 Broadsmart by Customer) being routed to the incorrect local emergency service provider. Most post office box addresses are not eligible as a validated 911 location. Customer’s physical location(s) may NOT be a mail drop or similar address. Customer acknowledges that Broadsmart’s only mechanism for routing 911 calls to the correct emergency call taker is the physical location currently registered for Customer’s account. Customer acknowledges and understands that any enhanced location information passed to an emergency operator by Broadsmart will be based upon the physical location provided to Broadsmart by Customer. In the event the physical location has not been updated or is not complete, Broadsmart may attempt to route a 911 call based upon the bill to or ship to address associated with Customer’s account or initial order.
    4. Mobile Applications. Any Broadsmart mobile application (each a “Mobile App”), if applicable, is not a replacement for your cellular service. However, this does not prevent you using your mobile phone for making emergency calls via your cellular provider as normal. YOU SHOULD NOT USE YOUR MOBILE APP FOR DIALING 911 UNLESS YOU ARE LOCATED AT THE PHYSICAL ADDRESS THAT YOU HAVE REGISTERED FOR THE PHONE NUMBER ASSOCIATED WITH YOUR MOBILE APP. IF YOU DIAL OR TEXT 911 WHEN USING YOUR MOBILE APP, YOUR CALL WILL BE ROUTED TO THE EMERGENCY CALL TAKER ASSOCIATED WITH THE PHYSICAL LOCATION YOU HAVE REGISTERED FOR THE PHONE NUMBER ASSOCIATED WITH THE APP. TO ENSURE PROPER CALL ROUTING, WHEN MAKING 911 CALLS WITH YOUR MOBILE DEVICE, YOU SHOULD MAKE SUCH CALLS USING YOUR CELLULAR CONNECTION AND NETWORK THROUGH YOUR CELLULAR PROVIDER. 
  1. Service Outage
    1. Power Failure or Disruption.Emergency dialing will not function in the event of a broadband, power or ISP Service failure or disruption. If there is an interruption in the power supply, a power surge or a power failure, the Services and emergency dialing will 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 Services or being able to make emergency 911 calls.
    2. Service Suspension or Termination by Broadsmart.A Services outage or suspension (including, without limitation, suspension of Services due to billing issues or delinquent or unpaid invoices) or termination of Services by Broadsmart will prevent ALL calls from being made through the Services, including the ability to make emergency 911 calls.
    3. Other Service Outages.If there is a Services outage for ANY reason, such outage will prevent ALL calls from being made through the Services, including the ability to make emergency 911 calls. Such outage may occur for a variety of reasons, including, without limitation, those reasons described elsewhere in this E911 Notice or the Agreement.
  1. Automated Number Identification.Due to limitations at public-safety answering points (“PSAP(s)”), it may not be possible for the PSAP and the local emergency personnel to identify Customer’s telephone number (or the number assigned by Broadsmart) when Customer dials 911 via the Services. 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 Services is not operational for any reason including, without limitation, the reasons and situations listed elsewhere in this E911 Notice or the Agreement.
  1. Automated Location Identification.Due to limitations at PSAPs, it may not be possible to transmit identification of the Customer 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 Services are not operational for any reason including, without limitation, those reasons and situations listed elsewhere in this E911 Notice or the Agreement.
  1. Indemnification. Customer shall protect, defend, indemnify, and hold harmless Broadsmart and its officers, directors, employees, affiliates, contractors and agents and any other service provider that furnishes services to Customer in connection with the Services, from and against any and all claims, lawsuits, losses, damages, liability, fines, penalties, costs and expenses, including, without limitation, attorneys’ fees and costs, arising from or related to any absence, failure or outage of the Services, including, without limitation, emergency 911 calling and/or inability of Customer or any Customer employee, third person or party, or user of the Services, to be able to call 911 or to access emergency service personnel.
  1. Disclaimers; Limitation of Liability. BROADSMART SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED WITH ANY FAILURE OF THE SERVICES, OR LACK OF AVAILABILITY TO REACH 911 SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT BROADSMART’S WILL HAVE NO LIABILITY WHATSOEVER FOR ANY SERVICES OUTAGE OR INABILITY TO COMPLETE EMERGENCY 911 CALLS FROM ANY BROADSMART DEVICE, CUSTOMER LINE OR CUSTOMER PREMISES OR TO ACCESS EMERGENCY SERVICE PERSONNEL, OR IN THE EVENT THAT CUSTOMER OR ANY OTHER CALLER FROM CUSTOMER’S EQUIPMENT IS UNABLE TO PLACE, OR COMPLETE, A CALL TO 911 OR E911 SERVICES, OR IN THE EVENT THAT EMERGENCY RESPONDERS DO NOT RESPOND, OR DO NOT RESPOND TO THE LOCATION AT WHICH THE EQUIPMENT, CUSTOMER, OR CALLER IS PHYSICALLY PRESENT OR REQUIRE SUCH SERVICES. IN NO EVENT SHALL BROADSMART BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES RELATED TO CUSTOMER’S (OR ANY CUSTOMER EMPLOYEE, AGENT, OR CONTRACTOR, OR THIRD PERSON OR THIRD PARTY OR USER OF THY SERVICES) USE OF OR INABILITY TO USE E911 SERVICE. UNDER NO CIRCUMSTANCES WHATSOEVER WILL BROADSMART HAVE ANY LIABILITY ASSOCIATED WITH 911 OR E911 SERVICES, INCLUDING, AND WITHOUT LIMITATION, IN THE EVENT OF: A) LOSS OF ELECTRICAL POWER; B) LOSS OF INTERNET CONNECTIVITY; C) DEFECTIVE OR MISCONFIGURED EQUIPMENT; D) NETWORK CONGESTION; E) DELAYS ASSOCIATED WITH UPDATING REGISTERED SERVICE LOCATION; F) RESTRICTIONS CREATED BY NONVOICE EQUIPMENT; G) RELOCATED EQUIPMENT, INCLUDING OUTSIDE OF THE UNITED STATES OR CANADA; H) THE SIMULTANEOUS USE OF ONE LINE WITH MULTIPLE PIECES OF EQUIPMENT; I) FAILURE OF EMERGENCY RESPONSE CENTERS TO ANSWER A 911 CALL; J) FAILURES OF ANY THIRD PARTIES THAT ARE RESPONSIBLE FOR ROUTING 911 CALLS; K) THE USE OF NONNATIVE TELEPHONE NUMBERS; or L) ANY FORCE MAJEURE EVENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF BROADSMART’S LIABILITY IS A MATERIAL TERM TO THE AGREEMENT, AND THAT IT WOULD NOT OTHERWISE ENTER INTO THE AGREEMENT WITHOUT THIS LIMITATION, AND THAT CUSTOMER AGREES THAT THESE LIMITATIONS ARE REASONABLE./