BROADSMART SERVICES AND EQUIPMENT TERMS
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, INC., ITS AFFILIATES AND SUBSIDIARIES (“BROADSMART”) EFFECTIVE AS OF THE LAST DATE OF EXECUTION OF THE ORDER FORM. CUSTOMER IS ADVISED TO READ SECTION 15 CAREFULLY BEFORE USING THE SERVICE. THIS SECTION EXPLAINS THE OPERATION AND LIMITATIONS OF VOIP E911 EMERGENCY CALLS.
- Definitions – Broadsmart shall provide Customer the voice and advanced communications services, collaboration services, and any associated software and hardware or web-accessible portals detailed in the Order Form (the “Services”) in accordance with the terms of this Agreement.
- “Connection Date” shall be defined as the date in which the Services and the Equipment are available for use. In the event the Customer delays the ability of Broadsmart to provide the Telecommunication Services called for by this Agreement, the Connection Date shall be deemed to be the date on which Broadsmart was able and ready to deliver the Telecommunication Equipment and Telecommunication Services.
- “Customer Equipment” shall mean all equipment and facilities necessary for the installation of the Telecommunication Equipment and Telecommunication Services at the Service Location(s) to be provided by Broadsmart pursuant to the Service Section below, exclusive of any 3rd party leased equipment. The Customer is responsible for ensuring that all other equipment and facilities are available for the installation and connection of such Telecommunication Equipment and Telecommunications Services. 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 Telecommunications and Telecommunications Services can be installed. Broadsmart will make reasonable efforts to advise Customer of what, if any, Customer Equipment may be necessary for the provision of Telecommunications Equipment and Telecommunications Services.
- “Equipment” or “Telecommunication Equipment” shall be defined as all physical equipment called for in the Order Form, inclusive of 3rd party leased equipment.
- “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”).
- “MMF” shall mean the Services minimum monthly fee committed by Customer in the first Order Form. The MMF may increase from time to time as Customer orders more Services but may never decrease by more than 30% without prior written consent of Broadsmart or pricing may be adjusted.
- “MRC” shall mean the monthly recurring charges.
- “NRC” shall mean non-recurring charges, which may include but it’s not limited to installation charges, 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 such Telecommunication Equipment and/or Telecommunication Services requested by Customer.
- Initial Payment – The initial payment, unless otherwise agreed in writing, shall equal all NRC, and is due within five (5) business days of Effective Date (the “Initial Payment”). Should Customer choose to add the NRC to a lease agreement, Customer agrees to execute lease agreement within fifteen (15) days of the Effective Date of this Agreement. Customer understands that Broadsmart shall begin to requisition all Telecommunication Equipment and begin to facilitate the provision of Telecommunication Services immediately after. Therefore, Customer understands that the Initial Payment shall be non-refundable, unless Broadsmart is unable or unwilling to provide the Telecommunication Equipment and/or Telecommunication Services called for in this Agreement.
- 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 fifth day of month) and NRC are invoiced in arrears unless otherwise indicated in the Order Form. Payment shall be due “Net 30 days.” This means that payment is due within thirty (30) days of the billing 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.
- Failure to Make Payment – Broadsmart will make reasonable efforts to notify customer of late payment status prior to any service interruption. 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 Telecommunication 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 fee. 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.
- Taxes and Regulatory Fees – As applicable and as required by stated, 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 as necessary (potentially to a retroactive tax basis period) to accurately and properly collect taxes does 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 prior notice to Customer.
- 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, the Third Party Network and circuit connections, as well as the Equipment provided by Broadsmart is for utilization by Customer only. The Customer may not sell, lease, license, rent or assign the connection or any part of the connection and Equipment in this Agreement without the expressed written consent of Broadsmart. This shall include the prohibition of pledging such equipment in connection with any lease, lien, loan, UCC filing or any other thing requiring collateral. Unless otherwise stated in writing, nothing in this Agreement shall be construed as vesting in the Customer an ownership interest in the Equipment and/or Services, including ancillary wires, lines, circuits or any other products or services provided by Broadsmart.
- 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. Following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term at the New Adjusted Service Fee (as such term is defined below) in effect at the time of renewal (each, a “Renewal 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 or locations, the amount of Customer’s MMF set forth on the original Order Form shall increase the sum set forth in the Order Form for the First Location (the “New Adjusted MMF”). And, the Service Term for any such additional Services shall be coterminous with the Initial Service Term or any Renewal Term in effect at the time.
- Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- 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 current Service Term and such termination is not due to Broadsmart’s breach, all MRC on the most current invoice which would otherwise be due through the end of the Service 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 MMF in effect on the original Order Form or the latest renewal term, whichever is higher. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
- User Guidelines – Customer must, at all times, comply with the User Guidelines attached hereto as Exhibit A. 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.
- 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.
- Abuse Calling. The Services are designed to handle large enterprise volume of calls. Notwithstanding, Broadsmart discourages abuse and massive calling. Broadsmart has implemented and enforces practices against massive calling, such as autodialing, as well as toll fraud, since these and other similar practices may adversely impact Broadsmart’s ability to deliver the Service.
- 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. Broadsmart may update the Service Level Agreement from time to time upon notice to Customer.
- 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.
- E911 Service. By use of the Service, Customer acknowledges the limitations of E911 service as described in the E911 Policy attached hereto as Exhibit C. Customer agrees and acknowledges that while some individual Services offer access to E911 service, others may not. Customer is advised to thoroughly understand the Services and the options available. By accepting this Agreement, Customer acknowledges that it has received the information regarding the limitations of E911 services, understands them, and assumes the risks associated with the E911 limitations. Broadsmart may disclose to the FCC that Customer has acknowledged the E911 Disclosure by virtue of Customer having accepted this Agreement. Broadsmart may update the E911 Policy from time to time upon notice to Customer.
- Equipment. In the event Customer uses and/or leases (installment sale) Equipment(s) from Broadsmart, the following provisions will apply:
- Title – All Customer Equipment not otherwise purchased by Customer shall be titled to Broadsmart at all times and for all purposes, and marked and identified as the property of Broadsmart, which markings and identification shall not be removed or altered by Customer. Broadsmart reserves the right to file UCC-1 statements with appropriate State agency naming Broadsmart as lien holder until such equipment is returned or paid off respectively. Except for the preceding, Customer will not cause, create, or suffer any claims, including but not limited to, any liens, charges, encumbrances, or security interests in, on, or to such equipment and will indemnify and hold Broadsmart harmless from and against any loss, expense, or liability from such actions and from any and all improper use of equipment and services that causes a superior claim to be made or filed against such equipment or suit to be filed against Broadsmart, including any and all reasonable attorney’s fees and costs.
- Use of the Equipment – Customer shall use the Equipment solely for the purpose as originally intended in the network connection / configuration and protect such equipment from any damage or loss of any kind. Failure to return such Equipment when due and/or upon demand by Broadsmart will result in an immediate payment by Customer for the full Fair Market Value (FMV) of such Equipment.
- Insurance – During the Term, Customer agrees to keep the Customer Equipment not otherwise purchased by Customer fully insured against damage and loss, naming Broadsmart as the loss payee under a general liability insurance policy, to which Customer agrees to provide Broadsmart evidence of such insurance when requested. If Customer does not maintain its own policy, Broadsmart has the right to obtain such insurance at Customer’s expense. By executing this Agreement Customer is authorizing Broadsmart to obtain such insurance on a “forced placed” basis and to post charges for such insurance on the next available invoice of the Customer.
- Full Payment – All provisions referenced above shall cease in the event and upon full payment for the Equipment by Customer and with applicable transfer of title by Broadsmart.
- Third-Party Leasing of Equipment – In the event Customer leases all or a portion of the Equipment from a third-party leasing company, Customer shall be responsible for executing a separate equipment leasing agreement and shall be responsible for making payment 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, in the event of a dispute between Customer and the third-party leasing company, it shall not affect the rights and obligations of, by and between Broadsmart and Customer.
- 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.
- 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 User, or any Customer employee, contractor, or agent.
- 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.
- 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 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 YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. BROADSMART’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID AND/OR DUE BY THE CUSTOMER. 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.
- Governing Law. The parties agree that this Agreement shall be governed by the laws of the State of Florida, without regard for its conflicts of law provisions.
- Disputes. Except for disputes, controversies, claims or collection efforts regarding Customer’s failure to pay any charges, amounts or fees invoiced to Customer, any and all disputes, controversies and claims arising out of or relating to this Agreement or any Order Form, including its/their validity, shall be handled, determined, and resolved by arbitration conducted in the home court of the party initiating the arbitration, before one (1) arbitrator in accordance with the Commercial Arbitration Rules and Mediation Procedures then in effect of the American Arbitration Association. The arbitrator’s award shall be final and binding on the parties, and judgment confirming such arbitration award may be entered thereon in any court having jurisdiction over such proceedings. Each party shall bear its own costs and expenses of preparing and presenting its case and shall bear an equal share of the expenses and fees with respect to the arbitration. The arbitrator shall not be empowered to award damages in excess of direct compensatory damages and shall not be authorized to award special, indirect, punitive, incidental, or consequential damages, and each party irrevocably waives any damages in excess of direct compensatory damages.
- 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.
- 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.
- 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.
- 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.
- 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.
- Waiver. 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.
- Counterparts; Facsimile Signatures. This Agreement may be signed in counterparts and by electronic signatures, each of which shall be deemed an original and all of which taken together shall constitute a single instrument.
- Entire Agreement. Broadsmart and Customer hereby agree and stipulate that this Agreement 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 the same service. The Order Form is incorporated by reference into this Agreement and made part of this Agreement. However, where the terms of this Agreement and the Order Form contradict, the Order Form shall supersede and control.
- 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 public comments made by Broadsmart with respect to future Services, functionalities or features.
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;
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.
Broadsmart Hosted PBX and SIP Trunking
Service Level Agreement
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.
- 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|
- 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|
- Mean Time to Respond SLA
</ol start=”3″> 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|
- 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|
- 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:
- 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.
- 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.
- 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.
- 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 email@example.com. Customer will need to reference a valid Broadsmart incident trouble ticket in email Subject.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- No credits will be granted due to unavailability of any Broadsmart service due to Acts of God or during State of Emergency periods.
- 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.
- 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.
- 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.
- 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.
- 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.
- Access to Emergency Calling Services (911).
Broadsmart provides access to emergency calling services, allowing most users to access either basic 911 or Enhanced 911 (E911) service. Access may differ depending on Customer’s location or the equipment being used, and emergency calling services work differently than what Customer may have experienced using traditional wireline or wireless telephones. It is strongly recommended that Customer has an alternative means for placing emergency calls available at all times.
- How it Works.
When a Broadsmart user dials 911 on an IP desk phone or 911-enabled softphone, the Broadsmart phone number and the Registered Address the user has provided is sent to the local emergency center serving the user’s location. 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 the user’s Broadsmart telephone number or the user’s Registered Address. Users should always be prepared to provide the emergency operator with the user’s Broadsmart telephone number and Registered Address in case the call is dropped or disconnected. If the user is unable to speak, the emergency operator may not be able to send help to the location and/or call back should the call be disconnected. Broadsmart does not control whether or not the emergency operator receives your telephone number and Registered Address.
Emergency dialing with the Broadsmart Services works differently than emergency dialing over traditional phone service. In some cases, 911 calls dialed from your Broadsmart device cannot be directed to the local emergency response center, and are instead directed to a National Emergency Call Center (the “NECC”). That might happen if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network. 911 calls that are directed to the NECC may not include your Broadsmart telephone number or your registered address. Trained operators at the NECC will request your name, location, and telephone number and attempt to reach emergency responders in your local area. Until the user give the operator your phone number, and location, he/she may not be able to call the user back or dispatch help to your location if the call is dropped or disconnected.
- Service limitations.
Broadsmart 911 service will not function in the event of an Internet or power outage, if the user does not have cellular service (on the Broadsmart Mobile Application), or if your broadband, ISP, or Broadsmart Service is terminated. It is possible that network congestion may delay or prevent completion of a 911 call. Broadsmart 911 service may not be available if the user is dialing from a Broadsmart number that is not a United States number.
- Registering user’s Location.
Customer and its users agree to register with Broadsmart immediately upon activation of the account the address of the physical location where the user will use the Broadsmart Service, including each IP desk phone and each 911-enabled softphone. This will be the user’s “Registered Address”. Customer agrees that he or she will accurately register each individual line with Broadsmart for the applicable end user. If the Customer or its end users move a registered device, Customer agrees to immediately update the Registered Address with the new physical location of the device with Broadsmart. Customer acknowledges that if the Customer or its user do not update the Registered Address, any 911 calls made from the device may be sent to the wrong emergency response center and will not transmit their current location information to emergency responders, delaying emergency assistance to the user. It may take up to several hours for the address update to take effect. Customers with more than one line or extension are solely responsible for ensuring that an accurate and up-to-date Registered Address is maintained for each IP desk phone and each 911-enabled softphone, and that their end users are aware of how the Registered Address can be changed.
- Notification of Employees, Guests, or Other Users.
Customer agrees to notify any employees, contractors, guests, or persons who may place calls using the Services or may be present at the physical location where the Services may be used, of the limitations of Broadsmart 911 Service from Customer’s Broadsmart IP phone, or other equipment. Customer agrees to affix a sticker warning that 911 services may be limited or unavailable in a readily visible place on each piece of equipment that might be used to access or use the Services. Customer and its end users should always have an alternative means for placing 911 calls and/or sending text messages to 911.
- Disclaimer of Liability for Emergency Call Response.
Customer acknowledges and agrees that its use, and the use of its employees and/or guests or other third parties, of Broadsmart’s 911 Services are subject to the limitations described herein.
The availability of certain features, such as transmission of a Registered Address or your Broadsmart telephone number, depends on whether local emergency response centers support those features, and are factors outside of Broadsmart’s control. Broadsmart relies on third parties to assist us in routing 911 calls and text messages to local emergency response centers and to the NECC. Broadsmart does not have control over local emergency response centers, the NECC, emergency responders, or other third parties. Broadsmart disclaims all responsibility for the conduct of local emergency response centers, the NECC and all other third parties involved in the provision of emergency response services. Accordingly, to the extent permitted by applicable law, Customer and its users hereby release, discharge, and hold harmless Broadsmart from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of the response to any emergency or 911 call. Customer agrees to indemnify and hold harmless Broadsmart, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of: (i) Customer’s provision to Broadsmart of incorrect information, including physical addresses, or failure to update your Registered Address; (ii) failure to properly notify any person who may place calls using the Services of the 911 limitations; or (iii) the absence, failure, or outage of emergency service dialing using the Services for any reason; and (iv) the inability of any user of the Services to be able to dial 911 or access emergency service personnel for any reason.