WPG – Telephony Terms of Service

These online terms of service; including the Customer Order Agreement(s) and any applicable Service Attachments, which by this reference are incorporated herein (“Agreement”), are a binding agreement between WPG Consulting, LLC, a Delaware limited liability company with its primary office at 200 E 32nd St, Unit 7C, New York, New York 10016, (“WPG Consulting”), and the legal entity identified in the Customer Order Agreement(s) (“Customer”). WPG Consulting and Customer may be individually referred to as a “Party” or collectively as the “Parties.”

WPG Consulting provides services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that customer accepts and complies with this Agreement. By electronically signing this Agreement, Customer (a) accepts this agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or equipment.

The Parties agree as follows:

1. Definitions: All capitalized terms used in this Agreement which are not otherwise defined shall have the same meanings herein as are ascribed to such terms in those certain customer order agreements entered into from time to time by Provider and Customer.  As used in this Agreement, the term “COA” shall mean any Customer Order Agreement entered into by Provider and Customer and also shall include any amendment to any such customer order agreement.  

1. Services: On the terms and subject to the conditions set forth in this Agreement and each COA entered into by Provider and Customer, Provider shall provide the Services specified in such COA and as described in the WPG Consulting Service Descriptions.  All terms and conditions set forth in this Agreement, including, without limitation, the limited warranty, confidentiality, and limitation of remedies provisions, shall be automatically incorporated in, and deemed a part of, each COA entered into by the parties unless otherwise expressly provided therein.  To the extent the terms and conditions of any COA conflict with the terms and conditions of this Agreement, the terms and conditions contained in such COA shall control.  Each COA, together with this Agreement, shall be deemed to be a separate agreement (“Agreement”) between Provider and Customer for the sale and purchase of the Services described therein.  Provider may also provide hardware and related consulting services to Customer (herein, “Equipment”) in connection with any Agreement.  Customer shall use the Services and the Equipment in strict compliance with all applicable laws.  Customer shall not resell any Services or Equipment or act as a service bureau or otherwise allow any third party to utilize the Services or Equipment provided to Customer in exchange for compensation of any nature.

1. Term: Unless terminated in accordance with Section 15, Provider shall provide the Services described in each Agreement for the term(s) specified therein.  The term of each Agreement shall automatically renew for successive periods equal to the initial term unless such Agreement is terminated by either party at least thirty (30) days prior to the then current date of expiration.  Provider reserves the right to modify its fees for Services for any renewal term by notifying Customer in writing of such modification at least thirty (30) days in advance of the effective date of such renewal term. 

1. Fees: Provider will bill all fees and charges (described below) monthly via email.
   1. Monthly Recurring Monthly service fees including any associated taxes and fees are paid in advance of each month’s service.
   2. Non-Recurring Toll charges (as defined in section 5), and any other applicable charges which may include, but are not be limited to, usage charges, fax charges, activation fees, shipping charges, disconnection fees, equipment charges, cost recovery, and any other applicable charges, are billed subsequent to the end of each month’s service.
   3. Add-on Any additional Orders, software or licenses added after the commencement of Service will be billed pro-rata for the initial month.
   4. New Orders. New customers are billed in advance for all non-recurring charges and the first month of monthly recurring charges.
   5. Monthly billings for recurring fees in the amounts set forth in each Agreement shall be invoiced on the first day of each month and shall be due and payable by the last day of the month (the “Due Date”), without setoff or deduction. If Customer does not pay any invoice in full by the Due Date, the amount in default shall be subject to a late fee of 1-1/2% and shall bear interest at a rate equal to the lesser of 1-1/2% per month or the maximum interest rate permitted under applicable law until paid.  In addition, upon the occurrence of a Payment Default, Provider shall have the right to suspend the provision of Services under the Agreement in respect of which such Payment Default has arisen and under each other Agreement until such default is cured. Provider also shall have the right to terminate such Agreement and each other Agreement upon the occurrence of a Payment Default.  As used herein, a “Payment Default” shall be deemed to have occurred on the tenth day following the date when Provider has given Customer notice of a default in the payment of any amount due under any Agreement.
   6. Payments: Invoices must be paid by ACH or credit card only (fees apply). An invoice must be paid by up to 3 methods or transactions for a single invoice. Payments in excess of 3 for a single invoice will incur a $10 processing fee for each additional transaction.
   7. The following fees will be charged in addition to normal service fees. These fees may be changed with 30 days notice.

Fees Continued:

1. Taxes and Fees: The Services and certain of the Equipment are generally subject to a combination of federal, state and local taxes or surcharges, including, without limitation, universal service fund, telecommunications relay service surcharges, sales and use taxes, gross receipts, excise and utility users taxes, municipal occupation and license taxes, business and occupation taxes, regulatory recovery fees, 911 recovery charges, 911 fees or taxes, franchise fees and/or surcharges (collectively, “Taxes”). Taxes will be applied to all Customer transactions unless Customer has furnished Provider a properly completed and timely received resale or other exemption certificate for each state and tax type for which Customer claims non-taxable status.  Once Customer has provided the proper exemption certificate, Provider will cease charging Taxes on Customer’s monthly invoices.  Customer will not be entitled to any refund or credit for any previously invoiced Taxes. The delivery by Customer to Provider of any exemption certificate shall constitute Customer’s representation and warranty to Provider that Customer is legally entitled to the exemption(s) included therein.
   1. E911 All Customers are required to subscribe to Provider’s e911 service and will be subject to a monthly 911 recovery charge for each location with active Services. The monthly e911 service fee shall reimburse Provider for the direct costs it incurs in providing e911 service, including state, county and municipal e911 surcharges, e911 automatic location information (ALI) database storage, line information database and caller id (LIDB/CNAM) expenses, and any other taxes or surcharges directly or indirectly associated with the provision of e911 service. Provider reserves the right to adjust the level of charges associated with the provision of e911 service to reflect increases or decreases in the costs Provider incurs.
   2. International rates. International calling (except to Canada and Mexico landlines) is disabled by default for all Customer locations. To enable service, Customer must authorize locations for international calling by submitting a support ticket to Provider. When Customer dials an international PSTN phone number or mobile phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile or premium rate international telephone number may result in higher toll charges. International rates vary by destination country, city, and band, and are subject to change by Provider from time-to-time without prior notice. You will be charged for all calls to any international destination, excluding inclusive countries, in full-minute increments at Provider’s then-current rates as posted at  WPG Consulting International Rates. Note that certain limitations apply to Customer’s ability to place calls to certain international destinations and types of phones, including but not limited to, satellite phones.

1. Equipment:
   1. Provider may provide to Customer (either by sale or rental) certain equipment for use with the service, which may include telephone handsets, components, cables, manuals and documents, routers and other network equipment (the “Equipment”). Customer shall be responsible for replacing batteries or broken components, including handset, cords and clips.
   2. “Provider shall extend to Customer, on a ‘pass through’ basis, any warranty provided by the manufacturer of any Equipment to the extent permissible. Provider may assist Customer with such pass-through warranty service at Provider’s discretion. Shipping and handling fees to and from Customer’s location are at the Customer’s expense. Provider can provide shipping labels as needed. Any equipment rented from Provider shall receive an automatic extension of the manufacturer’s standard warranty for the duration of the rental period.
   3. Equipment that is lost or stolen while in the care, custody and control of Customer shall not be replaced by Provider and Provider shall have no liability for such Equipment. In such instances.
   4. Customer will need to procure replacement Equipment from Provider or elsewhere at the then current Provider retail price. The occurrence of lost or stolen Equipment does not extinguish Customer’s obligations in this Agreement.
   5. The Service is intended for use with Provider-provided or Provider-certified equipment only. Provider reserves the right to terminate or suspend the Service or service if other equipment is used by Customer without prior written approval by Provider.
   6. All equipment sold to Customer may be returned for a full refund within 30 days of purchase. Returns must be unused equipment in original packaging and the Customer must contact support to request an RMA prior to shipping equipment back to WPG Consulting. 

1. Reasonable Use, Prohibited Use, and Fraud:
   1. Reasonable Business Any of Provider’s Services that offer unlimited minutes of PSTN calls (“Unlimited Plans”) are for reasonable business use of Customer only. Activities such as: autodialling, continuous or extensive call forwarding, use of limited service plans for regular business use, fax broadcast, fax blasting, unlawful or unauthorized telemarketing, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process, AND where Customer’s average outbound minutes per user (defined as the total number of outbound minutes used by Customer divided by the number seats/licenses purchased by Customer) exceed 5000 minutes a month, are NOT Reasonable Business Use as intended for the Service. If Provider determines that Customer use of the Service is not within the scope of Reasonable Business Use, Provider reserves the right to invoice Customer for any additional users or usage at the then current per-minute rate and/or to terminate or modify the terms of Customer’s Service.
   2. Prohibited Any use of the Service or any other action that causes a disruption in the network integrity of Provider or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Service at the sole discretion of Provider. Customer understands that neither Provider nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Service. Customer agrees that it will NOT use the Service in ways that violate any law or regulation (including but not limited to laws prohibiting transmission of unsolicited fax advertisements), infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service. Customer agrees and represents that it is purchasing the Service for its own internal use. Customer shall not sell, resell, transfer or assign, or make a charge for the Service without the advance written permission of Provider.
   3. Fraud: It is the express intention of the parties that Customer, and not Provider, shall bear the risk of loss arising from any unauthorized or fraudulent usage of the Provider reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to particular calling numbers or geographic areas) to prevent or terminate any fraud or abuse in connection with the Service, or any use thereof, provided, however, that any such action shall be consistent with applicable federal and state laws, rules, and regulations and provided further that the failure to take any such action shall not limit Customer’s responsibility for all usage of the Service. 

1. Telephone Number:
   1. Any telephone number provided to Customer (“Number”) shall be available for Customer’s use of the Service during the term of this Agreement. Where customer wishes to port in telephone number(s) for use with the Service, Customer should NOT cancel service with the current/previous service provider(s) until Provider confirms to Customer that the numbers have been successfully ported to Provider. Customer is responsible for the timely termination of all services with current/previous service provider and the settlement of any charges owed to their current/previous service provider. Additionally, Customer is responsible for the verification that the Number(s) provided to Customer meet the necessary requirements of Customer (i.e., such Number will be considered a local number to Customer in Customer’s area or such number is sufficiently different from a customer competitor’s number, etc.). Provider will reasonably accommodate Customer with a vanity number selection, prefix or sequence, as available and able to accommodate. Provider accepts no responsibility or liability in the number ultimately issued or selected for the Service.
   2. Customer will receive one free directory listing for each location’s main phone number.
   3. Customer’s porting away of a telephone number does not extinguish Customer’s obligations and/or limitations under this Agreement, including the notice requirements in sections 3 and 15. Customer has the right to port out any assigned phone numbers during the term of this Agreement, provided the account is in good standing. 

1. Support and Scheduled Maintenance:
   1. Provider support for the Service is described in the WPG Consulting Support Agreement.
   2. Scheduled Maintenance. From time-to-time, Provider performs maintenance to update servers and software that are part of the Provider performs scheduled maintenance between 11:00pm and 5:00am Customer’s local time on Friday, Saturday or Sunday nights. Maintenance is generally performed on a single region at a time to avoid service disruption or downtime. Provider may, in certain circumstances, need to perform maintenance at other times. At any time that Provider is required to perform emergency or un-planned maintenance, Provider will notify all contacts who have subscribed to alerts at http://status.WPG.us. However, at times, emergency or un-planned maintenance may have to be done before Provider can give any notice to Customer. In any event, Provider will not be liable (under this Agreement or any uptime service agreement) for service interruptions where maintenance is prudent to perform. 

1. Customer Representations and Warranties: Customer represents and warrants to, and covenants with, Provider that: (a) Customer has and will have all requisite power and authority to enter into and perform its obligations under each Agreement; (b) should Customer receive notice of a claim regarding any aspect of the Services, Customer shall promptly provide Provider with written notice of such claim; (c) Customer possesses or will obtain the hardware, software, cabling and network (“Customer’s System”) to accommodate the Services and Equipment provided by Provider, and acknowledges that the Services and Equipment provided by Provider may perform at different ranges depending on the Customer’s System; and (d) Customer possesses or will obtain an uninterruptible power source for Customer’s System to avail itself of the uninterrupted supply of Services to the extent offered by Provider. 

1. Confidentiality: Neither party shall use or disclose to any third party any Confidential Information regarding the other party or its business or operations.  The term “Confidential Information” includes any information about either party that is or reasonably would be expected to be treated by such party as confidential or proprietary and shall include, without limitation, all software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data.  Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (b) was known to the receiving party as of the time of its disclosure; (c) is independently developed by the receiving party; or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. 
   1. Neither party shall make any disclosure of Confidential Information regarding the other party to any person other than its employees who have a need to know that is directly related to their employer’s performance of its obligations under any Agreement.  Each party shall notify its employees of the confidentiality obligations and shall require such employees to provide reasonable assurances that they will comply with these obligations to the same extent as if they were parties to this Agreement. 
   2. If either party is requested or required by law or by any court or governmental agency or authority to disclose any Confidential Information regarding the other party, it will provide such other party with prompt notice of such request or requirement prior to such disclosure.  Such other party may then either seek appropriate protective relief from all or part of such request or requirement (including confidential treatment of any such disclosure if required) or waive compliance with the provisions of this Agreement with respect to all or part of such request or requirement.  Each party agrees that it will cooperate with the other party in attempting to obtain, at such other party’s expense, any protective relief which such other party chooses to seek.  If, after such other party has had a reasonable opportunity to seek such relief, and, in the opinion of counsel for the party that has received the request or demand, such party is legally compelled to disclose any of the Confidential Information to such court, agency or authority, such party may disclose that portion of the Confidential Information which counsel advises that it is compelled to disclose. 

1. Limited Warranty; 911 Acknowledgement:
   1. Except for those express warranties (if any) included in any coa, provider makes no warranties, express or implied, including, but not limited to, those of merchantability, fitness for a particular purpose, title or non-infringement.  Without limiting the generality of the foregoing, provider disclaims any responsibility for loss of data resulting from delays, non-deliveries, misdeliveries or service interruptions caused by third parties or the accuracy or quality of information obtained through its services. Use of any information obtained by provider’s services is at customer’s risk.   Customer acknowledges that the services are provided “as is, as available” without any warranty of the quality, performance or functionality of the services.  Customer acknowledges that services may be temporarily unavailable for a number of reasons, including but not limited to capacity constraints or transmission limitations, and may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs, and similar activities necessary for the repair or improved operation of the services.
   2. Without limiting the generality of the foregoing, customer acknowledges that 911 and e911 VoIP services will not be available to it if (i) the telephone device to which a particular telephone number has been assigned is moved to a location outside the premises where the telephone device was originally installed, (ii) there is an outage, degradation or other disruption of power at customer’s premises or (iii) there is an outage, degradation or other disruption of customer’s broadband internet connection, whether such connection is provided by provider or another entity.  In any such circumstance, customer acknowledges and agrees that provider will not be liable for any inability to dial 911 using voice services provided by provider, and customer further agrees to indemnify and hold harmless provider, its officers, managers, employees, affiliates and agents and any other service provider that furnishes services to customer in connection with the voice services provided by provider, from any and all claims, losses (including loss of profits or revenue), damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees and expenses) by, or on behalf of, customer or any third party or user of such voice services relating to the non-availability of 911 dialling. 

1. Limitation of Liability: Provider shall have no liability for unauthorized access to, or alteration, theft or destruction of, customer’s data files, programs or information through accident, fraudulent means or devices. Provider shall have no liability with respect to its obligations under any agreement or otherwise for lost profits or revenues, loss of use, lost or damaged data, reports, documentation or security or similar economic loss, or for any indirect, consequential, exemplary, special, incidental, or punitive damages even if provider has been advised of the possibility of such damages. The liability of provider to customer under any agreement for any reason and upon any cause of action shall be limited to the amount actually paid to provider by customer under such agreement during the six (6) months immediately preceding the date on which such claim accrued.  Prior to the completion of six (6) months of services under any agreement, provider’s liability will not exceed an amount equal to the actual amount paid during such period. This limitation applies to all causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any other claim sounding in contract or tort. 

1. Service Level Agreement: Provider will provide support and maintenance to Customer in accordance with the Service Level Agreement (“SLA”)and incorporated herein by this reference. SLA credits due to Customer shall first be deducted from any past due amount. Application of credits by Provider shall not waive Customer’s obligation to pay any remaining balances or future amounts. 

1. Termination: Either party shall have the right to terminate any COA without penalty, upon written notice to the other, within sixty (60) days following the first activation of any Services to be provided pursuant to such COA (the “Pilot Term”). In addition, either party shall have the right to terminate any COA if the other party breaches or is in default of any obligation thereunder and such breach or default is incapable of cure or, if capable of cure, has not been cured within thirty (30) days following written notice thereof; provided, however, that each COA, together with all other Agreement, may be terminated immediately (a) by the Provider upon the occurrence of a Payment Default thereunder and (b) by the Customer upon Provider’s default in respect of its obligations under the SLA for three (3) consecutive months.  Customer shall be deemed to be in default under each COA to which it is a party if a bankruptcy proceeding is instituted by or against it and is not dismissed within thirty (30) days, or results in an adjudication of bankruptcy.  Notwithstanding the foregoing, upon the occurrence of a Payment Default under any COA, Provider may, at Provider’s option, suspend the provision of Services under the Agreement in respect of which such Payment Default has arisen and under each other COA until such default is cured, without terminating such COA or any other COA, and Customer shall remain obligated to make all payments due thereunder until the expiration of the term thereof, including repayment of all one-time fees discounted or waived under any COA. 

1. Indemnification: Customer shall indemnify and hold Provider harmless from all third-party claims, suits, demands, judgments and other actions, and all costs required to be borne by Provider (including attorney’s fees and expenses), arising from Customer’s use of the Services or breach of any provision of any Agreement. 

1. Governing Law: Each Agreement shall be deemed to have been entered into in the State of California and shall not become a binding obligation of Provider until it has been executed by one of its officers or managers residing in the State of California.  Without limiting the generality of the foregoing, the parties agree that this Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois without regard to conflicts of laws provisions thereof. 

1. Arbitration: Binding arbitration shall be the sole and exclusive remedy for the resolution of any Dispute between the parties.  Any Dispute shall be submitted for arbitration in Chicago, Illinois under the rules of the American Arbitration Association (“AAA”).  The arbitrator’s decision will be final and may be entered in any court of competent jurisdiction.  The prevailing party shall be entitled to recover its attorneys’ fees and costs in connection with such arbitration.  Should either party attempt to litigate a Dispute in any forum other than the AAA, the arbitrator may award the other party its reasonable costs and expenses, including attorneys’ fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this Section 18.  This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq.  As used herein, the term “Dispute” means any dispute, controversy or claim arising out of or relating to any Agreement, its interpretation, or the breach, termination, applicability or validity thereof. 

1. Assignment: Provider may assign any Agreement and all Provider’s rights, duties and obligations thereunder without Customer’s consent. Customer may not assign, without the prior written consent of Provider, its rights, duties or obligations under any Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of such Agreement.  Each Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 

1. Confidentiality of Terms: Neither party shall disclose any of the terms or conditions of this Agreement or any Agreement without the prior written consent of the other; provided, however, in any of its sales and marketing materials, Provider may refer to Customer as its customer. 

1. Amendment: Any Agreement may be modified only by a written instrument executed by each party. 

1. Notices: Any notice required or permitted to be given hereunder shall be in writing and shall be delivered (a) in person or by courier or overnight service, (b) by first class registered or certified mail, postage prepaid, return receipt requested, or (c) by facsimile or e-mail transmission to the address in the signature block below and shall be deemed to have been delivered (i) on the date on which delivery is made if delivered in person or by courier or (ii)  on the date received if delivery is made by facsimile or e-mail transmission or by mail.  Either party may change the address to which notices are to be sent by giving written notice of such change to the other party in the manner hereinbefore provided. 

1. Force Majeure: Except for the payment of fees by Customer, each party shall be excused for the period of any delay and will not be deemed in default with respect to the performance of any of the terms of any Agreement if such performance is prevented, hindered, delayed or otherwise made impracticable
2. Integration.  This MSA supersedes all prior agreements or understandings, oral or written, between the parties with respect to the subject matter hereof. 
   
3. Entire Agreement. Each Agreement entered into by Provider and Customer, including all schedules and exhibits to any COA, shall constitute the entire agreement between Provider and Customer with respect to the subject matter thereof.
   
4. Waiver Clause.  The waiver or failure of either party to exercise any right in any respect provided for in any Agreement shall not be deemed a waiver of any further right thereunder or under any other Agreement.
   
5. Severability.  If any provision of any Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of such Agreement shall remain in full force and effect.
   
6. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation of this MSA.
   
7. Survival. All provisions of this MSA relating to remedies, Customer Content, Customer warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Customer indemnification obligations and payment obligations shall survive the expiration or earlier termination of any Agreement.
   
8. Independent Contractors.  Provider and its personnel, in the performance of Provider’s obligations under this Agreement, are acting as independent contractors and not employees or agents of Customer.
   
9. Counterparts. This MSA, and each Agreement now or hereafter entered into, may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one counterpart has been signed by each party and delivered to the other party.