Master Service Order Agreement
Terms and Conditions
1. SCOPE AND SERVICES. SCOPE. These terms and conditions apply to the provision of all telecommunications and other services (“Services”) by SmartChoice, LLC., on behalf of itself and its operating affiliates (“SmartChoice”) to Customer under the Master Services Agreement (“Agreement” or “MSA”) and each Service Order Agreements (“SOA”) to which this schedule is a part. The Services will be offered in each area to the Customer by SmartChoice or by an entity (the “Authorized Entity”) which is an affiliate or provider of SmartChoice authorized to provide the Services in the applicable jurisdiction. The terms and conditions of this Agreement are, and shall be, applicable to the Services provided to the Customer by each Authorized Entity.
2.TERM. The initial term of the Agreement will commence on its Effective Date and end three (3) years thereafter. The Agreement will automatically renew on a month-to-month basis unless one Party provides the other with written notice of its intent not to renew it at least sixty (60) days prior to the end of the initial term or at least thirty (30) days prior to the end of any renewal term. The Initial Service term for each SOA shall be as set forth on the respective SOA (the “Initial Term” or “Term”) and shall begin on the Service Commencement Date as defined in Section 10 of this Agreement. If no Initial Term is set forth on the SOA, the term of said SOA shall be month-to-month. If a Term of Services established in a SOA extends beyond the date of expiration of the MSA the affected Services will be provided in accordance with the term established in the SOA pursuant to the terms of the MSA as though it had remained in full force and effect.
3. TERMINATION. Customer may terminate this Agreement, or any SOA, before the respective Term expiration date only upon sixty (60) days written notice to SmartChoice; however, in such case Customer shall be obligated to pay SmartChoice early termination charges as set forth in Sections 13, 14 of this Agreement. In the event Customer is terminating Services not currently under a Term, the end billing date of said services shall be sixty (60) days plus the days remaining in the month in which Customer notifies SmartChoice of said disconnection request.
4. RENEWAL. Unless Customer notifies SmartChoice in writing no less than thirty (30) days before the end of the Term(s) of each SOA(s) (the “Termination Window”), said SOA(s) shall be automatically renewed to the Initial Term as it was set forth in said SOA(s). SmartChoice shall, within at least fifteen days, but not more than 30 days, prior to the Termination Window, serve written notice, via certified mail, upon Customer, calling the Customers attention to the existence of this provision of this Agreement. SmartChoice shall not be responsible for notifying the Customer when the Agreement expires and/or when the Agreement shall renew.
5. RATES. The rates for Services shall be set forth in the SOA. SmartChoice reserves the right to make rates adjustments, without notice, based on underlying carrier’s service provider’s price adjustments.
6. ACCEPTABLE USE POLICY. This Agreement is subject to and controlled by SmartChoice’s Acceptable Use Policy, as located at www.smartchoiceus.com/acceptable-use-policy/ as such terms may be modified from time to time and all of which are hereby expressly incorporated by reference.
7. RIGHT TO MAKE SERVICE CHANGES. SmartChoice retains the right to change, increase, or decrease from time to time, in its discretion and without liability to Customer, the methods, processes, and/or the suppliers by which SmartChoice provides Services to Customer, as well as to change, add to, or delete Service offerings, with ten (10) days’ notice to Customer.
8. PAYMENT. Customer shall pay SmartChoice for Services pursuant to this Agreement and SOA. Prices for Services are exclusive of applicable taxes, tariffs, fees, and surcharges. Customer agrees to pay the applicable set-up, installation, and disconnect fees prior to the Service Commencement Date. Installation and disconnect fees are non-refundable. Regular billing for the Services will begin on the Service Commencement Date (as defined in Section 10 of this Agreement). Thereafter, invoices will be for the specified period of Service (monthly), and are due upon receipt. Receipt shall be presumed within 3 days after mailing. Monthly recurring charges will be billed in advance, while usage and related charges are billed in arrears. Invoices will include, but not be limited to Service fees, applicable usages, option fees, and any applicable taxes. Customer agrees that any additional Services requested, including but not limited to an upgrade or relocation of Customer’s circuit(s), will incur additional fees and charges, and Customer agrees to pay these fees and charges when invoiced. Invoices not paid within 30 days after receipt, unless otherwise specified on the invoice, will be considered past due and will be subject to a 1.5% per month interest fee or the maximum rate permitted by law, whichever is less. Customer agrees to reimburse SmartChoice for any costs incurred as a result of any collection activity, including but not limited to reasonable attorneys’ fees, unless otherwise prohibited by law. Customer authorizes SmartChoice to request information from a reporting agency to enable SmartChoice to assess Customer’s credit history. Such action is not an extension of “credit” to Customer; and SmartChoice may alter any Service or billing arrangements as a result of such report, upon notice to Customer. In addition, Customer acknowledges that SmartChoice may require Customer to submit a deposit, bond, or other financial assurances of payment to SmartChoice if so requested by SmartChoice in its sole discretion. In the event Customer disputes, in good faith, any invoice, or item under any invoice, Customer will, within twenty (20) days of the receipt of the given invoice, provide SmartChoice with a written notice setting forth the details of the disputed invoice or item, and the amount in question. Notwithstanding such dispute, Customer will timely pay to SmartChoice the disputed invoice in full. Promptly after resolution of any dispute, as determined by SmartChoice in its sole discretion, the amount of any overpayment, if any, will be applied as a credit to Customer on the next billing cycle. In no event shall SmartChoice be responsible to provide retroactive credit for overages, to the Customer, for more than two (2) previous billing cycles.
9. COMMUNICATION FACILITIES AND EQUIPMENT. In the event SmartChoice is required to construct and/or acquire communication facilities in order to provide Service to Customer, Customer acknowledges and agrees that SmartChoice will incur significant costs in provisioning such Service to Customer, including costs associated with constructing and/or acquiring the communications facilities. Once Customer cancels, terminates, or breaches this Agreement after execution but before the end of the Term date as stated in Section 3 of this Agreement, Customer shall, in addition to termination fees set forth in Sections 13, and 14, reimburse SmartChoice for all costs SmartChoice incurs in constructing and/or acquiring such Communications facilities in addition to any other rights and remedies SmartChoice may have. Customer shall owe and pay the full market value of any equipment not returned within 30 days of the end of this agreement. If the equipment is returned within the 30 days of the end of this agreement but damaged, the customer will be held liable at full market value of the equipment cost.
10. SERVICE COMMENCEMENT DATE. SmartChoice will notify Customer that the Services are installed or connected and available for use. The date of such notice shall be the “Service Commencement Date.” SmartChoice may begin billing the Customer on the Service Commencement Date even if Customer notifies SmartChoice in writing that it is not prepared to utilize the Services or facility. SmartChoice shall not be liable for any damages whatsoever resulting from delays in meeting Service delivery dates requested or specified by Customer or inability to provide Services.
11. ACCESS TO PREMISES. Customer shall provide to SmartChoice’s employees, or its agents, reasonable access to Customer’s premises and facilities to install, test, maintain, repair, retrieve SmartChoice equipment, remove, replace, and service SmartChoice’s equipment that is to be necessary to provide the Services.
12. NO FEE CANCELLATION. Customer may not cancel this Agreement or any SOA if there is a delay in installation related to the Services, unless such delay is solely due to SmartChoice’s inability to provide Services and such delay is longer than 180 days beyond the parties agreed Service Commencement Date and said delay is not due to a Force Majeure Event (as defined herein). However, in no event Customer may cancel this Agreement without various termination fees as stated in Sections 9, 13-14 of this Agreement, if SmartChoice has agreed to construct or is in the process or actively constructing Communication Facilities to provide Services to the Customer.
13. DEFAULT AND TERMINATION. If after the Service Commencement Date, except as otherwise required by law, Customer (a) fails to pay any amount required under this Agreement when due and such failure continues for ten (10) days after written notice to Customer that the same is due and payable; and/or (b) fails to comply with any other material provision of this Agreement and such noncompliance continues for thirty (30) days after written notice to Customer thereof; and/or (c) Customer cancels or terminates Service at any time before completion of the Initial Term or any renewal Term; then SmartChoice may elect in its sole discretion to pursue one or more of the following courses of action:
(1) terminate all, or part, of Customer’s Service(s), whereupon all nonrecurring and recurring charges for the remainder of the Term(s) are accelerated and become due and payable immediately together with an early termination charge that shall be equal to 100% of the Customer’s average monthly usage and recurring charges for the three month prior to the termination date, times the number of months remaining in the Term of the Agreement, along with all nonrecurring charges; and/or (2) take immediate appropriate action to enforce payment, including suspension or discontinuance of all or any part of the Services to the Customer; and/or (3) pursue any other remedies as may be provided at law or in equity. In addition to any other rights and remedies SmartChoice may have, including, but not limited to, those set forth in Section 9 of this Agreement, Customer agrees that if Customer cancels, terminates, or breaches this Agreement after execution of the Agreement but prior to the Service Commencement Date, except the termination permitted under the Section 12 of this Agreement, Customer shall pay SmartChoice an early termination charges as stated in Sections 9, 13-14 of this Agreement.
14. EARLY TERMINATION CHARGES. Early termination charges shall be equal to 100% of the Customer’s average monthly usage and recurring charges for the three months prior to the termination date (or such lesser period if fewer than three months of Service were utilized), times the number of months remaining in the Term of the Agreement, along with all nonrecurring charges.
15. TERMINATION AS A NON-EXCLUSIVE REMEDY. Any termination of the Services or this Agreement by SmartChoice shall not be construed as an exclusive remedy and shall not preclude or waive SmartChoice’s right to pursue any other available remedies. It is agreed that SmartChoice’s damages in the event of Service cancellation or termination shall be difficult or impossible to ascertain. Section 9, Section 13, and Section 14 of this Agreement are intended, therefore, to establish liquidated damages, and not intended as a penalty or punitive damages.
16. DISCLAIMER OF WARRANTIES. SmartChoice MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT, OR SmartChoice OWNED OR PROVIDED EQUIPMENT USED BY THE CUSTOMER INCLUDING TO ANY EQUIPMENT WITH RESPECT TO WHICH TITLE MAY TRANSFER TO CUSTOMER (EXCEPT TO THE EXTENT SET FORTH IN A SEPARATE SALE TRANSFER DOCUMENT). THIS INCLUDES, BUT IS NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS. ADDITIONAL WARRANTY LIMITATIONS RELATED TO SPECIFIC PRODUCTS MAY BE FOUND AT WWW.SMARTCHOICEUS.COM AND ARE INCORPORATED BY REFERENCE HEREIN.
17. LIMITATION OF LIABLITY. WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER THIS AGREEMENT AND/ OR SERVICES PROVIDED HEREUNDER, SmartChoice’S LIABILITY FOR SERVICE INTERRUPTIONS OR PROBLEMS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES, AS EXPRESSLY PROVIDED IN APPLICABLE TARIFFS OR AS OTHERWISE SET FORTH IN THE TERMS AND CONDITIONS.
- A. DIRECT DAMAGES. SmartChoice SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMGES RESULTING FROM: (i) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OF AN ACCOUNT, EQUIPMENT, OR SERVICE; (ii) ANY ACT OR OMISSION OF CUSTOMER, OR ITS END- USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS, OR SERVICES TO CUSTOMER; OR (iii) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR EQUIPMENT, EVEN IF SmartChoice HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ONLY EXCEPTION SHALL BE TO THE EXTENT PROPERTY DAMAGE TO CUSTOMER’S PREMISES IS CAUSED DUE TO SmartChoice’S SOLE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROVIDED, HOWEVER, IN NO EVENT SHALL SmartChoice’S LIABILITY FOR DIRECT DAMAGES BE GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO SmartChoice DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED, BUT IN NO EVENT SHALL SUCH DAMAGES EXCEED $3,000.
- B. INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, SAVINGS OR REVENUE, INTERRUPTION OF BUSINESS OR HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY CAUSE WHATSOEVER.
- C. SERVICE INTERRUPTIONS. THE TERMS, CONDITIONS, AND PRICING OF THE SERVICE WHERE ONE OR BOTH LOCATIONS TO BE CONNECTED ARE NOT SERVED BY THE SmartChoice’S NETWORK AND, AS A RESULT, A PORTION OF SERVICE IS PROVIDED BY ANOTHER SERVICE PROVIDER, ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE UNDERLYING SERVICE PROVIDER. SmartChoice WILL INVOICE CUSTOMER FOR SUCH SERVICE AND WILL MANAGE THE PROVISIONING OF SERVICE BUT SHALL NOT BE LIABLE FOR ANY SERVICE FAILURES OR DEFICIENCIES ON THE PART OF THE UNDERLYING SERVICE PROVIDER.
SmartChoice’S LIABILITY FOR SERVICE INTERRUPTIONS, IF ANY, SHALL BE LIMITED TO CREDIT OUTAGE ALLOWANCES. NO CREDIT ALLOWANCE WILL BE GIVEN FOR INTERRUPTIONS OF LESS THAN TWENTY FOUR (24) HOURS FROM THE TIME THE INTERRUPTION IS EITHER REPORTED. IF SERVICE IS INTERRUPTED FOR A PERIOD OF MORE THAN TWENTY-FOUR (24) HOURS, CREDIT WILL BE GIVEN IN AN AMOUNT EQUAL TO ONE-THIRTIETH (1/30) OF THE APPLICABLE MONTHLY RECURRING CHARGES FOR EACH TWENTY-FOUR (24) HOUR PERIOD OR FRACTION THEREOF THAT THE SERVICE REMAINS INTERRUPTED. CREDIT ALLOWANCES AWARDED SHALL NOT EXCEED THE APPLICABLE MONTHLY RECURRING CHARGES FOR SERVICE DURING A MONTHLY BILLING PERIOD. ONLY THOSE SERVICE COMPONENTS INVOLVED IN THE INTERRUPTED PORTION OF THE SERVICE WILL BE CREDITED.
18. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold harmless SmartChoice and its officers, directors, employees, agents, affiliates, and suppliers from and against any claims, actions, demands, losses, and damages, including attorney’s fees, relating to any violation of this Agreement or related acts or omissions by Customer, its end users, or other users of its account, or the replacement or transmission of any messages, information, software, or other materials on the Internet by Customer or end users of Customer’s account. This indemnification shall survive the termination of the Agreement. Customer will be responsible for SmartChoice’s attorney’s fees in the event Customer brings legal action towards SmartChoice.
19. COMPLETE AGREEMENT AND MODIFICATION. This MSA, SOA, 911 Disclaimer, any applicable tariffs, shall represents the complete and final agreement which shall supersedes any and all other agreements whether written or oral, including but not limited to any advertising, brochures, proposals, offers, negotiations, representations, or understandings regarding the subject matter hereof. This Agreement may be modified only in writing signed by both parties. This MSA and its provisions stated herein shall modify and replace all previously entered service agreement(s) between SmartChoice and Customer and shall be applicable to all services either subsequently or priorly provided by SmartChoice to Customer.
20. INCONSISTENCY. In the event of any inconsistency between the terms and conditions contained herein and such SOA terms and conditions, and only to the extent of the inconsistency, the Agreement’s terms and conditions contained herein shall control.
21. ASSIGNMENT. Customer may not sell, transfer, or assign this Agreement, without the prior written consent of SmartChoice that may be withheld for any reason in the sole discretion of SmartChoice. Any assignment in derogation of the foregoing sentence is null and void.
22. CHOICE OF LAW. This Agreement shall be governed by the laws of the State of Missouri without reference to its principles of conflicts of laws, and Customer consents to the nonexclusive jurisdiction of the federal and State courts located in the State of New York, New York County.
23. SEVERABILITY. Any provision found unlawful by a court or regulator having jurisdiction shall be deemed to be severed from the Agreement, but such severance shall have no effect on the enforceability of the remaining provisions of the Agreement.
24. TARIFFS AND SLA. This Agreement is subject to and controlled by SmartChoice’s federal and state tariffs as applicable, Terms and Conditions, E-911 Disclosure, and/or by SmartChoice’s Service Level Agreement as located at www.smartchoiceus.com/tariffs as such tariffs and terms may be modified from time to time and all of which are hereby expressly incorporated by reference.
25. FORCE MAJEURE. Except with respect to Customer’s payment obligations, notwithstanding any other provision of the Agreement, neither Party shall be liable to the other Party for any delay or failure in performance of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, accident, war, strike, embargo, governmental requirement, civil or military authority, Act of God, pandemic, inability to secure materials or labor or any other causes beyond its reasonable control. Any such delay or failure shall suspend the Agreement until the Force Majeure ceases.
SmartChoice’ (“Smart Choice”) E-911 Emergency Dialing Services is a VoIP based services. Therefore, it is subject to certain limitations and outage factors that are different from traditional 911 services.
It is important that you read, understand, and inform all employees and guests of these important limitations.
I, ACKNOWLEDGE THAT THE E-911 SERVICES PROVIDED BY SMART CHOICE DO NOT SUPPORT TRADITIONAL 911 ACCESSES TO EMERGENCY SERVICES. WHERE AVAILABLE, SMART CHOICE’ SERVICES MAY INCLUDE E-911 ACCESS TO THIRD PARTY EMERGENCY SERVICES. SMART CHOICE ADVISES CUSTOMER TO MAINTAIN OR ACQUIRE AN ALTERNATIVE MEANS OF ACCESSING 911 SERVICES. YOU AGREE TO ADVISE ALL EMPLOYEES, VISITORS AND OTHER PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE YOU UTILIZE THE SERVICE OF EACH OF THE LIMITATION OF SMART CHOICE’ EMERGENCY.
DIALING SERVICE AND OF AN ALTERNATIVE MEANS OF 911 DIALING. Customer also understands and acknowledges that Smart Choice’ emergency dialing feature is only available in United States mainland (excluding Alaska, Hawaii, Puerto Rico, and Guam).
REGISTRATION OF PHYSICAL LOCATION REQUIRED. You must provide the physical location where you will be using the Service. When you move the Equipment (Equipment refers to the Smart Choice VoIP Adapter or any on premise equipment including soft phones), you must register your new physical location with a Smart Choice customer service representative. All E-911 calls are directed to emergency responders based upon the address you register with Smart Choice. If you move the Equipment and do not register the new physical location, emergency responders will be dispatched to your previous physical address.
SERVICE OUTAGES; BROADBAND OUTAGES; CONGESTION; AND SERVICE INTERRUPTION. Smart Choice E-911 emergency dialing services will not function in the event of a power outage or other interruption to your electricity service until the power is restored. Following a power disruption, you may need to reset your Equipment before Smart Choice’ Services, including emergency dialing service, will function properly. Service outages, or suspensions, or terminations of service by your broadband provider or ISP will prevent the Services, including the Smart Choice E-911 emergency dialing service from functioning. Any interruption in your internet access will prevent you from placing E-911 calls during the interruption. Broadband phone service is inherently subject to more network congestion and reduced speed in the routing of E-911 calls than traditional 911 dialing over traditional PSTN. In the event that your Smart Choice account is suspended or terminated for any reason, your Smart Choice Services, including Smart Choice E-911 emergency dialing service, will not function.
DISCLAIMER OF LIABILITY AND INDEMNIFICATION. Smart Choice does not control how E-911 calls are answered or handled by any local emergency response center. Smart Choice disclaims all responsibility for the actions and conduct of any and all national and local emergency response centers. Smart Choice relies entirely upon third parties to route E-911 calls to local and national emergency response centers. Smart Choice disclaims any and all liability or responsibility in the event such third party data used to route the call is incorrect or produces an erroneous result. Neither Smart Choice nor its officers, directors, or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action arising from or related to the Services unless such claims arose from Smart Choice gross negligence, recklessness, or willful misconduct. You, on your own behalf and on behalf of any third party, hereby agree to defend, indemnify and hold harmless Smart Choice, its officers, directors, employees, and agents from and against any and all claims, losses, damages, fines, penalties, costs, and expenses (including attorneys’ fees) relating to the absence, failure, or outage of the Service, including the Smart Choice E-911 emergency dialing service or access to emergency service personnel.
UNDERSTANDING, ACKNOWLEDGEMENT AND ALTERNATIVE 911 SERVICE. You hereby acknowledge your understanding of the limitations of the Smart Choice E-911 emergency dialing services described above. In the event that you are not completely comfortable with the limitations of the Service, including the Smart Choice E-911 emergency dialing service, you should immediately take action to acquire alternative means to access 911 services.
IN ANY CASE, THE CHANGES SHALL NOT DIMINISH ANY SERVICE LEVELS COMMITTED TO CUSTOMER IN ANY APPLICABLE SERVICE LEVEL.
Service Level Agreement
The following service level objectives combine to form SmartChoice, LLC’s (“SmartChoice”) Service Level Agreement (“SLA”). SmartChoice, LLC utilizes this SLA to cover all network pieces. Each service level objective is governed by the following Exclusions set forth in the specific section for each objective:
Network Availability Guarantee:
- Network availability when subscribed to a single network connection ≥ 99.9%.
- Network availability when subscribed to redundant network connections ≥ 99.99%.
- Packet loss ≤ 1%.
- Latency ≤ 80 ms.
Server and Network Device Monitoring and Management Service Guarantee:
Monitoring platform availability ≥ 99.5%.
Ticket created within 30 minutes of service fault – Any failure.
Network device configuration files backed up upon configuration modification – Any failure. Network device configuration restores occur within 4 hours of request – Any failure.
Network device configuration changes occur within 48 business hours of request – Any failure.
Hours specifically excluded from the calculation of the Network Availability Guarantee and/or Server and Network Device Monitoring and Management Service Guarantee are:
(a) all planned down time including the standard Maintenance Window and the other scheduled down time;
(b) a service interruption caused by a security threat until such time as the security threat has been eliminated;
(c) reasons of a Force Majeure Event (as defined in this SLA) or Exclusions from SmartChoice’s Immediate Control (as defined in this SLA);
(d) use of unapproved or modified configuration change or hardware by or on behalf of Customer or acts or Customer’s omissions;
(f) issues arising from misuse of the Services by Customer or its agents, customers, vendors, network providers, or third party contractors; and/or
(g) Customer’s power outages.
Force Majeure Events
SmartChoice shall not be deemed in default of this SLA, nor shall it hold Customer responsible for, any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond the reasonable control of SmartChoice. If a force majeure event extends for a period in excess of 72 hours in the aggregate, Customer shall notify SmartChoice in writing.
Immediate control includes all components below:
(a) SmartChoice’s network services within SmartChoice data center which extends to, includes and terminates at the Internet Service Provider (“ISP”) circuit termination point on the router in SmartChoice’s data center (i.e., public Internet connectivity); and/or
(b) Hardware provided by SmartChoice and managed at SmartChoice’s data center.
Exclusions from SmartChoice’s Immediate Control
Specifically excluded from the definition of “Immediate Control” are the following components:
(a) Equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer and Customer’s network services which allow the Customer to access SmartChoice network. These components are controlled by the Customer and their performance or failure to perform can impair or disrupt Customer’s connections to the Internet and the transmission of data;
(b) Equipment, data, materials, software, hardware, services and/or facilities provided by third party vendors or by service providers of Customer;
(c) Acts or omissions of Customers, its employees, contractors, agents or representatives, third party vendors or service providers of Customer or anyone gaining access to SmartChoice’s hardware or network at the request of Customer;
(d) Issues arising from bugs or other problems in the software, firmware or hardware of third parties;
(e) Delays or failures due to circumstances beyond SmartChoice’s reasonable control that could not be avoided by its exercise of due care including a Force Majeure Event; (f) Any outage, network unavailability or downtime outside SmartChoice’s data center;
(g) New installations prior to acceptance by the customer;
(h) Customer Time, which is defined as delay time resulting from:
- Incorrect or incomplete contact information provided by Customer which prevents SmartChoice from completing the trouble diagnosis and service restoration;
- SmartChoice’s technicians being denied access to network components at the Customer location when access is required to complete trouble shooting, repair, diagnosis, or acceptance testing;
- Customer’s failure or refusal to release the circuit for testing; and/or
- Customer being unavailable when called to close a trouble ticket or verify service restoration;
(i) Availability pertains to the entire SmartChoice voice and data network, issues with individual lines or individual features do not constitute a lack of network availability.
If after the Service Commencement Date SmartChoice fails to perform services according to this SLA, Customer shall be entitled to outage credit as stated below:
(a) First full outage in three-month period: credit of 1 hour of Monthly Recurring Change (MRC) for the effected service and effected location only per each hour when service was unavailable (hours rounded up);
(b) Second full outage in three-month period: credit of 2 hours of MRC for the effected service and effected location only per each hour when service was unavailable (hours rounded up);
(c) Third full outage in three-month period: credit of 3 hours of MRC for the effected service and effected location only per each hour when service was unavailable (hours rounded up.)
To receive a credit, customer must submit their request, in writing, within 30 business days after the month in which the SLA standard was not met. Customer must fill out the SmartChoice Credit Request Form and submit it to the SmartChoice’s Customer Care Team at firstname.lastname@example.org. Once the request is verified as valid, credit amounts will be determined as shown in the relevant SLA section(s). Credits will apply only to the MRC base rate charged during the month of the SLA violation, and no single month’s total SLA credits may exceed that month SmartChoice’s service charges. The credit will be posted on the customer’s bill within two months of determination that the SLA credit is valid. SmartChoice shall not be deemed in default of the any signed Master Service Agreement (“MSA”) if SLA guarantees are not fully met. Customer shall reasonably provide SmartChoice the right to cure faulty service and the opportunity to replace defective service with new facilities.