Web Site Terms and Conditions of Use

Terms

By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.

Use License

Permission is granted to temporarily download one copy of the materials (information or software) on Smart Choice Communications’s web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:

modify or copy the materials;

use the materials for any commercial purpose, or for any public display (commercial or non-commercial);

attempt to decompile or reverse engineer any software contained on Smart Choice Communications’s web site;

remove any copyright or other proprietary notations from the materials; or

transfer the materials to another person or “mirror” the materials on any other server.

This license shall automatically terminate if you violate any of these restrictions and may be terminated by Smart Choice Communications at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.

Disclaimer

The materials on Smart Choice Communications’s web site are provided “as is”. Smart Choice Communications makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Smart Choice Communications does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.

Limitations

In no event shall Smart Choice Communications or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on Smart Choice Communications’s Internet site, even if Smart Choice Communications or a Smart Choice Communications authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.

Revisions and Errata

The materials appearing on Smart Choice Communications’s web site could include technical, typographical, or photographic errors. Smart Choice Communications does not warrant that any of the materials on its web site are accurate, complete, or current. Smart Choice Communications may make changes to the materials contained on its web site at any time without notice. Smart Choice Communications does not, however, make any commitment to update the materials.

Links

Smart Choice Communications has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Smart Choice Communications of the site. Use of any such linked web site is at the user’s own risk.

Site Terms of Use Modifications

Smart Choice Communications may revise these terms of use for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms and Conditions of Use.

Governing Law

Any claim relating to Smart Choice Communications’s web site shall be governed by the laws of the State of New York without regard to its conflict of law provisions.

General Terms and Conditions applicable to Use of a Web Site.

Privacy Policy

Your privacy is very important to us. Accordingly, we have developed this Policy in order for you to understand how we collect, use, communicate and disclose and make use of personal information. The following outlines our privacy policy.

Before or at the time of collecting personal information, we will identify the purposes for which information is being collected.

We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us and for other compatible purposes, unless we obtain the consent of the individual concerned or as required by law.

We will only retain personal information as long as necessary for the fulfillment of those purposes.

We will collect personal information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned.

Personal data should be relevant to the purposes for which it is to be used, and, to the extent necessary for those purposes, should be accurate, complete, and up-to-date.

We will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.

We will make readily available to customers information about our policies and practices relating to the management of personal information.

We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.

SCC Terms and Conditions

This Agreement in its entirety shall consist of the terms and conditions stated below in this MSA, terms and conditions stated in Service Order Agreement (“SOA”), 911 Disclaimer, and any applicable tariffs, which are filed with the appropriate Federal and State regulatory agencies. In consideration of the covenants and conditions contained herein, SCC and Customer agree as follows:

  1. SERVICES. Customer shall buy and SCC shall sell to the Customer services (“Services”) referenced in this agreement as designated on the SOA, and provide Technical support to the end users for the prices as specified in SOA.
  2. TERM. The Initial Service term shall be as set forth on the 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 SOA, the term of this Agreement shall be month-to-month.
  3. TERMINATION. Customer may terminate this Agreement before the Term expiration date only upon sixty (60) days written notice to SCC; however, in such case Customer shall be obligated to pay SCC early termination charges as set forth in Sections 13, 14 of this Agreement.
  4. RENEWAL. Unless Customer notified SCC in writing no less than thirty (30) days before the end of Initial Term, this Agreement shall be automatically renewed to the Initial Term as it was set forth in SOA. SCC 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. SCC reserves the right to make rates adjustments, without notice, based on underlying carrier’s service provider’s price adjustments.
  6. ACCEPTABLE USE POLICY. Customer agrees to be bound by the SCC’s Acceptable Use Policy as it specified on the SCC web site (www.smartchoiceus.com).
  7. RIGHT TO MAKE SERVICE CHANGES. SCC 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 SCC 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 SCC 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. 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 SCC 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 SCC to request information from a reporting agency to enable SCC to assess Customer’s credit history. Such action is not an extension of “credit” to Customer; and SCC may alter any Service or billing arrangements as a result of such report, upon notice to Customer. In addition, Customer acknowledges that SCC may require Customer to submit a deposit, bond, or other financial assurances of payment to SCC if so requested by SCC in its sole discretion.
  9. COMMUNICATION FACILITIES. In the event SCC is required to construct and/or acquire communication facilities in order to provide Service to Customer, Customer acknowledges and agrees that SCC 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 reimburse SCC for all costs SCC incurs in constructing and/or acquiring such communications facilities in addition to any other rights and remedies SCC may have.
  10. SERVICE COMMENCEMENT DATE. SCC 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.” SCC may begin billing the Customer on the Service Commencement Date even if Customer notifies SCC in writing that it is not prepared to utilize the Services or facility. SCC shall not be liable for any direct or consequential 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 SCC’s employees reasonable access to Customer’s premises and facilities to install, test, maintain, repair, retrieve SCC equipment, remove, replace, and service SCC’s equipment that is to be necessary to provide the Services.
  12. NO FEE CANCELLATION. Customer may not cancel this Agreement if there is a delay in installation related to the Services, unless such delay is solely due to SCC’s inability to provide Services and such delay is longer than 90 days (for cuprum based services) and 180 days (for fiber optical based services) beyond the parties agreed Service Commencement Date. However, in no event Customer may cancel this Agreement without various termination fees as stated in Sections
9, 13-14 of this Agreement, if SCC 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 SCC may elect in its sole discretion to pursue one or more of the following courses of action: (1) terminate Customer’s Service, whereupon all nonrecurring and recurring charges for the remainder of the Term 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 SCC may have, including 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 SCC 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
SCC shall not be construed as an exclusive remedy and shall not preclude or waive SCC’s right to pursue any other available remedies. It is agreed that SCC’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. SCC MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT, OR SCC 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, SCC’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.
    1. DIRECT DAMAGES. SCC 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 SCC 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 SCC’S SOLE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROVIDED, HOWEVER, IN NO EVENT SHALL SCC’S LIABILITY FOR DIRECT DAMAGES BE GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO SCC DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED, BUT IN NO EVENT SHALL SUCH DAMAGES EXCEED $3,000.
    2. 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.
    3. SERVICE INTERRUPTIONS. THE TERMS, CONDITIONS, AND PRICING OF THE SERVICE WHERE ONE OR BOTH LOCATIONS TO BE CONNECTED ARE NOT SERVED BY THE SCC’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. SCC 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.
SCC’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 OR
KNOWN TO THE SCC. 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 SCC 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 SCC’s attorney’s fees in the event Customer brings legal action towards SCC.
  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 SCC and Customer and shall be applicable to all services either subsequently or priorly provided by SCC 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 SCC that may be withheld for any reason in the sole discretion of SCC. 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 New York 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.