These Un1teee Terms of Service (the “TOS”) are incorporated into, and constitute an essential part of, the Service Agreement(s) between you (the “Client”) and Un1teee (“UN1”), a California corporation with principal place of business located at 3625 E. Thousand Oaks Blvd, Ste 129, Westlake Village, CA 91362. By signing the Master Service Agreement (“MSA”) or using the Service (as hereafter defined), Client consents to these TOS. As used in these TOS, the term “MSA” means each mutually agreed to Service Agreement (“SA”), Service Order Confirmation (“SOC”) and/or Technical Quote (“TQ”) and these terms are used interchangeably. Each of which describes the service(s) to be provided by UN1 to Client pursuant to that Service Agreement (the “Service” or “Services”); the term “Effective Date” means the date of the first Service Agreement signed by Client; the term “Term” means the stated Service Term for a Service under any Service Agreement; and the term “Agreement” includes collectively these Terms of Service and each Service Agreement executed hereunder. UN1 and Client shall individually be referred to as a “Party” and collectively as the “Parties”.
By enrolling in, activating, using, or paying for the Services, Client agrees to these TOS, including but not limited to the prices, charges, and terms and conditions provided to Client in the marketing and informational materials associated with the Services and on the UN1 website, all of which are incorporated herein by reference. If Client does not agree to all of the aforementioned terms and conditions, Client should not use the Services, and should cancel the Services immediately by calling UN1 at 1-805-835-4352 for further directions.
Client agrees to pay all monthly recurring charges (“MRC”), installation charges, set-up charges, usage-based charges, one-time charges, rental fees and other fees (collectively, “Service Fees”) for UN1 services. All appropriate sales, excise and other taxes and surcharges required by law, state and federal regulations will also apply.
- 1 Service Activation Charges: UN1 will bill Client for all estimated installation charges, set-up charges and the first full calendar month’s monthly service charges (the “Activation Charges”) as indicated on any Service Agreement upon UN1’s execution of such Service Agreement.
- 2 Monthly Invoices: UN1 will begin to charge the monthly service charges on the date on which UN1 completes delivery of the services or on the date on which Client first uses the service, if earlier. In the event the client delays the ability of UN1 to provide the service(s), UN1 shall begin charging for said service(s) on the date on which UN1 was able to deliver the service(s). An invoice shall be deemed correct and payable in full unless disputed in writing by Client within thirty (30) days after receiving said monthly invoice. In case of a dispute, Client must pay the undisputed portion by the invoice’s due date to avoid a late payment fee on that amount. The due date for any disputed amount that is determined to be correct will be seven (7) days after UN1 notifies Client that the dispute as to that amount has been resolved.
- 3 Taxes and Surcharges: Client shall pay, and UN1 reserves the right to collect in arrears, all sales, use, excise or other taxes, fees or charges (including without limitation any and all federal or state Universal Service Fund charges) of any nature whatsoever, now or hereafter imposed or assessed on UN1, by any federal, state, county or local government authority upon or with respect to the Services provided. If Client claims exemption from charges, before utilizing services, Client must provide UN1 with a current, valid exemption certificate from the applicable regulatory authority. In such cases Client remains responsible for, and agrees to pay, any and all remaining non-exempt charges; tax exemption status validation is solely the responsibility of the Client and UN1 will not be obligated to consider or honor any retroactive tax exemption. UN1 may, in Un1 sole and absolute discretion, request advance payment, in whole or in part, from Client or change Un1 payment terms at any time. UN1 may cancel or re-schedule orders if UN1 determines, in Un1 sole and absolute discretion, that Client’s financial condition or previous payment record so warrants such change. All payments required by the Agreement are exclusive of applicable taxes and shipping charges. Invoices shall include all applicable federal, state and local taxes, assessments and regulatory charges of any kind. All such taxes, assessments and charges, including but not limited to all sales, use, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees and surcharges, shall be payable by Client. If necessary or required by law, UN1 will charge all applicable prospective and retroactive taxes required by the appropriate governmental agency. Notwithstanding the foregoing, in the event of any regulatory or governmental changes (“Regulatory Activity”), UN1 reserves the right, at any time and without liability, to: (i) pass through to Client all, or a portion of, any changes or surcharges directly or indirectly related to such Regulatory Activity; (ii) modify the Service, rates (including any rate guarantees), promotions, terms and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Activity materially and adversely impairs the provision of any or all Services under the Agreement, as reasonably determined by UN1, terminate the Agreement and/or any affected Service. Any contest of 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 UN1 as necessary (potentially to a retroactive tax basis period) to accurately and properly collect taxes does not relieve Client of Un1’s responsibility to pay fully and timely. In no case shall Client be responsible for any income taxes levied upon UN1’s (or any underlying provider’s) net income. Client agrees that Un1’s obligation to pay taxes and surcharges under this Section shall survive the expiration or early termination of the Agreement.
UN1 shall bill Clients for services as stated in the applicable TQ or SOC. All fees and other charges will be due in U.S. dollars, upon Client’s receipt of UN1’ invoice. Late fees will be assessed if an invoice is not paid by the 1st of the following month. The Client’s Authorized Agent/Owner/Officer listed on the Master Service Agreement and/or signing on behalf of Client are personally liable and hereby agrees and guarantees that all amounts will be paid per the terms defined in this agreement. After such period, Client will be charged a LATE FEE of $25.00 and a FINANCE CHARGE on all delinquent amounts owed to UN1. The FINANCE CHARGE is computed by applying the monthly periodic rate (as hereinafter defined) to all outstanding delinquent balances. The monthly PERIODIC RATE is equal to one and one-half percent (1.5%), which is equivalent to an ANNUAL PERCENTAGE RATE of eighteen percent (18%). Client understands that UN1 shall begin to requisition all equipment and begin to facilitate the provision of said services upon the Effective Date of the applicable Master Service Agreement and relies upon the execution of said Master Service Agreement for those purposes. Therefore, the initial payment is, under any circumstances, non-refundable to Client unless UN1 is unable or unwilling to provide the Services ordered in conjunction with this agreement. If UN1 receives notice that Client has filed for bankruptcy full payment of all outstanding invoices are due within seven (7) days and additional deposits to Un1 may be required as determined by UN1.
- 1 Billing Disputes: In the event Client wishes to dispute any invoiced charges, Client must provide written notice of such dispute within thirty (30) days of Un1 receipt of such invoice, otherwise invoice is considered accepted. Such notification must include the Client’s contact information, the specific dollar amount in dispute, detailed supporting reasons for the dispute, and any supporting documentation if available. Amounts charged for Services which are reasonably disputed by Client (along with late fees attributable to such amounts shall apply), but Client may withhold the disputed amount for a period of thirty (30) calendar days following the due date set forth in the invoice, provided Client: (i) pays all undisputed charges on or before the invoice due date, (ii) presents a written statement of any billing discrepancies to UN1 in reasonable detail together with appropriate supporting documentation on or before the invoice due date of the invoice in question, and (iii) negotiates in good faith with UN1 for the purpose of resolving such dispute within said thirty (30) calendar day period. In the event such dispute is mutually agreed upon and resolved in favor of UN1, Client agrees to pay UN1 the disputed amounts together with any applicable late fees within seven (7) days of resolution. In the event such dispute is mutually agreed upon and resolved in favor of Client, Client will receive a credit for the disputed charges and no late fees shall apply. In the event UN1 has responded to Client’s dispute in writing and the Parties fail to mutually resolve or settle the dispute within such thirty (30) calendar day period (unless UN1 has agreed in writing to extend such period), all disputed amounts together with the late fees shall become due and payable on the thirtieth (30th) day, and this provision shall not be construed to prevent the Parties from pursuing any legal remedies. Any invoice charges not disputed in this manner shall be deemed accepted by and binding upon Client. UN1 reserves the right to deny any and all billing disputes and/or delay credUn1 if Client’s account is in arrears or otherwise not in good standing. In the event of a service interruption, a dispute will be considered at a prorated rate. The proration is determined by taking the actual days of interruption divided by a thirty (30) day month. This proration is then multiplied by the monthly charge to determine the credit amount.
- 2 Failure to Make a Payment: If within Un1’s sole discretion UN1 determines that Client lacks financial resources to timely make payments on invoices rendered by UN1, UN1 may, upon written notice to Client, modify the payment terms set forth in the TOS so as to provide that Client pay for all Service Fees and other known or anticipated charges in advance. If, at any point after the invoice due date, Client has failed to pay any sums due and outstanding, then UN1 may give Client written notification that Client has committed a material breach of these TOS due to non-payment. Said notification will be provided five (5) days prior to Service suspension or termination. Client must pay all outstanding charges, within said notice period, to avoid suspension or termination of Service. In Un1 sole discretion, UN1 may: (i) change payment terms, billing cycle, and/or payment due date; (ii) demand immediate payment by wire or other means and discontinue Service(s) without notice should UN1 determine Client’s Services exceed their approved level of credit; or (iii) immediately block Client’s Service(s) if Client refuses to make any requested payments. Charges for returned, stopped payment and/or non-sufficient funds via check or direct deposit payment will be assessed a returned check fee of $30.00 per returned check. The foregoing charges shall be deemed service charges and not the only remedies for breach of these TOS. Additional remedies for breach of these TOS by Client are applicable.
- 3 Service Interruptions: UN1’s sole liability under this Agreement for interruption of service or failure of equipment shall be limited to that amount of UN1’s actual fixed charges incurred by Client during the period of such interruption. UN1 shall not be liable for any interruption caused by the negligence or willful act or omission of Client or any third party furnishing any portion of the service hereunder.
- 4 Credit Review and Security Deposit: UN1 reserves the right to withhold initiation of full implementation of Services under the TOS pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by UN1 including, but not limited to, security for payments due hereunder in the form of a cash deposit via wire transfer, guarantee, irrevocable letter of credit from a financial institution, or other forms of security acceptable to UN1, in Un1’s sole discretion. Upon request by UN1 at any time, Client agrees to provide financial statements or other indications of financial circumstances. As may be determined by UN1, in Un1 sole discretion at any time, if the financial circumstances or payment history of Client is, or becomes unacceptable, UN1 may require a new or increased deposit, guarantee or irrevocable letter of credit at UN1’ discretion, to secure Client’s payments for the remainder of the Term and such deposit, guarantee or irrevocable letter of credit shall be provided within five (5) days of written request. Failure of Client to provide the requested security pursuant to these TOS shall constitute a breach of these TOS and UN1 may suspend or terminate Services until such time as the required security is received.
If Client requests that Service be restored after a suspension or termination due to non-payment, UN1 has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as UN1 determines, in Un1 sole discretion, to be necessary for Un1 protection, including requiring Client to pay a reconnection fee for each Service location being reinstated, requiring Client to execute a new Master Service Agreement, pay all past due invoices in full, pay a new installation fee, pay Early Termination Penalties, pass UN1’s credit approval and/or make advance payments. Any such monies required for restoration of such Service shall be due and paid before UN1 is required to reinstate Service at the Service location.
- 1 Client shall not enter into any contractual relationship or other legally binding obligation with any third party which shall have the purpose or effect of encumbering the use, sale or other commercialization by UN1 of the Services. All use by Client of the Services shall strictly comply with such usage guidelines as UN1 may specify from time to time. Client shall ensure that Un1 use of the Services complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties, the Services and/or the UN1 brand. Client acknowledges that UN1 has no control over the content of information transmitted by Client through the Services (whether visual, written or audible) and that UN1 does not examine Client’s use of the Services or the nature of the information. UN1 reserves the right to terminate the Service if Client uses the Services in violation of any such law.
- 2 Connectivity: Client acknowledges that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to Client’s computer systems, networks, and any and all information stored therein. ALL INFORMATION TRANSMITTED AND RECEIVED THROUGH THE INTERNET CANNOT BE EXPECTED TO REMAIN CONFIDENTIAL AND UN1 CANNOT AND WILL NOT WARRANT THE PRIVACY, SECURITY, AUTHENTICITY, AND NON-CORRUPTION OF ANY INFORMATION SO TRANSMITTED, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. UN1 SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES WHATSOEVER OF CLIENT’S CONNECTION TO OR USE OF THE INTERNET, AND UN1 SHALL NOT BE RESPONSIBLE FOR ANY USE BY CLIENT OF CLIENT’S INTERNET CONNECTION IN VIOLATION OF ANY LAW, RULE, OR REGULATION OR ANY VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANOTHER. Client shall not use the Service or any portion thereof in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior.
- 3 Theft of Service: Client shall notify UN1 immediately, in writing or by calling our customer service line, if any device is stolen or if you become aware at any time that Client’s Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write to us you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of the Services. Failure to do so in a timely manner may result in our termination of your Service for breach and additional charges to you. Until such time as UN1 receives notice of the theft, fraudulent use or unauthorized use, Client will be liable for all use of the Service using a device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service. Once UN1 receives notification of fraudulent use from the Client, UN1 will maintain a block on Client’s outgoing calls until the Client notifies UN1 that their network has been secured from further fraudulent use. Since Voice over Internet Protocol (“VoIP”) utilizes the Client’s internal network to make calls through the Internet, it is the Client’s responsibility to ensure their network is secure. UN1 is not responsible for fraudulent use resulting from breach in the Client’s network.
The Client may incur additional charges from any alternate carrier company that is outside the scope of services provided by UN1 in the TQ. If UN1 is billed by an alternate carrier for services on behalf of Client, UN1 shall pass through those charges with applicable handling fees. UN1 is not responsible for any contracts or fees that Client may have with any other carrier or service provider.
The initial Service Term of this Agreement (“Initial Term”) will begin the date we provide notice to you that the Services are available for your use. This Agreement will continue in effect for the entire Term specified on the TQ or SOC and respect to said Services furnished under such Agreements the Service Term shall automatically renew for consecutive additional periods of one (1) year (each, a “Renewal Service Term”) unless terminated by either Party in writing at least thirty (30) days prior to the expiration of the Service Term or the Renewal Service Term then in effect (as applicable). The Service Term and any applicable Renewal Service Term(s) shall hereafter be referred to collectively as the “Service Term”. If no Term is specified in the applicable Agreements, then either Party may terminate the Service(s) furnished under such Agreements by giving the other Party sixty (60) days prior written notice to such effect. If Services or a Service location is added the Service Term will be extended to the later of (a) the expiration date of the current Service Term or (b) the date specified in the Technical Quote or Service Order Confirmation.
As specified in Section 2.0, all invoices rendered by UN1 shall be due upon receipt. If any payment required to be made by Client is not be made within thirty (30) days after the due date (or by such other time as the relevant Service Agreement may provide), UN1 may disconnect or disable all Service to Client. In any such event, UN1 shall have the right, within Un1’s sole discretion, (a) to decide whether or not to reconnect or re-enable the Service upon Client’s payment of all past due amounts (including, without limitation, any interest that may be payable) and in the event that UN1 shall agree to reconnect or re-enable the Service, to require the payment of a reconnection fee for so doing, or (b) to terminate the Agreement.
- 1 Bankruptcy: UN1 may suspend or terminate any or all Services to Client and terminate all Service Agreements between Client and UN1 immediately and without written notice to Client if Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors or becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such involuntary petition or proceeding is not dismissed within sixty (60) days of filing.
- 2 For Cause: UN1 may terminate the Agreement in the event of a breach by Client of any term, provision or condition of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. In the event of any such termination by UN1, UN1 will disconnect or disable all Service to Client (including, without limitation, as furnished under all Service Agreements between UN1 and Client).
Disconnection of services – the disconnection process shall begin once the Disconnect Request Confirmation has been signed by the Client and UN1 has confirmed receipt. Services will continue and will be billed until UN1 and any underlying carriers complete the disconnection process, or 30 days, whichever is later. It is recommended the Client ensures their replacement services are operational before requesting disconnection, as UN1 is not responsible for any interruption or failure of service once disconnection has been requested by Client.
Clients terminating this agreement or any portion of their service at any time prior to the end of the Service Term will pay an Early Termination Fee (“ETF”). The ETF will include all Monthly Recurring Charges (“MRC”) calculated at one hundred percent (100%) multiplied by the remaining months on the contract as well as any install, set up or one-time charges that were originally waived or credited and related to the service. The ETF will be billed upon notification from Client and due upon receipt. Client shall also be subject to ETF’s if Client’s monthly invoice amount falls below seventy-five percent (75%) of Client’s previous six (6) months average invoice amount. Any outstanding monies due and payable to UN1 must be paid in full prior to the release of Client’s Services.
- 1 Client’s Rights to Use: Client has the right to use Digital and Analog lines, IP Addresses and Circuits when in compliance of active MSA and related Service Term. In the event of default (see Section 2 above) or termination (see Section 7 above), Client forfeits their right to use any and all Services. UN1 may reassign Services at Un1 sole discretion. If services are disconnected due to non-payment, Client loses all rights to use Phone Numbers, IP Addresses and Circuits. In addition, once disconnected, Phone Numbers, IP Addresses and Circuits may no longer be available for reconnection or continued right to use. No guarantee can be made as to Client’s ability to regain the right to use these same Phone Numbers, IP Addresses and/or Circuits. UN1 is not responsible for Client’s loss of Phone Numbers, IP Addresses and/or Circuits upon termination. All charges for service and calls billed are the sole responsibility of the Client.
- 2 Number Transfer on Service Termination: For those Services that require this function, Local Number Portability (LNP) refers to the order from the Federal Communications Commission (FCC) requiring all telecom providers to allow customers to retain their phone numbers when changing service providers, as long as the customer stays within the same local calling zone. Instead of disconnecting service numbers, you may choose to port your number(s) “out” to another carrier. You initiate this by contacting a new service provider to initiate a port-in. The new service provider will then contact UN1 with a port-out request. We will follow industry-sanctioned procedures to fulfill the port-out request if: (a) such new service provider is able to accept such number; and (b) your account is completely current, including payment for all charges and applicable ETF’s. IP Addresses and Circuits are not portable. UN1 is not responsible for Client’s loss of Phone Numbers, IP Addresses and/or Circuits due to non-payment. All charges for service and calls billed are the sole responsibility of the Client.
Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, 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”). Confidential Information shall not include information that: (a) is, as of the time of Un1 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 Un1 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. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than Un1 employees who have a need to know in connection with this Agreement. Each Party shall notify Un1 employees of their confidentiality obligations with respect to the Confidential Information and shall require Un1 employees to comply with these obligations. The confidentiality obligations of each Party and Un1 employees shall survive the expiration or termination of this Agreement. Client agrees that if it is required by law to disclose the Confidential Information, Client shall first give written notice of such required disclosure to UN1 and UN1 shall have a reasonable opportunity to prevent or limit the third-party disclosure. Client acknowledges that monetary damages may not be sufficient remedy for unauthorized disclosure or use of Confidential Information and that UN1 may seek without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The obligations under this Agreement shall: (a) with regard to any trade secrets of UN1, remain in effect as long as the information constitutes a trade secret under applicable law; and (b) with regard to the Confidential Information, remain in effect during the term of this Agreement and for a period of five (5) years thereafter. Neither Party shall disclose to any third party the terms and conditions of this Agreement without the prior written consent of the other Party.
- 1 No Warranty: CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, AND CLIENT’S USE OF THE SERVICE IS AT CLIENT’S SOLE RISK. UN1 MAKES NO, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICE(S), EQUIPMENT AND/OR NETWORK PROVIDED BY UN1, PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF TITLE, AND ANY WARRANTY ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE. UN1 DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SERVICE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. UN1 EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY DATA OR CONTENT TRANSMITTED WITH THE USE OF THE SERVICE. CLIENT ACKNOWLEDGES AND AGREES THAT UN1 DOES NOT OWN THE UNDERLYING TELECOMMUNICATIONS CIRCUIT, FACILITIES OR EQUIPMENT UTILIZED TO PROVIDE THE SERVICES AND IS ONLY RESPONSIBLE FOR THE PERFORMANCE OR NON-PERFORMANCE THEREOF TO THE EXTENT OUTLINED IN UN1’ SLA. CLIENT HEREBY EXPRESSLY ASSUMES THE RISK OF UN1 USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE.
UN1 DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. UN1 WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. THIS LIMITATION OF LIABILITY APPLIES BOTH TO PRODUCTS AND SERVICES AND SUPPORT CUSTOMER PURCHASES UNDER THIS AGREEMENT. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES BUNDLED WITH THE PRODUCTS, UN1 IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF PRODUCTS UNDER THIS AGREEMENT. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF SERVICES NOT BUNDLED WITH PRODUCTS UNDER THIS AGREEMENT, UN1 IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF SERVICES UNDER THIS AGREEMENT. CUSTOMER AGREES TO PROVIDE TO UN1, AT NO CHARGE, AN UNLIMITED LICENSE TO USE ANY PATENTS OR INTELLECTUAL PROPERTY THAT ARE UTILIZED IN ANY UN1 PRODUCTS. UN1 DOES NOT WARRANT THAT THE PRODUCTS OR ANY NETWORKS OR SYSTEMS PROTECTED BY THE PRODUCT WILL BE FREE FROM VULNERABILITY, INTRUSION, ATTACK, OR OTHER DAMAGE.
- 1 UN1’s Indemnification of Client: UN1 shall indemnify, defend and hold harmless Client and Client’s directors, officers, shareholders, members, employees and agents, and their respective heirs, successors and assigns, from and against any and all claims, actions, demands, damages, costs, losses, liabilities and expenses arising from damage to tangible personal property located at, or from injury to or the death of any person occurring at, Client’s premises that result from any negligent or willful acts or omissions of UN1 or of any agent, employee or contractor of UN1 that occur in the course of the performance of any Service installation or maintenance work at the Client’s premises, such indemnity and hold harmless to include, without limitation, the obligation to provide all costs of defense (including, without limitation, reasonable attorneys’ fees and expenses).
- 2 Client’s Indemnification of UN1: Client shall indemnify, defend and hold harmless UN1 and UN1’s directors, officers, shareholders, members, employees and agents, and their respective heirs, successors and assigns, from and against any and all claims, actions, demands, damages, costs, losses, liabilities and expenses (“Claims”) arising from (a) any harm to any person occurring at Client’s premises and resulting from any negligent or willful acts or omissions of Client, of any agent, employee or contractor of Client or of any licensee or invitee of Client, (b) any breach of any representation, warranty, covenant or agreement of Client in the Agreement or (c) any use of the Service, UN1’s network or any third party network in violation of applicable law or the Rules of Use (the Claims to include, in the case of clause (b) and/or clause (c) of this sentence and without limitation, any Claims arising under the Digital Millennium Copyright Act or arising as a result of any infringement or misappropriation of any intellectual property rights). The indemnification obligation set forth in this Section shall include the obligation to pay all costs of defense (including, without limitation, reasonable attorneys’ fees and expenses). Nothing in this Section shall be deemed to reduce the scope of or otherwise limit any other indemnification by Client provided for in these TOS.
- 3 Notification: Client will provide UN1 with written notice of each instance of which Client becomes aware that could reasonably be expected to give rise to claim for indemnification under Section 13.1 above; provided, however, that no failure on the part of Client to give any such notice shall relieve UN1 of any of Un1 obligations under Section 13.1 above unless, and then only to the extent that, such failure to give notice shall impair UN1’s ability to successfully defend the matter in question. UN1 may elect to control the defense of any matter in respect of which Client claims indemnity. UN1 will provide Client with written notice of each instance of which UN1 becomes aware that could reasonably be expected to give rise to claim for indemnification under Section 13.2 above; provided, however, that no failure on the part of UN1 to give any such notice shall relieve Client of any of Un1 obligations under Section 13.2 above unless, and then only to the extent that, such failure to give notice shall impair Client’s ability to successfully defend the matter in question. Client may elect to control the defense of any matter in respect of which UN1 claims indemnity.
- 1 Return Policy: All returns must be requested within 30 days from the Installation Date or Invoice Date, whichever is sooner.
- 2 Defective Merchandise: If any product purchased is defective or damaged UN1 will replace that product free of charge. UN1 will pay for the shipping back to our location. To return a defective/damaged product, contact UN1 at (805) 835-4352. Client will be issued a return approval and will need to return equipment within seven (7) days of receiving approval. Equipment must be shipped back via FedEx or another service that allows for tracking. As soon as UN1 receives the request for replacement of a defective/damaged unit, UN1 will immediately ship out a replacement product (provided it is stock). If the product you are returning is not in stock, UN1 will backorder it and Client will be notified of the estimated ship date. If UN1 does not receive the defective/damaged equipment back within 14 days of the initial request UN1 will bill your account for the replacement equipment.
- 3 Merchandise Returned for Refund: If within 30 days, any product ordered does not meet Client’s requirements and is unused (re-sellable), UN1 will refund the product price less a 25% restocking charge (25% is based on UN1 list price, not necessarily the price paid). Unused (Re-sellable) condition definition: Equipment is considered unused (re-sellable) when it is returned in Un1 original box, with all manuals and accessories. The equipment, manuals, and box must be unmarked and not show any signs of wear or damage. If within 30 days, any products Client purchased does not meet Client’s requirements but does not meet the definition above of Unused (re-sellable) condition, UN1 will refund the product price less a 25% restocking charge (25% is based on UN1 list price, not the necessarily the price paid). For both used and unused (re-sellable) equipment returns, Client is required to pay for the shipping back to UN1. To return the product, contact UN1 at (805) 835-4352. Client will be issued a return approval and be given shipping instructions. Once equipment is received and inspected to determine the condition of the equipment (used or un-used) UN1 will credit your account the amount paid less the restocking charge depending on the condition of the equipment returned.
- 4 Limitation of Liability – Equipment: EXCEPT AS EXPRESSLY SET FORTH HEREIN WITH RESPECT TO THE PRODUCTS SOLD BY UN1, NO WARRANTIES APPLY (and UN1 specifically disclaims all warranties), WHETHER EXPRESS, IMPLIED OR ARISING BY OPERATION OF LAW (INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). IN NO EVENT, WHETHER DUE TO BREACH OF WARRANTY HEREUNDER OR ANY OTHER CAUSE WHATSOEVER, SHALL UN1 BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, COST OF SUBSTITUTE PRODUCTS AND PERSONAL INJURY OR PROPERTY DAMAGE, WHETHER SUCH CLAIM IS BASED ON CONTRACT OR TORT OR ANY OTHER THEORY OF LAW. UN1’s only duties in connection with the sale of the Products shall be to honor the limited warranty for the Products as defined by the Product’s original equipment manufacturer as set forth herein. To the extent assignable, any manufacturer warranty for Products shall be assigned by UN1 and passed through to the Client. UN1’s sole liability, if any, for loss or damage arising out of mistakes, omissions, interruptions, errors or any other causes relating to the services, INCLUDING THE NEGLIGENCE OF UN1, shall be limited to the credit for service interruption for each separate period of interruption. EXCEPT FOR THE FOREGOING, CLIENT WAIVES ANY RIGHT OF RECOVERY AGAINST UN1 FOR ANY CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LOSSES, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES OR COSTS) (“CLAIMS”) BY OR DUE TO THIRD PARTIES AND SUFFERED BY CLIENT, DIRECTLY OR INDIRECTLY RELATING TO OR ARISING FROM THE NEGLIGENCE OF UN1 OR THE MANUFACTURE, DISTRIBUTION, SALE, USE OR INSTALLATION OF ANY PRODUCT OR THE PROVISION OF THE SERVICES. CLIENT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS UN1 AGAINST ANY AND ALL CLAIMS BY THIRD PARTIES RELATED TO OR ARISING FROM THE SALE OF THE PRODUCTS OR PROVISION OF THE SERVICES DESCRIBED HEREIN. The provisions of this section shall survive termination of services.
- 1 Use of the Equipment: Client agrees that the Equipment Rental/Maintenance Agreement shall not grant Client any property rights in the Equipment. Specific Equipment details (make, model, serial number) will be provided to Client on the Order Confirmation. Client shall use the Equipment in the intended manner by the manufacturer thereof. UN1 shall be entitled to inspect the Equipment at any time and will provide reasonable notice to Client of UN1’s intent. UN1 may require markings to be affixed to the Equipment. Client shall keep the Equipment free from any markings or labeling, which might be interpreted as a claim of ownership thereof by Client. Without the prior written consent of UN1, Client shall not assign, lend, pledge, transfer, or sublease the Equipment, permit to exist any security interest, lien or encumbrance with respect to any of the Equipment; or cause or permit any of the Equipment to be moved from the location specified in the Agreement. Client shall bear the risk of any loss, theft, damage or destruction to the Equipment during the Term. Client agrees, at Un1 sole expense, to provide the proper environment and electrical and telecommunications connections for the Equipment. Client is solely responsible for correcting any hazardous conditions that may adversely affect UN1 personnel or the Equipment. Client shall obtain and maintain at Un1 own expense insurance against the loss of or damage to such Equipment, including, without limitation, loss by fire or other casualty.
- 2 Maintenance Services –UN1 shall provide routine diagnostic and maintenance services on the Equipment, as follows:
- In the event that Client is experiencing a problem with the Equipment, Client will be required to call UN1 and open a trouble ticket. UN1 shall respond to Client’s request via telephone or email within four (4) business hours. Client will provide the location where the Equipment is housed to enable UN1 to remote access.
- UN1 shall use all commercially reasonable efforts to identify and correct the problem with the Equipment. If the Equipment cannot be fixed and none of the exclusions in Section (e) below apply, UN1 shall, at their sole discretion, replace the defective Equipment with either new or reconditioned Equipment.
- UN1 WARRANTS THAT THE SERVICES TO BE PROVIDED UNDER THIS AREEMENT WILL BE PERFORMED IN A TIMELY AND WORKMANLIKE MANNER, USING ONLY QUALIFIED TECHNICIANS FAMILIAR WITH THE EQUIPMENT AND UN1 OPERATION. UN1 MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE MATERIALS OR SERVICES CONTEMPLATED HEREUNDER. UN1 MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT.
- Maintenance services may be provided by an UN1 affiliate or subcontractor.
- If persons other than those employed or contracted by UN1 shall repair, modify or perform any maintenance service on any Equipment, or if Client fails to maintain the Equipment in accordance with the manufacturer’s requirements, and as a result of either of the foregoing, further maintenance services by UN1 are required to restore the Equipment to good operating condition or the Equipment needs to be replaced, such further maintenance services or replacement Equipment charges shall be billed to Client at UN1’s then current time and materials rate. Note: Equipment must be in operation at the same location as the service address for network services, or Client must notify UN1 in the event that Client relocates the Equipment to another facility. UN1 shall use reasonable efforts to provide the maintenance services at the new location, but has the right to terminate this Agreement without liability if the Equipment is relocated to a facility outside of the UN1 servicing area.
- 1 Force Majeure: UN1 shall not be liable to Client for any loss, cost, or damages for any inadequacy, stoppage, interruption or discontinuance of service to Client, or any failure by UN1 to perform in accordance with the terms of this Agreement, caused by factors beyond the reasonable control of UN1, which includes, without limitation, failures and defects in telephone lines, cables, junctions or other hardware and equipment, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, insurrections, riots, governmental action, explosions, fire, floods, or earthquakes. Notwithstanding the occurrence of any such event, Client shall continue to pay and remain responsible for UN1 fees and services. However, UN1 may, at is sole discretion, (a) cancel this Agreement; or (b) modify Un1 service as UN1 deems reasonable or necessary.
- 2 Interpretation: This Agreement, subject to applicable tariffs, contains all terms, covenants, conditions, and agreements between the parties hereto relating to the subject matter of this Agreement and no prior agreement, understanding or representation, either oral or written pertaining to the same, shall be valid or of any force or effect. The language in all parts of this Agreement shall be construed according to Un1 fair meaning and not strictly for or against any of the parties hereto, irrespective of who wrote the same.
- 3 Attorneys Fees: If any legal action arises under or with respect to this Agreement, the prevailing party shall be entitled to recover from the non- prevailing party all costs and expenses, including attorney’s fees, incurred in enforcing this Agreement (including any appeals). UN1 has the right to choose the method of resolution, including mediation and/or arbitration.
- 4 Location of Legal Proceedings: Should a Client terminate this Agreement, such termination shall not affect the liability of the Client’s accounts and amounts then owing from Client. In the event that suit is instituted on this Agreement, the Client agrees to pay all court costs and such additional sums as the court may deem reasonable as attorney’s fees if UN1 is the prevailing party. Otherwise, each party is responsible for their own court costs and respective attorney fees. All legal proceedings will take place in the City of Simi Valley, Ventura County, California.
- 5 Assignment: UN1 may transfer, assign or otherwise encumber this Agreement and Un1 rights and obligations hereunder. Client may not assign Un1 rights or delegate Un1 duties under the Agreement either in whole or in part without the prior written consent of UN1, which consent may be withheld in UN1’s sole discretion, except to a party that acquires all or substantially all of Client’s assets as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. Should Client’s company/business be purchased, acquired, merged with another entity, and the acquiring entity continues to be enrolled in, use or pay for services after any Client ownership changes, Client agrees and accepts liability for all Agreement terms. Furthermore, in the event of an assignment change, both Parties shall accept responsibility for payment of Services and the respective accounting thereof.
- 6 Governing Law: The laws of the State of California shall govern this Agreement without reference to conflicts of law principles. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter covered.
- 7 Notices to Party: Unless otherwise set forth herein, all notices, demands, consents, requests, approvals or other communication which either Party is required or desires to give or make upon or to the other Party (“Notices”) shall be in writing and will be effective when sent, if hand delivered or faxed (with confirmation of receipt); on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation from the service); or on the date received if sent by United States certified or registered mail, return receipt requested. Such Notices will be sent to the addresses or fax number (as appropriate) of the receiving Party indicated on the Service Agreement, or at such other address or to such other fax number as either Party may provide to the other by written notice. Client acknowledges that it is Client’s sole responsibility to supply immediate notice to UN1 if Client changes any of Un1 contact information. If at any time Client’s name or billing information changes from that which is set forth above, Client shall have five (5) days to inform UN1 of such changes in accordance with the Notice provisions set forth in the Agreement.
- 8 Severability: In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of this Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion of this Agreement.
- 9 Compliance with Law: In conjunction with the Agreement, each Party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body. Client shall indemnify, defend and hold UN1 harmless against all taxes, fees, assessments or similar amounts, if any, which may be assessed against Client or UN1 for Client’s use of the Services hereunder. Client shall further indemnify, defend and hold harmless UN1 against all claims or liability due to or arising out of failure of Client to obtain any permit or other consent as may be required from any local government or other regulatory body for use of the Services.
- 10 Binding: This Agreement shall be binding on the Parties hereto and their respective personnel and legal representatives, successors, and permitted assigns.
- 11 Representations: Each Party represents and warrants that (a) it has the full right and authority to enter into this Agreement, (b) it is a business entity duly organized under the laws of Un1 jurisdiction, (c) that there are no actions, suits, or proceedings, pending or threatened against it that would materially impair Un1 performance under this Agreement, (d) it complies with all applicable federal, state and local laws and regulations, rulings and orders of governmental agencies, including but not limited to the Communication Act of 1934 as amended by the Telecommunications Act of 1996, as amended, the Rules and Regulations of the Federal Communications Commission, and state public utility or service commissions, and (e) it has obtained, and will maintain all certifications and other authorizations necessary for Client to use the Services, and for UN1 to provide the Services.
- 12 Relationship of Parties: Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between UN1 and Client; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold Itself out as having, the power or authority to bind or create liability for the other Party by Un1 intentional or negligent act and no claimed act of authority shall have any binding effect.
- 13 No Right to Intellectual Property: The Agreement confers no right to use the name, service marks, trademarks, copyrights, or patents of either Party except as expressly provided herein. Neither Party shall take any action, which would compromise the registered copyrights or service marks of the other.
- 14 No Third Party Beneficiaries: The Agreement is being executed for the sole and exclusive benefit of the Parties hereto and is not for the benefit of any third parties. The execution hereof shall not create any obligations or confer any rights on any person or entity other than the Parties hereto
- 15 Waiver: The delay or failure of a Party to enforce or insist upon compliance with any of the terms or conditions of this Agreement or to exercise any remedy provided herein, the waiver of any term or condition of this Agreement, or the granting of an extension of any time for performance shall not constitute the permanent waiver of any term, condition or remedy of or under this Agreement, and this Agreement and each of Un1 provisions shall remain at all times in full force and effect unless and until modified as provided herein
- 16 Modifications: Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.
- 17 Survival: Any obligations of the Parties relating to confidentiality, limitations on liability and indemnification shall survive termination of this Agreement.
- 18 Headings: All Section headings and captions used in the Agreement are purely for convenience and shall not affect the interpretation of the Agreement.