TDS Hosted PBX VoIP and Avaya/On Premise
PBX Terms of Service

These Terms of Service constitute the agreement (“Agreement”)
TeleData Services, LLC (“we,” “us” or “TeleData Services, LLC.”) and the user
(“you,” “user”, “Customer” or “Subscriber”) of TeleData Services, LLC.’
business services and any related products or services (“Service”). “Avaya”
shall mean Avaya Inc., Avaya Financial, or any of their affiliates,
subsidiaries, or other related entities. “8×8” Shall mean 8×8
Communications Inc., or any of their affiliates, subsidiaries, or other
related entities. “Leasing Entity” shall mean any other third-party entity
from whom Customer shall lease the System not related to or affiliated with
Avaya. “System” shall mean the telecommunications, data infrastructure
and/or audiovisual security system ordered from TDS by Customer. This
Agreement governs both the Service and any devices, such as an IP phone,
switch, router or any other IP connection device (“Device” or “Equipment”),
used in conjunction with the Service. If you purchased Equipment from a dealer,
retail store or other provider other than TeleData Services, LLC, you are a
“Retail Customer” for purposes of this Agreement.

 

BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF
LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND
FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT LISTED BELOW.

 

1. EMERGENCY SERVICES – 911 DIALING

1.1 You understand that 911 Service is only provided by TeleData
Services, LLC. IP Desk Phones. You further understand that 911 Service is not
provided or available on the other TeleData Services, LLC. software
applications and services (including without limitation some softphones)

1.2 Registration of Physical Location Required. For each phone
number that you use for the Service, you must register with TeleData
Services, LLC. the physical location where you will be using the Service
with that phone number. When you move the Device to another location, you must
register your new location. If you do not register your new location, any call
you make using the 911 Dialing feature may be sent to an emergency center near
your old address. You will register your initial location of use when you
subscribe to the Service. Thereafter, you may register a new location by
contacting customer support at support@teledataserve.com or 866-835-5018 Opt.
2.

1.3 Service Outages. (a) Service Outages Due to Power Failure or
Disruption. 911 Dialing does not function in the event of a power failure or
disruption. If there is an interruption in the power supply, the Service, including
911 Dialing, will not function until power is restored. Following a power
failure or disruption, you may need to reset or reconfigure the Device prior to
utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Termination of
Broadband Service or ISP Service. Service outages or suspensions or
terminations of service by your broadband provider or ISP will prevent all
Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your TeleData
Services, LLC. Account. Service outages due to suspension or termination
of your account will prevent all Service, including 911 Dialing, from
functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other
Acts. Your ISP or broadband provider or other third party may intentionally or
inadvertently block the ports over which the Service is provided or otherwise
impede the usage of the Service. In that event, provided that you alert us to
this situation, we will attempt to work with you to resolve the issue. During
the period that the ports are being blocked or your Service is impeded, and
unless and until the blocking or impediment is removed or the blocking or
impediment is otherwise resolved, your Service, including the 911 Dialing
feature, may not function. You acknowledge that TeleData Services,
LLC. is not responsible for the blocking of ports by your ISP or broadband
provider or any other impediment to your usage of the Service, and any loss of
service, including 911 Dialing, that may result. In the event you lose service
as a result of blocking of ports or any other impediment to your usage of the
Service, you will continue to be responsible for payment of the Service charges
unless and until you terminate the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such
outage will prevent all Service, including 911 Dialing, from functioning. Such
outages may occur for a variety of reasons, including, but not limited to,
those reasons described elsewhere in this Agreement.

1.4 Re-Activation Required if You Change Your Number or Add or
Port New Numbers. 911 Dialing does not function if you change your phone number
or if you add or port new phone numbers to your account, unless and until you
successfully register your location of use for each changed, newly added or
newly ported phone number.

1.5 Network Congestion; Reduced Speed for Routing or Answering 911
Dialing Calls. There may be a greater possibility of network congestion and/or
reduced speed in the routing of a 911 Dialing call made utilizing the Service
as compared to traditional 911 dialing over traditional public telephone
networks.

1.6 In some parts of the country where direct routing to PSAPs is
not available for VoIP 911 Service, the Service will route Your call to the
National Emergency Call Center where trained agents will ask for the name,
location, and telephone number of the person calling 911 and will contact the
appropriate PSAP to send help. The call center will not automatically receive
Your address and telephone number. In these situations, public safety response
times may be delayed. As a result, there may be an additional delay before
emergency services arrive.

1.7 Disclaimer of 911 Liability. TeleData Services, LLC. disclaims
all responsibility for the conduct of PSAPs, the National Emergency Call
Center, and all other third parties involved in the provision of emergency
response services. TeleData Services, LLC. does not have any control over
PSAPs, the National Emergency Call Center, or other third parties and is
therefore not responsible for whether they answer 911 calls made using the VoIP
service, how they answer these calls, or how they handle or respond to these
calls. TeleData Services, LLC. relies on third parties to assist it in the
provision of 911 service and disclaims any and all liability for acts or
omissions by third parties in the provision of TeleData Services, LLC.’ 911
service.

1.8 Un-provisioned E-911 Call Charges. When a customer places an un-provisioned 

call to 911, it means that the caller id on the call did not match a phone number with 

an activated E-911 registration. 911 calls with a caller ID matching an unregistered phone

number result in an $150.00 fee assessed by the 911 operators.  

2. SERVICE

2.1 Term. Service is offered on a monthly basis. The term begins
on the date that TeleData Services, LLC. activates your Service and ends
on the day before the anniversary date of your Term. Subsequent terms of this
Agreement automatically renew on a monthly basis unless you give us written
notice of non-renewal at least ten (10) days before the end of the monthly term
in which the notice is given. You are purchasing the Service for full monthly
terms, meaning that if you attempt to terminate Service prior to the end of a
monthly term, you will be responsible for the full month’s charges to the end
of the then-current term, including, without limitation, unbilled charges,
 all of which will immediately become due and payable. You will also be
responsible for the next full month’s charges in the event that you do not
provide the requisite ten-days notice of termination prior to the expiration of
the then-current term. Expiration of the term or termination of Service will
not excuse you from paying all accrued and unpaid charges due under this
Agreement.

2.2 You shall not resell or transfer the Service to another party
without our prior written consent. You are prohibited from using the Service
for auto-dialing, continuous or extensive call forwarding, telemarketing (including,
without limitation, charitable or political solicitation or polling), fax or
voicemail broadcasting or fax or voicemail blasting. We reserve the right to
immediately terminate or modify your Service if we determine, in our sole and
absolute discretion, that you have at any time used the Service for any of the
aforementioned or similar activities.

2.3 Prohibited Uses.
(a) Unlawful. You shall use the Service and the Device only for lawful
purposes. We reserve the right to immediately terminate your Service if, in our
sole and absolute discretion, we determine that you have used the Service or
the Device for an unlawful purpose. In the event of such termination, you will
be responsible for the full month’s charges to the end of the current term,
including, without limitation, unbilled charges, all of which will become
immediately due and payable upon termination of your Service. If we believe
that you have used the Service or the Device for an unlawful purpose, we may
forward the relevant communication and other information, including your
identity, to the appropriate authorities for investigation and prosecution. You
hereby consent to our forwarding of any such communications and information to
these authorities. In addition, TeleData Services, LLC. will provide
information in response to law enforcement requests, subpoenas, court orders,
to protect it’s rights and property and in the case where failure to disclose
the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device in any
way that is threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another’s privacy, or any similar behavior. We reserve
the right to immediately terminate your Service if, in our sole and absolute
discretion, we determine that you have used the Service or the Device in any of
the aforementioned ways. In the event of such termination, you will be
responsible for the full month’s charges to the end of the current term, including,
without limitation, unbilled charges, all of which will become immediately due
and payable upon termination of your Service.

2.4 Use of Service and Device by Customers Outside the United
States. Although we encourage you to use of the Service to place calls to
foreign countries from within the United States, we do not presently offer or
support the Service in any countries other than the United States. If you use
the Service or the Device outside of the United States, you will be solely
responsible for any violations of local laws and regulations resulting from
such use. We reserve the right to terminate your Service immediately if we
determine, in our sole and absolute discretion, that you have used the Service
or the Device outside of the United States.

2.5 Tampering with the Device or Service. You shall not change the
electronic serial number or equipment identifier of the Device or to perform a
factory reset of the Device without our prior written consent. We reserve the
right to terminate your Service if we believe, in our sole and absolute
discretion, that you have tampered with the Device. In the event of such
termination, you will remain responsible for the full month’s charges to the
end of the current term, including, without limitation, unbilled charges, plus
a termination fee, if applicable, all of which will immediately become due and
payable. You shall not attempt to hack or otherwise disrupt the Service or make
any use of the Service that is inconsistent with its intended purpose.

2.6 Theft of Service. You shall notify us immediately, in writing
or by calling our customer support line, if the Device is stolen or if you
become aware at any time that your Service is being stolen, fraudulently used
or otherwise being used in an unauthorized manner. When you call or write, you
must provide your account number and a detailed description of the
circumstances of the Device theft, fraudulent use or unauthorized use of
Service. Failure to do so in a timely manner may result in the termination of your
Service and additional charges to you. Until such time as we receive notice of
the theft, fraudulent use or unauthorized use, you 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.

2.7 Ownership and Risk of Loss. You will own the Device and bear
all risk of loss of, theft of, casualty to or damage to the Device, from the
time it is shipped to you until the time (if any) when it is returned to us in
accordance with this Agreement.

2.8 Incompatibility With Other Services.
(a) Security Systems. The Service may not be compatible with security systems.
You may be required to maintain a telephone connection through your local
exchange carrier in order to use any alarm monitoring functions for any
security system installed in your home or business. You are responsible for
contacting the alarm monitoring company to test the compatibility of any alarm
monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the
Service presently may not be compatible with some broadband services . You
further acknowledge that some providers of broadband service may provide modems
that prevent the transmission of communications using the Service. We do not
warrant that the Services will be compatible with all broadband services and
expressly disclaim any express or implied warranties regarding the
compatibility of the Service with any particular broadband service.

3. NUMBER PORTING

3.1 TeleData Services, LLC. will use reasonable efforts to
facilitate number transfers or port requests for You, provided that You comply
with the necessary and specific procedures for porting between service
providers.  You acknowledge and understand that number porting depends on
the cooperation of third parties outside of TeleData Services, LLC.’ control.
Accordingly, You agree that TeleData Services, LLC. will not be liable for the
failure or delay of any third party to cooperate in the porting of any telephone
number, or for the allegedly unauthorized porting of any telephone number by a
third party.

3.2 Porting Numbers into Your TeleData Services, LLC. Account.
TeleData Services, LLC. works with third party carrier(s) who, on TeleData
Services, LLC.’ behalf, port telephone numbers in accordance with applicable
Regulatory Rules and Industry Guidelines. TeleData Services, LLC.’ third-party
carrier(s) require very specific and detailed information and requirements when
completing a port request. Please be informed that You will be required to
provide such detailed and specific information to complete a port request.

3.3 Porting numbers out of Your TeleData Services, LLC. Account.
You will need to follow the procedures of Your new service provider. You understand
that porting Your number out of Your Account does not automatically terminate
Your TeleData Services, LLC. Account.

4. BILLING AND PAYMENT

4.1 Billing. We will bill all charges, applicable taxes and
surcharges monthly in advance (except for usage-based charges, which will be
billed monthly in arrears, and any other charges which we decide to bill in
arrears). Notification of monthly invoices will be sent to you via your email
address on file with us.

4.2 Billing Disputes. You must dispute any charges for the
Services in writing to TeleData Services, LLC. within thirty (30) days of the
date of the invoice by TeleData Services, LLC. If You fail to provide a written
statement explaining in reasonable detail Your reasons for disputing the charge
within such time period, You hereby irrevocably waive any objection and further
recourse with regard to such charges. Written statements disputing charges must
be sent to billing@teledataserve.com.

4.3 Payment and Collection.
(a) Payment. We accept payments by check, credit card, and eCheck according to
the terms of the invoice. We may charge a late fee for any amounts which are
not paid when due. The late fee shall be the lesser of one and one-half percent
(1.5%) per month or the highest rate chargeable by law. We may terminate or
suspend your Service at any time in our sole and absolute discretion in the
case of any non-payment of account charges.
(b) Collection. If your Service is terminated, you will remain fully liable to
us for all charges pursuant to this Agreement and any and all costs we incur to
collect such amounts, including, without limitation, collection costs and
attorney’s fees.

4.4 Taxes. You are responsible for all applicable federal, state,
provincial, municipal, local or other governmental sales, use, excise,
value-added, personal property, public utility or other taxes, fees or charges
now in force or enacted in the future, that arise from or as a result of your
subscription or use or payment for the Service or a Device. Such amounts are in
addition to payment for the Service or Devices. If you are exempt from payment
of such taxes, you must provide us with an original certificate that satisfies
applicable legal requirements attesting to tax-exempt status. Tax exemption
will only apply from and after the date we receive such certificate.

5. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES

5.1 Limitation of Liability. We will not be liable for any delay
or failure to provide the Service, including 911 Dialing, at any time or from
time to time, or any interruption or degradation of voice quality that is
caused by any of the following:

* an act or omission of an underlying carrier, service provider,
vendor or other third party;
* equipment, network or facility failure;
* equipment, network or facility upgrade or modification;
* force majeure events such as (but not limited to) acts of God, acts of
nature, strikes, fire, war, riot, acts of terrorism and government actions;
* equipment, network or facility shortage;
* equipment or facility relocation;
* service, equipment, network or facility failure caused by the loss of power
to you;
* outage of, or blocking of ports by, your ISP or broadband service provider or
other impediment to usage of the Service caused by any third party;
* any act or omission by you or any person using the Service or Device provided
to you; or
* any other cause that is beyond our control, including, without limitation, a
failure of or defect in any Device, the failure of an incoming or outgoing
communication, the inability of communications (including, without limitation,
911 Dialing) to be connected or completed, or forwarded.

Our aggregate liability under this agreement will in no event
exceed the Service charges with respect to the affected time period.

5.2 Disclaimer of Liability for Damages. IN NO EVENT WILL TELEDATA
SERVICES, LLC., ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY
OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE
BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO
PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE
OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR
INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE
PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE
LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT,
BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF
LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY
PARTICULAR TYPE OF DAMAGES.

5.3 Indemnification and Survival.
(a) Indemnification. You shall defend, indemnify, and hold harmless TeleData
Services, LLC., its officers, directors, employees, affiliates and agents and
any other service provider who furnishes services to you in connection with the
Service, from any and all claims, losses, damages, fines, penalties, costs and
expenses (including, without limitation, attorneys fees) by, or on behalf of,
you or any third party or user of the Service, relating to the Services,
including, without limitation, 911 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context
are intended to survive the termination or expiration of this Agreement shall
survive.

5.4 No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET
CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT
THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR,
DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION.
NEITHER TELEDATA SERVICES, LLC. NOR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES
SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL
BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR
PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR
DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION
THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS
OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TELEDATA SERVICES, LLC. OR ITS
SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS
CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TELEDATA SERVICES, LLC. OR
TELEDATA SERVICES, LLC.’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT
GIVEN AS A WARRANTY OF ANY KIND.

5.5 No Third Party Beneficiaries. No provision of this Agreement
provides any person or entity not a party to this Agreement with any remedy,
claim, liability, reimbursement, or cause of action or creates any other third
party beneficiary rights.

5.6 Content. You will be liable for any and all liability that may
arise out of the content transmitted by you or to any person, whether
authorized or unauthorized, using your Service or Device (each such person, a
“User”). You shall assure that your and your User’s use of the Service and
content comply at all times with all applicable laws, regulations and written
and electronic instructions for use. We reserve the right to terminate or
suspend your Services and remove your or your Users’ content from the Service,
if we determine, in our sole and absolute discretion, that such use or content
does not conform with the requirements set forth in this Agreement or
interferes with our ability to provide Services to you or others. Our action or
inaction under this Section will not constitute any review or approval of your
or Users’ use or content.

5.7 Recording Conversations. TeleData Services, LLC. provides
a function that allows a user or Subscriber to record individual telephone
conversations. The laws regarding the notice and notification requirements of
such recorded conversations vary by state to state. Subscriber is solely
responsible for applying the local laws in the relevant jurisdiction when using
this feature.

5.8 Device Warranties.
(a) Limited Warranty. Except as set forth herein, if you received the Device
new from us and the Device included a limited warranty at the time of receipt,
you must refer to the separate limited warranty document provided with the
Device for information on the limitation and disclaimer of certain warranties.
Remedies for breach of any such warranties will be limited to those expressly
set forth in such documentation.
(b) No Warranty. If your Device did not include a limited warranty from us at
the time of receipt, you are accepting the Device “as is”. You are not entitled
to replacement, repair or refund in the event of any defect.
(c) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN
THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED
WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS
OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY
WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE
OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR
WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT
ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION
PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS CUSTOMERS.

 

6. MISCELLANEOUS

6.1 Governing Law. The Agreement and the relationship between you
and us is governed by the laws of the state of New York without regard to
its conflict of law provisions. To the extent court action is initiated to
enforce an arbitration award or for any other reason consistent with Section
6.2, you shall submit to the personal and exclusive jurisdiction of the courts
located within the state of New York and waive any objection as to venue
or inconvenient forum.

6.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim
between you, any member of your household or any guest or employee of you and
us arising out of or relating to the Service or Device will be resolved by
arbitration before a single arbitrator administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules. The
arbitration will take place in  Suffolk county, New York. The arbitrator’s
decision will follow the plain meaning of the relevant documents, and will be
final and binding. Without limiting the foregoing, the parties agree that no
arbitrator has the authority to: (i) award relief in excess of what this
Agreement provides; or (ii) award punitive or exemplary damages. Judgment on
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY
CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED
WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER
BARRED. All claims shall be arbitrated individually. You shall not bring, or
join any class action of any kind in court or in arbitration or seek to
consolidate or bring previously consolidated claims in arbitration. THIS
ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN
AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS
IN, SUFFOLK COUNTY NEW YORK.

6.3 No Waiver of Rights. Our failure to exercise or enforce any
right or provision of this Agreement will not constitute a waiver of such right
or provision.

6.4 Entire Agreement. This Agreement, including any future
modifications as may occur within the terms of the Agreement constitute the
entire agreement between you and TeleData Services, LLC. and govern the
use of the Service by you, members of your business, employees and guests. This
Agreement supersedes any prior agreements between you and TeleData Services,
LLC. and any and all prior or contemporaneous statements, understandings,
writings, commitments, or representations concerning its subject matter.

6.5 Severability. If any part of this Agreement is legally
declared invalid or unenforceable, all other parts of this Agreement will
remain valid and enforceable. Such invalidity or non-enforceability will not
invalidate or render unenforceable any other portion of this Agreement.

7. FUTURE CHANGES TO THIS AGREEMENT

We may change the terms and conditions of this Agreement from time
to time. Notices will be considered given and effective on the date posted on
www.Teledataserve.com. Such changes will become binding on you on the date they
are posted to our website and no further notice by us is required upon your
continued use of the Service. The Agreement as and when posted supersedes all
previously agreed to electronic and written terms of service.

8. PRIVACY

TeleData Services, LLC. Service utilizes, in whole or in
part, the public Internet and third party networks to transmit voice and other
communications. TeleData Services, LLC. is not liable for any lack of
privacy which may be experienced with regard to the Service.

9. CHARGES; PAYMENTS; TAXES; TERMINATION

9.1 Billing. When the service is activated, you must provide us
with a valid email address and a credit or debit card number from a card issuer
that we accept. We reserve the right to stop accepting credit or debit cards
from one or more issuers. If your credit or debit card expires, you close your
account, your billing address changes, or your credit or debit card is canceled
and replaced on account of loss or theft, you must advise us at once. We will
bill all charges, applicable taxes and surcharges monthly in advance (except
for usage-based charges, which will be billed monthly in arrears, and any other
charges which we decide to bill in arrears) to your credit or debit card,
including but not limited to:

 

* activation fees;
* monthly Service fees;
* international usage charges;
* advanced feature charges;
* equipment purchases;
* termination fees; and
* shipping and handling charges.

 

The amount of such fees and charges shall be published on our
website and may change from time to time. Notification of monthly invoices will
be sent to you via your email address on file with us. We reserve the right to
bill at more frequent intervals if the amount you owe to us at any time exceeds
$250. Any usage charges will be billed in increments that are rounded up to the
nearest minute except as otherwise set forth in the rate schedules found on our
website.

9.2 Billing Disputes. You must notify us in writing within
fourteen (14) days after receiving your credit or debit card statement if you
dispute any Teledata Services LLC charges on that statement or you will be
deemed to have waived any right to contest such charges. All notices of
disputed charges should be sent to:

Customer Care Billing Department

 

Teledata Services LLC

270 Spagnoli Road Suite 211

Melville NY 11747

or-

billing@teledataserve.com This e-mail address is being protected
from spambots. You need JavaScript enabled to view it.

 

9.3 Payment and Collection.
(a) Payment. We only accept payment by credit or debit card unless other payment
terms have been explicitly agreed to in writing by Teldata Communication
Concepts Inc DBA Teledata Services LLC. Your subscription to the Service
authorizes us to charge your credit or debit card. This authorization will
remain valid until 30 days after we receive written notice from you terminating
our authority to charge your credit or debit card, whereupon we will charge
your credit or debit card for the termination fee, if applicable, and any other
outstanding charges and terminate you Service. We may terminate your Service at
any time in our sole and absolute discretion if any charge to your credit or
debit card is declined or reversed, your credit or debit card expires and you
have not provided us with a valid replacement credit or debit card or in case
of any other non-payment of account charges.
(b) Collection. If your Service is terminated, you will remain fully liable to
us for all charges pursuant to this Agreement and any and all costs we incur to
collect such amounts, including, without limitation, collection costs and
attorney’s fees.

 

9.4 Termination; Discontinuance of Service. We reserve the right
to suspend or discontinue the Service generally, or to terminate your Service,
at any time in our sole and absolute discretion. If we discontinue the Service
generally, or terminate your Service without a stated reason, you will only be
responsible for charges accrued through the date of termination, including a
pro-rated portion of the final month’s charges. If your Service is terminated
on account of your breach of any provision of this Agreement, you will be
responsible for the full month’s charges to the end of the current term,
including, without limitation, unbilled charges, plus the termination fee, if
applicable, all of which will immediately become due and payable.

 

9.5 Taxes. You are responsible for all applicable federal, state,
provincial, municipal, local or other governmental sales, use, excise,
value-added, personal property, public utility or other taxes, fees or charges
now in force or enacted in the future, that arise from or as a result of your
subscription or use or payment for the Service or a Device. Such amounts are in
addition to payment for the Service or Devices and will be billed to your
credit card as set forth in this Agreement. If you are exempt from payment of
such taxes, you must provide us with an original certificate that satisfies
applicable legal requirements attesting to tax-exempt status. Tax exemption
will only apply from and after the date we receive such certificate.

 

9.6 Termination Fee. If, you terminate your
contract before the activation of service, you will be charged a 30%-40%
restocking fee for all devices supplied by Teledata Services LLC (depending on
the manufacturer and distribution company), $9.99 per phone number, and $9.99
per subscription service/license. We will not refund the activation fee and
first month’s payment if you terminate your contract before or after the
activation of your service. If the contract is terminated before the end of the
contract and after the activation of service, you will be charged the reminder
of the contract. I.e. if your contract is a 60 month term, and you have 24
months remaining, you will be charged the full retail price of your subscription
service/licenses and devices for the remaining 24 months.

9.7 Payphone Charges. If you use our “Toll Free” feature or any
toll free feature that we offer in the future, we will be entitled to recover
from you any charges imposed on us either directly or indirectly in connection
with toll free calls made to your number. We may recover these amounts by means
of a per-call charge, rounded up to the next cent, or in such other fashion as
we deem appropriate for the recovery of these costs.

9.8 Charges for Directory Calls (411). We will charge you $1.50
for each call made to Teledata Services LLC directory assistance.

 

9.9 Charges for Conference Bridge Calls. If the customer does not
purchase a Conference Bridge package. We will charge you per minute for each
caller who calls into your conference bridge. Your Conference Bridge per minute
usage fee will be the lower of (i) 3.9 cents per minute, or (ii) the per minute
Conference Bridge usage fee determined in your Service Activation Form or
online order form. The per minute usage fee will be calculated based on all
participants on the conference bridge, including on-network and off-network
participants.

 

Avaya On Premise PBX and other systems:

 

1.         Orders; Term;
Termination

 

1.         All orders
for the System (“System Orders”) must be placed through this signed Agreement,
including the attached Section A. No System Orders are binding on TDS until an
authorized representative of TDS has signed the Agreement.

2.         The Agreement
is binding on Customer upon signature by TDS. Once the Agreement is binding no
cancellation or modification by Customer will be accepted and the first monthly
installment of any payment thereunder will become due.

3.         All System
Orders placed with TDS imply full and unreserved acceptance by Customer to
these Terms and Conditions, to the exclusion of any other document. Customer
expressly agrees that it waives its own terms of purchase or any other document
originating from Customer or its agents, affiliates, or subsidiaries incidental
to this Agreement.

4.         The term of
this Agreement shall commence on the date Customer signs any applicable
Delivery & Acceptance Acknowledgment with TDS, or upon the Date listed
above, whichever later, and shall continue for the longer of the Lease Term set
forth in Section A or the Maintenance Term set forth in Section B (“Term”).

5.         Upon
expiration of the Maintenance Term, the Services shall automatically renew and
continue to be billed to Customer on a month-to-month basis, during which a
terminating party must provide the other party with thirty (30) days’ written
notice of termination. If Customer wishes the Agreement to terminate at the end
of the Maintenance Term, Customer must provide TDS Notice in writing and sent
via certified mail, return receipt requested. No cancellations will be accepted
either verbally or in writing unless notice is mailed as stated above. You may
provide notice to terminate the Agreement subject to a termination charge equal
to the monthly charges for six (6) months. The customer termination right
applies to the entire agreement.

6.         Notwithstanding
the foregoing, TDS reserves the right to revoke this Agreement for
non-compliance or breach at any time. If a Customer fails to pay any invoice
when due or if Customer defaults, breaches, or repudiates this Agreement or any
other agreement with TDS or if Customer shall become insolvent, then TDS shall
have the right to cancel this Agreement and/or any other agreements with
Customer in which event TDS shall be released from its obligation to deliver or
otherwise perform under the Agreement and Customer shall be liable for any and
all damages to TDS, including attorneys’ fees and expenses.

7.         It is
Customer’s sole responsibility to perform all due diligence required concerning
any past or existing telecommunications, data infrastructure and/or audiovisual
security service, lease, maintenance agreements with Avaya, 8×8, TDS, a Leasing
Entity, or any other third party (“Other Agreements”). TDS shall not be
responsible for such Other Agreements and shall not be responsible for or
assume any obligations thereunder, including cancellation fees, which Customer
may incur under such Other Agreements. 

 

 

 

2.         Price; Fee

 

1.         The Price of the
System (“Price”) will be indicated in Section A attached hereto. The Price
quoted is a base price for the System and does not include any applicable
taxes, insurance, or other costs or fees that may be imposed by Avaya, the
Leasing Entity, or other third parties. The Price does not include any wiring
or cabling that Customer’s site may require prior or post-installation of the
System. The Price of the System is valid for thirty (30) days from the date
hereof. Any discounts, rebates, or other promotions are subject to change. All
Price quotes that include a change to Customer’s telecommunications and/or
audiovisual security service plan or provider are subject to final written
approval by the provider.

2.         The Fee for
Services (“Fee”), if any, shall be set forth in Section B.

The Fee quoted is a base price for the Services and does not
include any other applicable taxes or other costs or fees. The Fee is valid for
the Term of the Agreement. Any discounts, rebates, or other promotions are
subject to change. Any modifications or upgrades to the System, or any new
parts, hardware, or software may be subject to additional costs outside of the
Fee for Services rendered. Expedited Services may be subject to additional
costs.

3. Customer acknowledges and accepts that in certain instances it
may be billed hourly maintenance fees which are not covered under its selected
Maintenance Package (as defined herein) and TDS’s published hourly maintenance
rates are subject to change at any time, at the sole discretion of TDS.
Customer may contact TDS to inquire about its current hourly rates.

 

3.         Payment Terms

 

1.         Payments of the
Price for the System as set forth in Section A will be made to Avaya or the
Leasing Entity, whichever applicable. Any disputes concerning payment or
billing amounts must be pursued solely with Avaya or the Leasing Entity. 

2. Any payments for maintenance Fees as set forth in Section B
will be made to 

TDS. The Fee shall be paid in advance for Services to be rendered
for the month following payment. Customer shall pay the first monthly payment
of maintenance Fees upon signature of this Agreement, and each monthly
installment shall be due within thirty days thereafter. 

3. If Customer fails to pay a monthly installment of the Fee by
the date due, TDS (i) expressly reserves the right to refuse to provide
Services until all Fees due are paid in full, and (ii)expressly reserves the
right to engage a third party in its collection efforts. Customer shall
indemnify TDS for any fees, costs, or other amounts incurred by TDS in its or a
third party’s collection effort, including attorneys’ fees. 

4. Unpaid invoices for the Fee shall become delinquent thirty (30)
days after the invoice date and shall incur a late charge of one and one half
percent (1.5%) per month or the maximum lawful amount, whichever is more.
Customer will also be liable for all costs incurred in the collection of any
past due amount, including any collection agency or attorney’s fees. TDS and
customer agree that should legal action be required by TDS to obtain any monies
from customer that TDS will pursue legal action in The State of New York and
customer must defend claim in The State of New York. Customer agrees that if a
counter-suit is filed by customer against TDS it is filed in The State of New
York. You agree that all billing and invoices shall be sent to the address
provided on the face of this agreement. Customer’s billing address can only be
changed by Customer upon a duly executed writing by Customer requesting a
change of billing address. . If customer is paying by credit card, TDS will
charge the amounts provided herein. The balance(s) shall be automatically
charged at the time of the trigger event. Any and all costs associated with
credit card charges after ordering of/ installation/delivery of equipment
become the full responsibility of the customer. This is inclusive but not
limited to finance charges, charge-back fees, arbitration costs and interest on
late balances. 

5. There will be a 50% to 100% amount due for all equipment or
service that is quoted to the customer outside of any lease quote or original
phone system quote. TDS takes this deposit to order equipment and reserve a
slot in queue for a service call. 

 

4.         Delivery; Shipping

 

1.         Delivery and/or
installation dates or times, if any, are indicated for information purposes, do
not constitute a term of this Agreement, and shall not entitle Customer to
cancel the order, to assess penalty fees or any other form of compensation, or
to refuse to perform under this Agreement.

2.         Should the
Customer require expedited delivery service, Customer shall bear the minimal
additional cost of twenty- five

($2,500) hundred dollars.

3.         Risk of loss
passes to Customer upon TDS delivering the System to the common carrier for
delivery, or upon delivery to Customer by TDS personnel, whichever applicable.

 

5.         Acceptance; Returns.

 

1.         After the
System is delivered to Customer, Customer inspects the System, System is
installed at Customer’s site, and Customer is trained on use of System,
Customer shall sign a Delivery & Acceptance Acknowledgment, upon which date
the System shall be considered accepted by Customer (“Acceptance Date”).

2.         All claims
made by Customer for any defects, non-conformity, loss, damage, errors, late or
non-delivery of Systems sold by TDS under the Agreement shall be made in
writing and delivered to TDS within fourteen (14) days of the Acceptance Date.

3.         Such written
notice of claim shall specify all claimed defects, non- conformities, losses,
damages, errors or shortages in the System, and the Order Number under which
the System was shipped. Upon receipt of the written notice of claim, TDS shall
have right to inspect the System. Such failure by Customer to give timely
written notice shall constitute an irrevocable acceptance of Systems and an
admission that TDS fully complies with all the terms, conditions and
specifications of the Agreement.

4.         No refunds,
exchanges or returns will be accepted for reasons other than defects,
non-conformity, loss, or damage.

 

6.         Maintenance;
Support; Replacements 

 

TDS shall provide without charge, at its discretion, an
on-site 

or remote representative for any adjustments, modifications, 

or additional training needed for three (3) days following the
Acceptance Date 

(“Adjustment Period”). Should Customer require any
maintenance or other post- installation assistance, or desires to move,
upgrade, modify, or make any other changes to its System, following the
Adjustment Period, the Customer shall be provided such maintenance or services
according to its prior engagement of one of the following options (each, a
“Maintenance Package”), as set forth on the attached Section B: Option 1 – As
Needed Coverage: Customer declines to enroll in any one of TDS’s Maintenance
Packages and shall either pay TDS’s current hourly rate and Dispatch Fee for
maintenance and shall in addition pay for any other required equipment or
materials, or engage a third party to perform the required maintenance. 

Option 2 – Equipment Only Coverage: TDS shall provide replacement
equipment only under this option. Only the equipment listed on Section A shall
be covered. Replacement equipment shall be provided within two (2) business
days, provided the claim is received by TDS by 2pm Monday through Friday. For
any claims received after 2pm, replacement shall be provided within three (3)
business days. Replacement equipment shall consist of new or refurbished
equipment, depending on availability. Customer shall be provided with a return
label to send back the defective equipment. Defective equipment must be
returned within thirty (30) days of receipt of the new equipment or shall be
invoiced at the manufacturer’s current suggested retail price of the equipment.
Labor is not included in this package and shall be billed at the current
published hourly rate if needed. 

Option 3 – Remote Coverage: TDS shall provide technical assistance
via remote (email, telephone, or Internet) means. Upon submission of a
claim, within twenty-four (24) hours a TDS technician or subcontracted
technician shall log into the System remotely and troubleshoot the problem.
Should an on-site technician be required, Customer agrees to pay the current
published hourly rate and Dispatch Fee. Should replacement equipment be
required, Customer shall pay for replacement equipment, as well as any
installation required, as an additional cost. Service shall be provided between
the hours of 9:00am and 5:00pm, Monday through Friday, excluding federal
holidays. Should Customer require service outside of regular service hours,
such service shall be billed at TDS’s current published overtime rate and the
overtime Fee.

 Option 4 – Premier Package: TDS shall provide an on-site technician
for next business day service, provided the claim is received by 2:00pm.
Equipment replacement, if required, shall be covered. Replacement equipment
shall consist of new or refurbished equipment, depending on availability.
Defective equipment must be returned within thirty (30) days of receipt of the
new equipment or shall be invoiced for the manufacturer’s current suggested
retail price of the equipment. Service shall be provided between the hours of
9:00am and 5:00pm, Monday through Friday, excluding federal holidays. Should
Customer require service outside of regular service hours, such service shall
be billed at TDS’s current published overtime rate and the overtime Fee.

Option 5 – Premier Plus Package: TDS shall provide within six (6)
hours of submission of claim, an on-site technician for same-day service.
Equipment replacement, if required, shall be covered. Replacement equipment
shall consist of new or refurbished equipment, depending on availability.
Defective equipment must be returned within thirty (30) days of receipt of the
new equipment or shall be invoiced for the manufacturer’s current suggested
retail price of the equipment. Service shall be provided between the hours of
9:00am and 5:00pm, Monday through Friday, excluding federal holidays. As such,
any claims submitted after 2:00pm are not guaranteed same-day service. Should
Customer require service outside of regular service hours, such service shall
be billed at TDS’s current published overtime rate and overtime Dispatch Fee.

None of the following Services are covered under any of the
coverage options listed above (“Non-Covered Services”): (i) Physically moving
the System equipment; (ii) Adding hardware or software to the System; (iii)
Programming changes to the System;(iv) Changes required for compliance with
local, state or Federal law; (v) any damage or fault to the System due to
excessive or non-customary use; or (vi) any changes to the wiring or cabling of
the System. As such, any required Non-Covered Services shall be billed at TDS’s
current published hourly rate and Dispatch Fee. Any additional equipment shall
be charged at TDS’s current retail price.

Renewal Policy:

The service contract will be automatically renewed for the same
period of time as the original agreement unless TDS receives written notice
from customer stating customer’s intent not to renew. All notices not to renew
must be in writing and mailed to TDS via Certified US mail, return receipt
requested within thirty days of the contract renewal date. TDS will automatically
bill customers credit card on file, mail customer invoice or charge renewal
amount to customers’ lease. Standard maintenance contracts are a 1-year
term. 

6.         Acceptance;
Returns 

1.         After the
System is delivered to Customer, Customer inspects the System, System is
installed at Customer’s site, and Customer is trained on use of System,
Customer shall sign a Delivery & Acceptance Acknowledgment, upon which date
the System shall be considered accepted by Customer 

(“Acceptance Date”).

2.         All claims
made by Customer for any defects, non-conformity, loss, damage, errors, late or
non-delivery of Systems sold by TDS under the Agreement shall be made in
writing and delivered to TDS within fourteen (14) days of the Acceptance Date.
There will be restrictions from the leasing company that may affect the 

3.         Such written
notice of claim shall specify all claimed defects, non-conformities, losses,
damages, errors or shortages in the System, and the Order Number under which
the System was shipped. Upon receipt of the written notice of claim, TDS shall
have right to inspect the System. Such failure by Customer to give timely
written notice shall constitute an irrevocable acceptance of Systems and an
admission that TDS fully complies with all the terms, conditions and
specifications of the Agreement.

4.         No refunds,
exchanges or returns will be accepted within fourteen (14) days for reasons
other than defects, non-conformity, loss, or damage. 

6.   Since the equipment that is leased is solely
dependent on the finance/leasing company, the finance/leasing company only has
the authority to refund the customer or cancel a contract. TDS is not
responsible for the finance/leasing company denying a refund. 

7.   Leasing companies may charge the remainder of the
lease contract once the Delivery and Acceptance has been signed.

 

7.         Force Majeure

 

1.         TDS shall have no
liability for delays, failure in performance or damages due to: fire,
explosion, power failures, pest damage, lightning or power surges strikes or
labor disputes, water, acts of God, the elements, war, civil disturbances, acts
of civil or military authorities or the public enemy, inability to secure raw
materials, transportation facilities, fuel or energy shortages, performance or
availability of communications services or network facilities, unauthorized use
of the Products, or other causes beyond TDS’s control whether or not similar to
the foregoing.

 

8.         Limitations
of Liability 

 

1.     
Exclusive Remedies & Limitations of Liability

The entire liability of TeleData Services, LLC. and its
Subsidiaries, Affiliates and Subcontractors (and the Directors, Officers,
Employees, Agents, Representatives, Subcontractors and Suppliers of any and all
of them) and your Exclusive remedies for any damages caused by any product
defect or failure, or arising from the performance of any work or service, regardless
of the form of action, whether in contract, tort including negligence, strict
liability or otherwise, shall be: (1) For Failure of products during the
warranty period, the remedies stated in Section TeleData Services, LLC. failure
to perform any stated material term of this agreement your sole remedy shall be
to terminate this agreement without incurring cancellation charges if TeleData
Services, LLC. fails to correct such failure within thirty (30) days of receipt
of your written notice, notwithstanding such termination, you shall be
obligated to pay for any performance or products provided by TeleData Services,
LLC. rendered prior to termination, (3) For damages to real or tangible
personal property or for bodily injury or death to any person for which
TeleData Services, LLC.’s sole negligence or willful misconduct was the
proximate cause, your right to proven damages to property or person; and (4)
For claims other than set forth above, TeleData Services, LLC. liability shall
be limited to proven direct damages in an amount not to exceed the price of
service giving rise to the liability or $500,000, whichever amount is
less. 

2.         Except to the
extent provided in Subsection 11A, TeleData Services, LLC. shall NOT be liable
for the following types of damages: (1) Indirect or Incidental damages (2)
Special or consequential damages, including but not limited to lost profits, savings,
or revenues of any kind, lost, corrupted, misdirected or misappropriated data
or messages, and charges for common carrier telecommunication services or
facilities accessed through or connected to products (‘toll fraud’).

 

9.         Subcontracting

 

1.         TDS
may subcontract work to be performed under this Agreement but shall retain
responsibility for the work.

 

10.       Assignment

 

1.         Neither
party may assign this Agreement without the prior written consent of the other
party, which consent shall not be unreasonably withheld. However, TDS may
assign this Agreement to a present or future affiliate, subsidiary, successor,
or distributor or may assign its right to receive payment without your consent.

 

11.       Statute of Limitations

 

1.         No
Proceeding or action of any type may be maintenance if commenced later than 1
year following the accrual of the cause of action.

 

12.       Provision of
Services

 

1.         All orders
for Service (“Service Order”) must be made in writing or by telephone to TDS.
No Service Order is binding on TDS until an authorized representative of TDS
has confirmed receipt of the Service Order in writing. Services shall include
any repairs to the System in its present state as of the date of this
Agreement, due to customary wear and tear, normal use and proper operation of
the System as originally intended.

2.         As a condition
precedent to TDS providing the Services hereunder, Customer shall provide full
and free access to the System, its components, and its location, and shall
notify TDS of any pre-existing conditions concerning the System and which may
affect the Services to be provided hereunder.

3.         If at any time TDS
determines that remote technical assistance would be sufficient to resolve
Customer’s claim, and remote service is covered under Customer’s current maintenance
package, TDS may at TDS’s sole discretion provide such remote service instead
of on-site service.

4.         Precise dates or
times of Service, if any, are indicated for informational purposes, do not
constitute a term of this Agreement, and shall not entitle Customer to assess
penalty fees or any other form of compensation, or to refuse to perform under
this Agreement. TDS may determine the date or time of Service at its sole
discretion, provided such date and time adheres to the requirements of
Customer’s selected Maintenance Package listed in Section B.

 

13.       Final Agreement; Terms & Modification; Electronic
Signature

 

1.         This
writing is intended by the parties hereto as a final expression of their
agreement and is intended to constitute a complete and exclusive statement of
the terms of their agreement.

2.         b.
In the event any of the terms of this Agreement are different from or in
addition to those proposed by Customer in a purchase order or those contained
in any written or oral offer or any other document incidental to this
Agreement, the terms of this Agreement shall prevail.

3.         c.
This Agreement may only be modified by a writing signed by the parties hereto,
except for subsequent non-material modifications made by TDS within a
reasonable time period.

4.         d.
TDS and Customer agree that this Agreement and any modifications made hereto
may be electronically signed. TDS and Customer agree that the electronic
signatures appearing on this Agreement will have the same validity and effect
as a signature affixed by hand. Notwithstanding this section 11(d), Customer is
not required to sign this Agreement electronically and may alternatively
provide his or her handwritten signature.

 

14.       No Waiver

 

1.         The
failure of either party at any time to require performance by the other party
of any provision hereof shall in no way affect the full right to require such
performance at any time thereafter, nor shall the waiver by either party of a
breach of any provision hereof constitute a waiver of any succeeding breach of
the same or any other provision nor constitute a waiver of the provision
itself.

 

 

15.       All OTHER PURCHASES
OF EQUPIMENT

 

1.    For purchases made and not leased, there
will be a 30% restocking fee for any equipment within thirty (30) days of
purchase. 

2.   If any equipment is used, there will be an
additional 10% fee charged to the customer. 

3.   There will be no refunds after thirty (30) days of
the purchase date. 

 

4.   The customer will be responsible for shipping back
the returned equipment at the customer’s expense.