Unicom Telecom Inc., shall provide, and Customer shall pay for, the Service in accordance with the following terms and conditions:
1. EFFECTIVE DATE and TERM:
This Agreement shall become effective on the date that the Customer’s signed Service Order is accepted by Unicom. Unless otherwise agreed to in writing by Unicom, all Service shall be provided for a minimum Term. Such Term shall commence on the date upon which the Service is made available for use by Customer, and shall continue until the expiration of the Term or until this Agreement is otherwise terminated as set forth herein. Following the initial Term, this Agreement shall continue on a month-tomonth basis until terminated upon 30 days’ prior written notice by either party hereto, or until the parties enter into a new service agreement.
2. BILLING and PAYMENT TERMS: The fees for Service are as set forth on page 1 of this Service Order and Agreement. All usage-based calls are rated individually and rounded to the nearest penny, with a minimum charge of two cents ($0.02). Customer shall also be responsible for payment of any applicable local, state, or federal taxes, fees, and government-imposed charges or surcharges, which may include Universal Service Fund assessments, PICC fees, and payphone compensation charges, As well as E911 Fee and Regulatory Recovery Fee. Unless otherwise specified, Services are provided and invoices are issued on a monthly basis for actual usage of Service and all subscription fees are due in advance at the start of Service. In the case of a partial month’s service, the initial invoice shall include any pro-rated charges for the prior month. Any set-up, installation or equipment charges shall be billed the first month following such set-up, installation or delivery of equipment. In the event of any dispute regarding a billing invoice, Customer shall notify Unicom in writing within fifteen (15) days of receipt of the invoice. Thereafter, said invoice shall be deemed correct and binding. Payment is due no later than the twenty-fifth (25th) day from the invoice date. Any amount not paid within twenty-five days after the invoice date shall bear interest commencing on the invoice date and continuing through the date payment is received, at a rate equal to the lesser of 1.5% per month or the highest rate permitted by law. In addition, invoices not paid by the twenty-fifth (25th) day from the invoice date will not be eligible for any quoted volume or term discounts. Customer is responsible for paying the entire amount billed on the invoice, including reasonably disputed charges, whether or not documented in writing to Unicom. Any dispute resolved in Customer’s favor shall be credited on Customer’s next invoice. Customer shall not seek legal or equitable remedies, including without limitation, injunctive relief, which would require Unicom to continue providing Service to Customer while any delinquent amount payable to Unicom remains unpaid. Customer may be charged a fee up to $25 for reactivation of any service due to non-payment. In addition, Toll-Free Customers may be charged a $25 fee per change on any Toll-Free number. All Unlimited Plans means up to 2000 minutes per month per out going line. Maximum Voice Mail per box will be 100. All Voice mails will be purged after 1 month.
3. SERVICE and RATES: Initial rates for the Service plan are set forth on page 1 of this Service Order and Agreement or in the separate pricing form furnished to customer. Except where otherwise required by applicable law or the provisions of this Agreement applicable to Term plans, Unicom may revise the rates for Service from time to-time without prior notice, to reflect changes in regulatory-imposed fees, the cost to provide service, service charges and tariffs, or otherwise. Unicom reserves the right to move Customer to a different Service or rate plan if usage or other criteria are not met for the plan to which Customer has subscribed or in which Customer currently is enrolled.
4. LIMITATION of LIABILITY: Customer acknowledges that Unicom is not liable to Customer or to any third party for calls not completed or for any errors in transmission. Unicom is not liable to Customer for any act of or representation made by independent Distributors or Agents who sell Unicom Service, unless expressly approved by an officer of Unicom in writing or unless contained in a document provided by Unicom to Customer. Customer recognizes the complex nature of telecommunications technology. Unicom shall not be responsible for any hardware/software including, but not limited to, PBX and PBX programming, CSU, DSU, channel bank, routers or any other customer-premises equipment required for any service provided by Unicom. Except as specifically set forth herein or in any attachment or addendum, the Service and related software and/or equipment provided by Unicom, if any, are provided on an “as is” and “as available” basis. Except for Unicom System’s undertaking to maintain the quality of its network consistent with prevailing industry standards and sound business practice, Unicom MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. Certain states do not allow any limitation of implied warranties and, therefore, certain provisions may not apply to Customers located in those States. Under no circumstances shall Unicom have any liability for: (a) any act or omission of any connecting carrier or any underlying carrier or local exchange company whose services are resold by Unicom, or any other third-party provider of connections, equipment, facilities or service to Customer or Unicom; (b) any act or omission of Customer, its agents, servants, employees, invitees or guests; or (c) any failure of equipment, facilities or connections provided by the Customer. Neither shall Unicom have any liability for mistakes, omissions, interruptions, errors, delays, defects in transmission or failure to transmit, when caused by acts of God, fire or other natural disaster, war, terrorism, riots, labor disturbances, cable cuts, Government authorities, or an other causes beyond Unicom System’s control. IN NO EVENT SHALL Unicom, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST REVENUE, PROFIT, CUSTOMERS, GOODWLL OR DATA, ARISING FROM OR RELATED TO THE SERVICE, INCLUDING ERRORS, MISTAKES, OMISSIONS, INTERRUPTIONS OR DELAYS BY Unicom, ITS PROVIDERS, AGENTS, SERVANTS OR EMPLOYEES IN THE COURSE OF ESTABLISHING, FURNISHING, REARRANGING, MOVING, BILLING, TERMINATING OR CHANGING REGULATED OR NON-REGULATED SERVICES OR FACILITIES AS CONTEMPLATED HEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER A CLAIM IS ASSERTED FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER A CLAIM IS ASSERTED IN CONTRACT, TORT OR STRICT PRODUCT LIABILITY, IRRESPECTIVE OF WHETHER Unicom HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. Unicom System’s LIABILITY TO CUSTOMER HEREUNDER SHALL NOT EXCEED THE LESSER OF CUSTOMER’S ACTUAL DAMAGES OR THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS (THE “AFFECTED SERVICE”), CALCULATED FROM COMMENCEMENT OF THE AFFECTED SERVICE TO THE DATE A CLAIM IS MADE. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. Customer represents and warrants that this is a commercial and business transaction, and not a consumer transaction.
5. TERMINATION: In the event of Customer’s early termination of this Agreement prior to the expiration of any fixed Term, Customer shall pay Unicom all charges for service provided through the effective date of such termination, plus any and all applicable re-rated service costs for previous months services that were rated based on a longer term agreement than was satisfied by the early termination. It is agreed that Unicom System’s damages, if Service were terminated prior to the expiration of the Agreement Term, would be difficult or impossible to ascertain. Accordingly, the terms of this Paragraph 5 are intended as liquidated damages and not as a penalty in the event of early termination. Termination of Service shall not relieve Customer of its obligation to pay all fees for Service accrued and owing up to and including the date of termination or any other amount payable to Unicom. Unicom may terminate this contract at any time in its complete discretion.
6. CANCELLATION: Unicom may discontinue Service or cancel an application for service, without incurring any liability, for any of the following reasons: (a) non-payment when due of any sum payable to Unicom for service; (b) violation of any law, rule or regulation of any governing authority having jurisdiction over the service; (c) by order of a court or other governmental or quasi-governmental authority having such jurisdiction; (d) in the event service charges exceed the amount of any deposit which Unicom may have required or any established credit limit; (e) if Customer provides false or misleading credit information; (f) if, in the sole discretion of Unicom , Customer’s financial condition has deteriorated or if Customer is involved in any bankruptcy or similar proceeding; (g) in the event of any violation giving rise to a right of termination as set forth in Unicom System’s applicable tariffs; (h) fraudulent use of the Service; or (i) any material default under this Agreement including, but not limited to, violation of Unicom System’s Acceptable Use Policy (available on Unicom System’s website www.UnicomTelecom.com or from the Customer Service Department), as applicable.
7. MISCELLANEOUS: This Agreement shall be governed by and construed in accordance with the substantive and procedural laws and practices of the State of New York, and any action commenced hereunder shall be brought exclusively in a court of competent jurisdiction in the State of New York. If a dispute arises and Unicom refers this Agreement to an attorney for collection, Customer shall pay all costs of collection, including interest, court costs, fees and reasonable attorney’s fees. No provision of this Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing signed by the party against whom the enforcement of such waiver, amendment or modification is sought. Each party represents that it has the full right, power and authority to enter into this Agreement and to perform all of the obligations on its part contemplated herein. Customer may not assign this Agreement or resell, sublicense or transfer any interest in the Service without Unicom System’s prior written consent. Any notice required or permitted to be given under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, or by overnight courier, to the Customer at the address supplied on page 1 of this Service Order and Agreement, and to Unicom at 1051 Bloomfield Avenue, Suite 6, Clifton, NJ 07012, Attention: President. Either party may, at any time, notify the other of a change of address for notices, by giving written notice in accordance with this Paragraph. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any order submitted by Customer or the terms of any other agreement between Customer and Unicom. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. Unicom may collect from Customer its costs (including reasonable attorneys’ fees) incurred in enforcing this Agreement. If necessary, and if requested by Customer, Unicom will provide commercially reasonable assistance to Customer in obtaining necessary facilities from the local telephone company through which Customer may use Unicom service. Customer is responsible for such activity and is liable for any and all charges incurred therefore. Notwithstanding the cancellation or natural expiration of the Term of this Agreement, if Customer has accumulated unpaid charges for Toll-Free or regular long distance Service, Unicom may refuse any request for release or other transfer of Local and Toll-Free numbers to a third party, and may reject any request for change in Toll-Free service to another carrier, including a change request from a Responsible Organization, without liability to Unicom, until such charges are paid in full to the date of termination of service. Unicom reserves the right to reassign any terminated Toll-Free or Local number(s). This Service Agreement is subject to the terms and conditions of all applicable tariffs. In the case of conflict, the applicable tariff shall apply.
8. VERIFICATION and CREDIT APPROVAL: Customer shall provide Unicom with credit information as requested. Unicom reserves the right to withhold initiation or implementation of Service under this Agreement pending credit review. Unicom may require Customer to make a deposit at any time as a condition to acceptance of any Service order submitted by Customer or as a condition to continuation of Service. Unicom shall hold such deposit as security for payment of charges, and Unicom may draw upon such deposit without any notice to Customer immediately when such account becomes past due. When the provision of Service to Customer is terminated, the amount of any unapplied deposit shall be credited to the Customer’s account and any credit balance, which may remain, shall be refunded without interest thereon. In the event Customer’s order is provisioned prior to completion of verification and credit check, said provisioning shall be deemed conditional and may be canceled immediately in the event of an unsatisfactory credit report or failure on the part of Customer to provide a required deposit.
9. NO ASSIGNMENT; ENTIRE AGREEMENT: Customer may not assign this Agreement without the prior written consent of Unicom, which may be withheld in its sole discretion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective affiliates, successors and permitted assigns. This Agreement, together with any attachments, constitutes the entire Agreement and understanding between Customer and Unicom as to the subject hereof.
10. LETTER OF AGENCY (LOA) I herby appoint Unicom to act as my agent in order to effectuate the collection of account information and/or carry out the change(s) authorized on my behalf. I hereby authorize the change of my communications company(s) from that/those which I am currently using to Unicom for the purpose of ordering and/or maintaining communications services, including, but not limited to, Local Services, Long Distance Services, Private Line Services, Internet Services and Number Portability.