Gateway Services Agreement

This Gateway Services Agreement (the “Agreement”) applies to the MetroSwitch Technologies, Inc. (“Provider”) Gateway Services (as defined herein) to which you (“Customer”) subscribed, except for any services provided under another agreement between Customer and Provider.  The Effective Date shall be the date at which Customer first utilizes the Gateway Services.  When Customer uses the Gateway Services after the Effective Date, Customer is accepting the terms of this Agreement.  If Customer does not agree with the terms of this Agreement, Customer must notify Provider prior to the Effective Date to disconnect Gateway Services.  Customer and Provider are collectively referred to herein as the “Parties,” and individually, a “Party.”

 

  1. Equipment. The Customer has obtained use of MetroSwitchSM equipment from Metroswitch Technologies, Inc. (the “Equipment”) and licensed the software provided in connection with such Equipment in accordance with a separate agreement with Metroswitch Technologies, Inc. (the “MetroswitchSM Agreement”). This Agreement governs the gateway services and resale of minutes (the “Services”) that Customer may elect to use in connection with such Equipment. The Services are offered for Customer’s use only, through dedicated facilities or SIP interconnections, and not for resale.
  2. Gateway Services. Provider and/or its affiliates will provide access to its providers and resell the services of its providers to the Customer in accordance with its then-current rate schedule. Customer may customize its Services by opting out of any particular provider by providing 30 days’ notice to Provider. Provider will combine all such resold telecommunications services on one invoice to Customer. Provider may update the charges, surcharges and rate schedule applicable to Enhanced Telecommunications Services from time to time by providing at least 30 days’ notice to Customer with respect to domestic charges and other charges, and 7 days’ notice with respect to international charges. Provider may also modify the provider(s) available for Services upon providing 30 days’ notice to Customer.
  3. Outbound Services. Customer will pay the usage charges for each Local Access and Transport Area (“LATA”) or NPA-NXX and rate classification set forth in the pricing schedule sent to Customer from Provider, in consideration for which Provider will provide services for calls made to Provider’s coverage area by Customers (the “Outbound Service”). Upon request, Customer will, prior to the activation of the Outbound Service, provide usage volume data.
  4. Inbound Services. Customer will pay the usage charges for each LATA or NPA-NXX and rate classification set forth in the pricing schedule sent to Customer from Provider, in consideration for which Provider will provide origination services for calls made to Customer's toll-free numbers or local access (DIDs) from LATAs within Provider’s coverage area, as set forth in the pricing deck (the “Inbound Services”). Upon request by Provider, prior to the activation of the Inbound Services, Customer will: (i) provide usage volume data; (ii) authorize Provider to serve as the Responsible Organization ("RespOrg") to the extent desired by Customer for the toll-free numbers subscribed to by Customer for toll-free routing services; and (iii) provide written routing instructions consistent with this Agreement.  Customer will be responsible for settling Payphone Service Provider (PSP) charges consistent with PSP rules and regulations of the Federal Communications Commission in Docket No. 96-128 regarding compensating Payphone Service Providers for all coinless payphone calls. Customer understands and agrees that Provider will provide information to third parties (including PSPs) relating to calls from payphones where Provider is the intermediate carrier, and specifically understands and agrees that such communications are outside the scope of any confidentiality obligation owed by Provider to Customer. In connection herewith, Customer agrees to indemnify Provider from any and all claims, demands, suits, actions, losses and damages that may be asserted by third parties (including, without limitation, PSPs) arising out of or relating to the compensation of PSPs.
  5. Service Conditions. Customer is responsible for all costs necessary for access and dedicated facilities in order to connect to Provider’s nearest applicable meet point. Upon request Provider will provide, at no charge, access to a secured, password-controlled Provider on-line ftp site to allow Customer to view all CDR’s associated with the Services provided to Customer under this Agreement.
  6. Indeterminate Jurisdictional Calls. For the purpose of determining each call’s jurisdiction, the originating (i.e. calling party) number, originating ANI, and the terminating (i.e. called party) number, terminating ANI, and information present in the call stream will be evaluated. If calls presented to Provider are: a) without valid 10 digit USA originating ANI as set forth in the LERG, i.e., at the time of the call; or b) with a 10-digit originating ANI with NPAs of 976, 911, 900, 888, 877, 866, 800 & 700, Provider will treat the call as being of “Indeterminate Jurisdiction.” By way of example, the four items listed below meet the criteria of “Indeterminate Jurisdiction” as defined above.
    1. Blank ANI / No ANI
    2. Unrecognizable originating ANI, i.e., those that are not valid in the LERG
    3. Toll Free ANI, i.e., beginning with 800, 877, 888, etc.
    4. International originating ANI, i.e. a telephone number outside of the US 50 states
  7. Location Routing Number Billing. Services provided by Provider may be billed on a Location Routing Number (“LRN”) basis. A call’s applicable destination rate will be determined by Provider based on the LRN (the result of a Local Number query) when available.
  8. Forecasting. Upon request from Provider, Customer shall provide Provider forecasts disaggregated on an NPA-NXX basis identifying the estimated usage by total minutes of use and the anticipated number of calls per month. Provider will exercise commercially reasonable efforts, but shall not be obligated, to provision services with sufficient capacity to meet any additional needs of Customer in excess of its forecasted demand.
  9. Applicable Charges. The rates for communications services are for full minutes and are currently billed in six (6) second increments. Except as stated otherwise herein, usage charges are based on actual usage of Provider’s services and begin when the called party answers, as determined by answer supervision, and end when either party disconnects the call. For toll free origination traffic only, if answer supervision does not detect an answer or a disconnect within fifty-four (54) seconds, Provider may disconnect the call and bill the call for one (1) full minute.
  10. Deposit. Provider may require a deposit from Customer from time to time to cover charges estimated or incurred, depending on usage and Provider’s then internal credit requirements.
  11. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for a period of (36) consecutive months (the “Initial Term”), unless earlier terminated by the Customer on ninety (90) days’ notice to Provider. After the Initial Term, the Term will automatically be renewed for consecutive one (1) year periods unless either party provides the other party with written notification, at least thirty (30) days prior to the expiration of the then current Term of this Agreement, of its intention not to renew this Agreement. The obligations of Customer under the MetroswitchSM Agreement shall survive any termination of this Agreement.
  12. Invoices. All charges under this Agreement will be invoiced by Provider on a monthly basis. Customer agrees that a confirmed received email to the designated Customer contact with the invoice attached in Adobe Acrobat .PDF format shall constitute receipt of such invoice. All charges under this Agreement are due and payable by Customer to Provider, without demand or setoff, within thirty (30) days after receipt of an invoice for such charges (the “Due Date”). Any charges not received by Provider by the Due Date will be deemed past due. Any past due amounts are subject to a late charge in the amount of one and one-half percent (1.5%) per month compounded monthly, or the maximum rate allowable by law, whichever is less. If Customer fails to timely pay to Provider an invoiced amount due, but Customer paid Provider for services unrelated to the unpaid amount due, then Provider may apply any such paid amount or portion thereof toward any unpaid amount due to Provider.
  13. Dispute of Invoice. If Customer disputes any bill it must provide notice to Provider within thirty (30) days of the date of the invoice in dispute or the right to dispute any portion of the invoiced amount will be waived. All such disputes must be submitted in writing using the Billing Dispute Form available upon request, and must in a reasonable and clear manner identify the amount in dispute and the specific items in dispute.  Requests for billing adjustments that do not provide adequate information for analysis by Provider, as determined in Provider’s sole and reasonable discretion, will be rejected and any outstanding amounts will be due according to the invoice that was the subject of the request.  In the event of a billing dispute, Customer must timely pay any undisputed amounts to Provider. Each party agrees to negotiate in good faith for the purpose of resolving any properly raised disputes subject to the following: (a) in the event such dispute is mutually agreed upon and resolved in favor of Provider, Customer agrees to pay Provider the disputed amounts within ten (10) days of the resolution (the “Alternate Due Date”); and (b) in the event such dispute is mutually agreed upon and resolved in favor of Customer, Customer will receive a credit for the disputed charges in question and the applicable late fees in the next billing cycle.
  14. Disconnection of Service. In the event Customer is in material breach of this Agreement, including without limitation, failure to pay all undisputed charges owed hereunder by the date stated in the Suspension Notice and in addition to foreclosing any security interest Provider may have, Provider may disconnect all or any portion of the Services being provided hereunder or terminate the Term upon providing 15 days’ notice to the Customer.
  15. Taxes and Fees. Should Customer claim any exemption of any sales, use, or other taxes and fees, Customer must provide such proof of exemption to Provider. At all times Customer shall be liable for any local, state or federal taxes or fees due as a result of Customer’s use of Services. Except for taxes and fees based on Provider’s net income, Customer will be responsible for all taxes and fees that arise from any federal, state or local governmental entity, including value added, consumption, sales, use, gross receipts, foreign withholding, excise, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of Services.   Customer will indemnify Provider if any claim for such taxes or fees is made against Provider.
  16. Government Charges. When Provider elects to include applicable charges or taxes assessed by a federal, state or local governmental agency to the Customer, such costs will pass-through directly and any increase in such charges or taxes will apply to Customer. Provider reserves the right to increase Charges in order to pass through or reflect any applicable charges or taxes identified by a federal, state or local governmental agency (the “Regulatory Change Notice”). If Customer does not notify Provider in writing within seven (7) days of receipt of a Regulatory Change Notice of its rejection of the charge increase set forth in the Regulatory Change Notice (the “Regulatory Rejection Notice”), Customer will be deemed to have accepted the charge increase set forth in the Regulatory Change Notice.
  17. DISCLAIMER OF WARRANTIES
    1. THE SERVICES ARE MADE AVAILABLE ON A BEST-EFFORTS BASIS AND, THE WARRANTIES SET FORTH HEREIN CONSTITUTE THE ONLY WARRANTIES OF PROVIDER WITH RESPECT TO THE SERVICES. PROVIDER DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  18. Service Warranty. Provider will be reasonably available and will perform commercially reasonable efforts to correct any material defects in the Services.
  19. No Indirect Damages. In no event will Provider or Customer or any officers, directors, employees and agents of Provider or Customer be liable for any indirect, special, punitive, incidental or consequential damages, including but not limited to lost profits or revenues, under any theory or cause of action whether in tort, contract or otherwise, regardless of whether the Party has been advised of the possibility of such damages. Nothing herein is intended to relieve Customer of its obligations to pay for Services or facilities under this Agreement.
  20. LIMITATION OF LIABILITY. IN NO EVENT WILL PROVIDER’S LIABILITY BE GREATER THAN THE AMOUNT PAID BY CUSTOMER TO PROVIDER FOR SERVICES DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE.
  21. Indemnification. Customer will indemnify, defend, and hold harmless Provider and its respective officers, directors, employees, contractors and agents against all losses, demands,  claims,   judgments,  liabilities, fines, taxes, penalties, interest or other awards, damages or expenses of any kind, including, but not limited to, attorneys’ fees, and costs of litigation and appeals, arising from claims of a third party (including claims, assertions and investigations of a governmental agency), which claims arise in whole or part from: (i) the  negligent, grossly  negligent, reckless, intentional conduct,  willful misconduct,  or other tortuous conduct of Customer, its employees, officers, directors, contractors or agents, (ii) Customer’s breach or failure to fulfill any of the terms, conditions  or obligations  under this Agreement, whether or not due to Customer’s actions or omissions, or (iii) violation of any applicable law or regulation by Customer or  its respective officers, directors, employees, contractors and agents.  The indemnification provided herein shall survive the termination of the Term.
  22. Confidentiality. Each Party agrees to maintain, in strict confidence, all plans, designs, drawings, trade secrets, business, and other proprietary information (“Confidential Information”) provided to it pursuant to this Agreement by the other Party. The Parties understand and agree that the terms and conditions of this Agreement and all documents referenced herein are Confidential Information.  Each Party will use the same efforts (but in no case less than reasonable efforts) to protect the Confidential Information it receives hereunder as it uses to protect its own Confidential Information.  A violation or threatened violation by either Party or its agents of this Section will entitle the other Party to seek an injunction or restraining order.  The above requirements do not apply to Confidential Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party, or is already publicly available through no breach of this Agreement, or has been previously independently developed by the receiving Party.  Notwithstanding the foregoing, each Party is permitted to disclose the terms of this Agreement to its accountants and attorneys for legitimate business purposes and the receiving Party may disclose any Confidential Information which is necessary or appropriate to disclose in order to comply with applicable laws, rules, and regulations or to enable a Party to comply with this Agreement or which is required to be disclosed in a judicial or administrative proceeding after all reasonable legal remedies for maintaining such Confidential Information in confidence have been exhausted, including, but not limited to, giving the disclosing Party as much advance notice of the possibility of such disclosure as practicable so the disclosing Party may attempt to obtain a protective order concerning such disclosure.  Remedies stated in this Section are in addition to, and not exclusive of other remedies available at law or in equity.  The restrictions and obligations imposed by this Section will continue in force and effect for 5 years following termination of the Term.
  23. Legal/Regulatory Changes. Customer will only use the Services for lawful purposes, and without limitation, will comply with local and Federal laws including any and all rules and guidelines of the Federal Communications Commission. The Parties agree and acknowledge that law and regulation applicable to this Agreement are often subject to periodic modification or varied interpretation. The Parties shall cooperate in good faith in the application of law and regulation to this Agreement.  If any change in applicable law or regulation materially affects delivery of Service, the Parties will attempt to negotiate appropriate changes to this Agreement.  If the Parties are unable to reach agreement within thirty (30) days after Provider’s delivery of written notice requesting negotiation, then either party may terminate the affected Services upon thirty (30) days written notice.
  24. Force Majeure. Notwithstanding anything to the contrary, neither Party will be liable to the other or any other person or entity for loss or damage, or be deemed to be in breach of this Agreement for failure of performance, wholly or in part, under this Agreement (other than a failure to timely pay Provider fees owed) if such non-performance is due to causes beyond that Party’s reasonable control, including without limitation: acts of God, fire, explosion, vandalism, storm, or other natural occurrences; any law, order, regulation, direction, action or request of the Unites States government, or of any government (including without limitation, national, state or local governments having jurisdiction over any of the Parties) or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more of such governments, or of any civil or military authority; national emergencies; insurrections; riots; wars; strikes, lockouts, work stoppages or other such labor difficulties; or any act or omission of any other person or entity. In the event of force majeure circumstances affecting Provider or Customer, Provider may at its option (i) cancel this Agreement or (ii) modify the Services for any period necessary during which time this Agreement will remain in full force and effect.
  25. Assignment. Customer may not assign, sublet, delegate, or transfer any of its rights or obligations hereunder without the prior written consent of Provider, which consent will not be unreasonably withheld or delayed. Provider may assign part or all of the rights and/or obligations to an affiliate or other party in its discretion. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
  26. Waiver. The delay or failure of either Customer or Provider 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 will not constitute the permanent waiver of any term, condition, or remedy of or under this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect unless and until modified as provided in this Agreement.
  27. Severability. In the event that any provision of this Agreement conflicts with the law or regulation under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect.
  28. Governing Law. This Agreement will be governed by the laws of California without giving effect to applicable conflict of law provisions. With respect to any litigation arising out of or relating to this Agreement, each party agrees that it will be filed in and heard by the state or federal courts with jurisdiction to hear such suits located in Los Angeles County, California.  If either party commences litigation to enforce any term of this agreement the substantially prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
  29. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which counterparts will be deemed to be an original and such counterparts will constitute but one and the same instrument.
  30. Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any Party in connection with the transactions contemplated by this Agreement will create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a Party to this Agreement or a successor or permitted assign of a Party to this Agreement.
  31. Entire Agreement. This Agreement, including all Schedules, Exhibits, and Attachment(s), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, whether written or oral, between Provider and Customer. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by a duly authorized representative of each Party.