MetroSwitch Terms of Service
METROSWITCH TECHNOLOGIES, INC.
GATEWAY SERVICES AGREEMENT (GSA)
This Gateway Services Agreement (“GSA”) applies to the Gateway Services that you order from MetroSwitch Technologies, Inc. (“MetroSwitch”), as stated on a Quote or Service Order. WE RESERVE THE RIGHT TO CHANGE THE GSA IN THE FUTURE AT OUR DISCRETION AND WITHOUT NOTICE. PREVIOUS VERSIONS OF THIS GSA CAN BE FOUND AT: www.metroswitch.com/legal/archives.
Words used in this Agreement in the singular, where the context so permits, shall be deemed to include the plural and vice versa. Capitalized terms not otherwise defined in this Agreement have the following meanings:
(b) “Carrier” means a telecommunications provider with a contract with MetroSwitch that allows MetroSwitch to provide its services to You.
(c) “Coverage Area” means the area where the Gateway Services will be provided to you as specified in the Pricing Schedule.
(d) “Effective Date” means the date on which Your Quote is accepted by MetroSwitch and this Agreement is fully executed, which is when this Agreement becomes effective.
(e) “Gateway Service” is a service provided by MetroSwitch to allow You to make seamless outbound and inbound voice and data connections to Carriers through a dedicated private SIP trunk to obtain high quality, redundant, cost-optimized calling.
(f) “License and Equipment Agreement” means a separate agreement between you and MetroSwitch or one of its designated agents for the lease or purchase of a MCAP.
(g) “Local Exchange Service” means an additional service that You order as part of Your Gateway Service that provides local exchange service, or dial tone, to You.
(h) “MetroSwitch”, “the Company”, “we”, “our” and “us” means MetroSwitch Technologies, Inc., a Delaware corporation, and its affiliates and subsidiaries, that provide or may provide services to You under this Agreement.
(i) “MCAP” means the Multi-Carrier Access Point equipment and software You lease or purchase to provide a VoIP-based telecommunications routing and management system.
(j) “Pricing Schedule” means Your specific information regarding coverage area, prices, terms and conditions for the Gateway Services ordered by You, loaded directly into your MCAP, or otherwise published on Our website.
(k) “Quote” or “Service Order” means the document that You sign and provide to MetroSwitch to order Gateway Services, which could also be a separate Service Order. Once accepted by MetroSwitch, the Quote or Service Order becomes part of the Agreement.
(l) “Service Start Date” means the earlier of: (i) the day following activation of the MetroSwitch MCAP equipment, or (ii) 30-days after delivery.
(m) “SIP Circuit” (Session Initiation Protocol) is a private circuit ordered by You from MetroSwitch that enables You to use the Gateway Services.
(n) “You” or “Your” means the MetroSwitch customer (person or entity) ordering the services provided under this Agreement, and its employees, directors, agents and representatives and those who use the Gateway Services with your permission, or at your direction.
- GATEWAY SERVICES
(a) Pre-conditions. In order to obtain Gateway Services, You must purchase or lease a MCAP under a License and Equipment Agreement. Unless Your Quote provides differently, You must pay all costs for facilities, such as SIP trunking, needed to connect with Us to provide the Gateway Services that You order. You are responsible for ensuring that any equipment not provided by Us that You use in conjunction with the Gateway Services is compatible with MetroSwitch equipment. You must authorize Us to serve as the Responsible Organization (“RespOrg”) if You wish us to provide inbound calling access and routing for Your toll-free numbers.
(b) Volume information/forecasts. If requested by Us prior to activation, You will provide usage volume data for Your inbound and outbound calling. Thereafter, if requested by Us, You will provide forecasts, disaggregated on an NPA-NXX basis, of estimated minutes or use and number of calls per month. We will use commercially reasonable efforts to meet customer’s forecasted demand but are not obligated to meet any demand in excess of forecast.
(c) Selection of Carriers. You may select Your preferred Carrier(s) for your Gateway Services on Your Quote and, thereafter, may modify your choice of Carrier(s) on thirty days’ notice to Us. If You do not select Your Carrier(s) we have the right to unilaterally select such Carriers and we may substitute any Carrier at any time without notice to you, as long as the Gateway Services are provided to you. Your invoice will combine the charges for all selected Carriers.
(d) Network Changes. MetroSwitch reserves the right to suspend or interrupt Gateway Services at any time to make changes needed to provide, improve or enhance the services over our network. We will provide reasonable notice prior to any service suspension or interruption.
(e) Local Exchange Service. If You use the Gateway Services to provide You with local exchange service, or dial tone, then please read Exhibit 911 which describes the risks and responsibilities associated with providing access to 911 emergency services. METROSWITCH MAKES NO WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS PLACED THROUGH THIS LOCAL EXCHANGE SERVICE WILL BE CORRECTLY ROUTED TO 911 OR COMPLETED WITHOUT ERROR OR INTERRUPTION.
- CALL JURISDICTION
For billing purposes, to determine the applicable rate We use jurisdictional routing, which is comprised of interstate (between states) and intrastate (within one state) routes, based off the originating and the destination numbers. We will determine, and bill, a call termination rate, based upon Location Routing Number (“LRN”), when available, or by NPA-NXX, when LRN is not available. For calls of an Indeterminate Jurisdiction (“I.J.”) we will bill the intrastate rate, unless a different rate is stated in the Pricing Schedule. Such I.J. calls include, but are not limited to, those without valid originating number information (“ANI”) and toll-free ANI associated with 976, 911,900,888,877,866, 800 and 700 or international originating ANI (i.e. a telephone number from outside of the United States).
- PRICES; CHARGES; BILLING; PAYMENT AND CREDITS
(a) Rates. You will be charged for Your inbound and outbound usage at rates contained in Your Pricing Schedule or applicable MetroSwitch rates published on our website. If not otherwise indicated in Your Pricing Schedule: (i) for domestic U.S. calls, inbound and outbound, the per-minute rates are for full minutes and will be billed in six (6) second increments based upon actual usage, determined by answer supervision from the time the called party answers and the time the call is disconnected; (ii) international calls will be billed in one (1) second increments (except for Selected International Country codes where increments are sixty (60) second minimum and sixty (60) second increments or sixty (60) second minimum and one (1) second increments); and (iii) for toll-free origination traffic, if a call is not answered within 54 seconds it will be disconnected and billed for a full minute.
(b) Payment. You agree to pay MetroSwitch all applicable charges stated on Your monthly invoice for the Gateway Services, without deduction, setoff or delay for any reason. You agree to pay all applicable local, state or federal taxes, fees or surcharges, relating to the sale, use or provision of the Gateway Services. You agree to pay settling Payphone Service Provider (PSP) charges associated with calls to You from payphones under applicable PSP rules of the Federal Communications Commission when they are assessed against MetroSwitch. These will be stated separately on Your bill and are in addition to the rates and charges that apply to You. Your obligation to pay begins as of the Service Start Date. Your invoice is due upon receipt and payable within thirty (30) days thereof. The date of receipt shall be the date e-mailed to Your designated agent for billing and/or notice purposes or the date physically provided to a delivery service. MetroSwitch will not accept payment made with Restrictive endorsements or other limits on payment. Unless waived, in its sole discretion, MetroSwitch will assess a late payment fee for overdue payments at the lower of 1.5% per month (18% per annum) or the maximum rate allowed by law. MetroSwitch has the right to also recover all costs (including attorneys’ fees) for collecting delinquent or dishonored payments.
(c) Billing Disputes. To dispute a bill, You must provide Us with thirty (30) days’ written notice either on a form available from Customer Support or in a separate writing that details in a reasonable, clear manner the amount in dispute and the basis for the dispute. We reserve the right, within Our discretion, to reject any disputed bill which is not accompanied by evidence substantiating any requested billing adjustment. You must pay all undisputed amounts on a timely basis. We will try to resolve the billing dispute within ten days. If the dispute is resolved in Your favor you will be given a billing credit and relived of any late fees. If the dispute resolution in in MetroSwitch’s favor, you agree to pay all outstanding amounts within ten days of the dispute’s resolution.
(d) Price Changes. MetroSwitch may decrease the price of a Gateway Service without notice to You. This decrease will be reflected in the next bill sent after the price decrease. MetroSwitch may increase the price of a Gateway Service, or otherwise revise its charges, surcharges and rate schedule, upon thirty (30) days’ notice for domestic services and seven (7) days’ notice for international services notice, pursuant to Section 5. If You continue to use the affected Gateway Service after the effective date of this notice You will be deemed to have agreed to it and be responsible for payment of any increased price or surcharge. Any change in a tax or surcharge will be reflected in Your bill or a notice sent to You if required by law.
(e) Deposits, Credit Checks and Credit Limits. In the Quote You authorize MetroSwitch to investigate Your credit and share information about You with credit reporting agencies to determine Your credit worthiness. Based upon this investigation MetroSwitch may require a deposit, or set a credit limit, prior to providing the ordered Gateway Service. MetroSwitch reserves the right to apply such deposit against any past due amounts at any time and may restrict Your access to a Gateway Service if You exceed Your credit limit. Within ninety (90) days after termination of Your Gateway Service, MetroSwitch will return your deposit, less any unpaid amounts due for the service and any amounts owed for unreturned or damaged equipment.
(f) Service Credits. If there is an interruption or failure of a Gateway Service caused solely by MetroSwitch and not caused by You or a third party, or by a force majeure event, We will provide a pro-rated billing credit to You.
(g) Disputed Charges. If You dispute any charge on Your MetroSwitch invoice you must let us know within thirty (30) days of the invoice date and follow the dispute resolution procedures in Section 8. If you do not do so, your right to challenge a charge on a bill will be waived.
(a) Notice to You. When notice by MetroSwitch is required by this Agreement or other law We will provide notice to the email address of Your agent as stated on the Quote. You must notify us of any change in designated agent and can do so by contacting MetroSwitch Customer Service or by updating your agent of notice information online through the customer portal at www.metroswitch.com/login.
(b) Notice to MetroSwitch. When notice to MetroSwitch is required by this Agreement or other law You must provide written notice to MetroSwitch via letter sent by an overnight express service, with document tracking ability, to MetroSwitch Customer Service at 2685 Park Center Drive, Building A, Simi Valley, CA 93065 attention: Legal.
- TERM AND TERMINATION
(a) Term. The term begins on the Effective Date for the length of time indicated on Your Quote (“Initial Term”). Unless You provide ninety (90) days’ written notice to Us prior to the end of the Initial Term this Agreement will automatically be renewed annually and may thereafter be terminated upon thirty (30) days’ written notice prior to the end of each annual renewal term. For the purposes of termination described herein You must submit a cancellation request form to our customer support center. Upon proper termination of this Agreement, if there is a term commitment remaining on any individual items (e.g. SIP circuits) that have been provided to You by MetroSwitch then, for each such item, you will be charged an amount equal to the item’s monthly rate times the number of months remaining in its term. This amount constitutes liquidated damages and is not a penalty.
(b) MetroSwitch Termination. MetroSwitch may terminate or suspend a Gateway Service for a material breach if You: (i) fail to pay any charges when due; (ii) commit a fraud upon MetroSwitch; (iii) utilize the Gateway Services to commit a fraud upon another party; (iv) unlawfully use the Gateway Services; (v) abuse or misuse the MetroSwitch network or MetroSwitch services; (vi) interfere with another customer’s use of the MetroSwitch network or MetroSwitch services; or (vii) if You become insolvent, cease operations, are the subject of a bankruptcy petition, or have made an assignment for the benefit of creditors. MetroSwitch will provide you with notice of termination or suspension upon 48 hours’ notice pursuant to Section 5. If this Agreement is terminated because of Your violation you shall also be liable to pay an early termination fee, if one applies.
(c) Your Termination. If MetroSwitch commits a material breach of this agreement that remains uncured after You provide 48 hours’ notice, pursuant to Section 5 then You may terminate Your Gateway Service under this Agreement. If this Agreement is terminated due to MetroSwitch’s material breach You shall not be responsible for any applicable early termination charges.
- DISCLAIMERS OF WARRANTIES AND LIABILITY
(a) Disclaimer of Warranties. THE GATEWAY SERVICE SUPPLIED BY METROSWITCH IS ON AN ‘AS IS’ OR ‘AS AVAILABLE’ BASIS. METROSWITCH MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY NATURE AND DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INTERFERENCE, TITLE, NON-INFRINGEMENT OR THOSE WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. METROSWITCH PROVIDES NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY METROSWITCH OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO THE ADVICE PROVIDED.
(b) Limitation of Liability. METROSWITCH’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR DAMAGES ARISING OUT OF THIS AGREEMENT AND NOT DISCLAIMED UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO A PRO RATA CREDIT FOR THE MONTHLY FEES, EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES, YOU HAVE PAID TO METROSWITCH FOR THE SERVICES DURING THE TWO (2) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE. IN NO EVENT SHALL ANY OTHER LIABILITY ATTACH TO METROSWITCH AND THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW.
(c) Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER ANY CIRCUMSTANCE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF ANY USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF METROSWITCH HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH CLAIM.
- DISPUTE RESOLUTION
(a) Informal resolution. As a first step, You agree to bring any claim, question, or disagreement between You and MetroSwitch relating to this Agreement (“Dispute”) to MetroSwitch Customer Service for informal resolution. If this dispute is not resolved within thirty (30) days then You may commence litigation pursuant to Section 8(b).
(b) Litigation. If a Dispute between You and MetroSwitch relating to this Agreement cannot be resolved informally, litigation may be commended either in the Superior Court of California, County of Ventura for state court cases or the United States District Court of the Central District of California for federal court cases. Each Party agrees to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agrees not to bring any Disputes in any other court or adjudicative body. Each Party hereby consents to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waives any right that it may have to assert that such forum is not convenient or that any such court lacks jurisdiction. WE AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY, TO PARTICIPATE IN A CLASS ACTION, OR TO SEEK REMEDIES BEYOND THE EXTENT NECESSARY TO PROVIDE INDIVIDUALIZED RELIEF TO, AND AFFECTING ONLY, METROSWITCH OR YOU ALONE. WE AGREE NOT TO ACT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR DE FACTO CLASS OR REPRESENTATIVE PROCEEDING, OR AS A PRIVATE ATTORNEY GENERAL OR ON BEHALF OF THE GENERAL PUBLIC. The substantially prevailing party in any such litigation shall be entitled to recover reasonable attorney’s fees and costs.
(a) By MetroSwitch. MetroSwitch agrees at its expense to defend or settle any claim against You and to pay all compensatory damages finally awarded against You where the claim alleges that a service infringes any patent, trademark, copyright, or trade secret, except where the claim arises out of: (i) Your or a User’s content; (ii) modifications to the service by You or third parties, or combinations of the service with any services or products not provided by MetroSwitch; (iii) MetroSwitch’s adherence to Your written requirements; or (iv) use of the service in violation of this Agreement. MetroSwitch may either procure the right for You to continue using, or may replace or modify, the alleged infringing service so that the service becomes non-infringing, or failing that, to terminate the service without further liability to You.
(b) By You. You agree that we should not be responsible for any third-party claims against us that arise from your use of the Gateway Services. Further, You agree to reimburse us for all costs and defenses related to the defense of any such claims, including attorney’s fees, unless such claims are based on Our willful misconduct or gross negligence. This provision will continue to apply after this Agreement ends.
- GENERAL PROVISIONS
(b) Independent Contractor Relationship. Each party is an independent contractor. Neither party controls the other, and neither party nor its Affiliates, employees, agents or contractors are Affiliates, employees, agents or contractors of the other party.
(c) Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. MetroSwitch may (i) assign in whole or relevant part its rights and obligations under this Agreement to an affiliate, or (ii) subcontract work to be performed under this Agreement, but MetroSwitch will in each subcontracting case remain financially responsible for the performance of such obligations.
(d) Limitations. Any claim or dispute arising out of this Agreement must be filed within two (2) years after the cause of action arises and parties waive any statute of limitations to the contrary.
(e) Governing Law. This Agreement shall be governed by the laws of the state of California. This Agreement is limited to Gateway Services provided in the United States.
(f) Force Majeure. The Company shall not be liable for any loss or damage, delay, or failure in performance of any of the services or facilities furnished by the Company from causes beyond the Company’s control, such as fire; flood; lightning; earthquakes; power failures or blackouts; severe weather; explosions; wars or armed conflicts; national, state or local emergencies; civil disobedience; shortage of labor or materials; labor disputes, strikes, or other concerted acts of workers (whether of the Company or others); embargoes; acts of God; acts of terrorism, or acts of vandalism or acts otherwise known as “Force Majeure”.
(g) Entire Agreement. This Agreement (the Quote or Service Order, the Pricing Schedule, this GSA, and the MetroSwitch policies incorporated by reference) constitutes the entire agreement between MetroSwitch and You concerning the Gateway Services and supersedes all other written or oral agreements. Only the Quote or Service Order may be amended or modified by written agreement of the Parties. All other components of the Agreement may be changed by Us at our discretion without notice.
(h) Severability. If any part of this Agreement is found to be invalid or unenforceable, the rest of the Agreement remains enforceable.
(i) Priority of Terms of Signed Agreements. In order of preference the terms of the Quote or Service Order, then the Pricing Schedule shall control over this GSA.
YOUR SIGNATURE BY YOUR DULY AUTHORIZED AGENT ON THE QUOTE MEANS THAT YOU HAVE HAD THE OPPORTUNITY TO READ THE TERMS OF THE GSA AND AGREE TO ITS TERMS. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS GSA THEN DO NOT BEGIN TO USE THE GATEWAY SERVICES AND NOTIFY US IMMEDIATELY.