CNI-INDEPENDENTS FIBER NETWORK, LLC HOSTED VIRTUAL IP-PBX SERVICES

I. Service Description

CNI and INDEPENDENTS FIBER NETWORK, LLC (CNI-Independents) Hosted Virtual IP-PBX Service (“Service” or “Hosted PBX Service”) is a service offering consisting of (i)

Professional Services project management and turnkey implementation of the CNI-Independents-provided Hosted PBX solution and network services; (ii.) the provision of Hosted PBX manufacturer hardware and software applications, telephone handset(s) and related applications (collectively “Equipment”) at Customer-specified service location(s) (“Premises”); (iii.) the furnishing of voice and data access, local, and long distance services; (iv) the service and support of Equipment at such Premises; (v.) on-going lifecycle management; (vi.) remote moves, adds, and changes; (vii.) proactive monitoring and alerting.

Service is provided, in part, via a centralized multi-tenant IP-PBX that accommodates customers with IP telephone stations and allows access to CNI-Independents’ network.

The Service provides basic voice service calling features with each telephone number ordered. In order for Customer to qualify for IP telephone handsets for use in connection with the Service, Customer must qualify itself as IP-ready.  CNI-Independents will evaluate, design, provision, maintain and manage Service based on a configuration proposed to, and accepted by, Customer as detailed in the accompanying Service Order Agreement (“SOA”).

CNI-Independents shall use reasonable measures in accordance with good industry practice to ensure that the Service is available for use at all times by the Customer, but the Customer acknowledges that, owing to the nature of IP and telecommunications networks, it is impossible to provide an uninterrupted or error-free Service. CNI-Independents shall respond to any reported fault with the Service, as soon as, reasonably practicable during CNI-Independents’ normal working hours and will use all reasonable measures to correct any fault within its control.

CNI-Independents will use all reasonable measures to ensure the security of the Service, but the Customer should be aware that there is always a risk of security being breached for reasons beyond the control CNI-Independents, where for instance the Service is provided through a third party network. CNI-Independents reserves the right to upgrade any Service delivery platform in order to provide new features and Services, to manage obsolescence or for any other reason at any time. In such cases, CNI-Independents reserves the right to migrate the provision of Service to the Customer to the new platform providing an equivalent Service, and will give Customer at least a 30-day notice of such change.

Where any Service involves integration or involvement with any service provided by a third-party vendor at the Customer’s request, CNI-Independents will use reasonable measures to accommodate the integration or involvement of the third-party service without any responsibility or liability whatsoever for; (i) the actions or non-actions of the third-party vendor; or (ii) the consequences of such integration or involvement with such third-party service. Any special or bespoke requests made by the Customer in regards to changes/additions to the Service must be notified in writing and will be undertaken on a reasonable measure basis by CNI-Independents subject to agreement of additional cost by the customer. CNI-Independents will not be responsible or liable for any resulting consequence of such request, such request and resultant consequence being at the additional full expense of the Customer, the Customer indemnifying CNI-Independents in full for all resulting loss, damages, costs and expenses incurred by CNI-Independents or any affected third party.

In the event of any inconsistency between the terms and conditions set forth in the SOA and these Hosted Virtual IP-PBX Service terms, these IP-PBX Service terms will control.

II. Definitions

In this Terms of Service, the following terms will have the following meanings:
Agreement – means the agreement between CNI-Independents and the Customer on the terms set out in the Order Form and in these Terms and Conditions;
Broadband – means an asymmetric or symmetric digital subscriber line (ADSL or SDSL) or Ethernet;
Contract Period – means the contract period stated in the Order Form;
Customer Equipment – means any telecommunications apparatus or system owned, controlled or housed by the Customer, excluding Service Equipment;
Customer – means the person or entity whose details are set out in the Order Form;
Customer’s Premises – means the Customer’s premises the address of which is set out in the Order Form;
Hosted Virtual IP-PBX Service – means a centrally hosted service for the provision of voice, video, instant messaging and other multi-media communications over IP networks;
Delivery – means the delivery of products or services where they are provided either at the Customer’s Premise or as a hosted service;
Hosted Call Recording – means the recording of external VoIP calls both inbound and outbound;
Installation – means the installation and commissioning of products or services either at the Customer’s Premise or as a hosted service;
Mobile Voice Recording – means the recording of mobile telephone calls;
Mobile Voice Recording Application – means the software application used by CNI-Independents to provide the recording of mobile phone calls;
Service – means the Hosted Virtual IP-PBX Service, and any other services which the Customer requested from CNI-Independents as specified in the Order Form (including but not limited to supply, delivery and installation of Service Equipment, training and Broadband connectivity and Mobile Voice Recording);
Service Equipment – means equipment (including but not limited to any data collection and call routing devices, routers, switches, handsets and other telecommunications equipment) which CNI-Independents may from time-to-time deliver to and / or install at the Customer’s Premises for the purposes of providing the Service, as specified in the Order Form or any Service Equipment addendum thereto;
Service Order Agreement (SOA) – means a request for Service signed by the Customer and delivered to CNI-Independents for CNI-Independents order acknowledgement;
Software – means the VoIP application software used by CNI-Independents to provide the Hosted Virtual IP-PBX Service.

III. Software

CNI-Independents grants the Customer a non-exclusive, non-transferable license to use the Software for the term of their Agreement solely in connection with the use of the Service.

All intellectual property rights in the Software and the Service and any associated documentation made available to the Customer under their Agreement shall remain the property of CNI-Independents or its licensors.

IV. Agreement, Price Changes; Service Requirements and Restrictions

1. Agreement. These terms and conditions together with those set forth in the Service Order Agreement (“SOA”), including any applicable attachments, as well as any applicable tariffs, CNI-Independents General Customer Terms found at www.ifnetwork.biz, all of which are incorporated herein by reference and made part of the Agreement govern CNI-Independents’ provision of Hosted Virtual IP-PBX Service.

Refusal by Customer to accept Service upon its availability will result in a “Not Ready for Service” or delay charge. CNI-Independents may modify the rates and prices for Service. If it does so, CNI-Independents will notify Customer in writing in advance of any price increase in accordance with the requirements set forth in the SOA.

a. Basic Service Active Seat Unit Charge. The Basic Service Active Seat Unit Charge incorporates the then current features included by CNI-Independents as the Hosted IP-PBX Basic Service, which as a minimum will include the following system, telephone, network, and service and support elements:

i. Telephone station IP license
ii. Call origination and termination within the 48 contiguous United States
iii. System service and support

b. Feature Set Enhancements/Applications. Manufacturer and third party applications will be listed on the SOA under separate line items and are not included under the Active Seat Unit Charge:

i. Auto Attendant
ii. Call Center Agents and Queues
iii. Call Accounting
iv. Faxing
v. Voice Mailbox (standalone)

2. Service Requirements. To receive Hosted Virtual IP-PBX Service, Customer must execute, and CNI-Independents must accept, a Service Order Agreement (“SOA”) establishing the rights and obligations of Customer and CNI-Independents (including its contractors) with regard to the provisioning of Service and Equipment.

a. Customer-acknowledged / approved detail of network services including, but not limited to:

i. Complete and correct inventory of the Customer’s telephone numbers to be ported to CNI-Independents (as required).

ii. In the case of analogue lines being utilized for facsimile machines, the standard service is not compatible, and an alternative e-fax service will be offered for numbers that are required to be ported by CNI-Independents. This may result in a loss of service for a period of up to 15-days.

b. In order to use the Service, it is the Customer’s responsibility to procure, at its cost, a Broadband or Private Ethernet Transport Service (ETS) connection, either through CNI-Independents or through a supplier approved by CNI-Independents.

i. Where Broadband is supplied by CNI-Independents, it will include a guaranteed quality of Service (QoS) in accordance with a specification to be provided by CNI-Independents to the Customer.
ii. Where Broadband or ETS is supplied by a third party, then CNI-Independents does not assume any liability or responsibility for the third party Broadband service.

aa. Third Party Issues could adversely affect Customer’s communication solutions, including, but not limited to, inbound and outbound 4 digit dialing, and voicemail service. CNI-Independents is not responsible for such issues and Customer agrees to assume all responsibility for resolving any Third Party Issues.

bb. If during the course CNI-Independents supporting an open trouble ticket, CNI-Independents recognizes a Third Party Issue, CNI-Independents will troubleshoot the effort on a time and materials basis at CNI-Independents’ then-current rates and Customer agrees to pay such charges.

cc. If Customer desires CNI-Independents to work directly with the third party circuit carrier to resolve Third Party Issues, Customer will provide CNI-Independents with prior written permission via a Letter of Agency (LOA). CNI-Independents will provide third party circuit support as needed, on a time and materials basis at CNI-Independents’ then-current rates. Customer agrees to pay such applicable charges to CNI-Independents.

iii. The Customer acknowledges that call quality depends on both the specification and availability of the Broadband service to which the Customer is connected, and also on the IP or telecommunications’ network to which the person being called is connected.

5. Customers porting telephone numbers from hosted PBX providers are required to provide a Customer Service Record from their previous provider that details the following:

a. Customer Account Name
b. Customer Account Address
c. Customer Account Number
d. List of telephone numbers porting to CNI-Independents

i. Services and accompanying equipment to be provided by CNI-Independents
ii. Customer contact information that includes telephone number and valid email address

6. Emergency Calling Service. This Service does NOT support traditional 911 access to emergency services. Customer must inform any guests or other third persons who may be present at the physical location where you use the Services to the non-availability of traditional 911 dialing from your CNI-Independents’ Service.

a. may not be available during an electrical power outage affecting the Service location;
b. will not be available if Customer’s broadband connection service has been disrupted and not restored;
c. will not be available if Service has been discontinued for any reason, including Customer nonpayment;
d. may not be available at locations other than the location for which a Service address has been furnished to CNI-Independents;
e. may not be available or may be routed to emergency personnel unable to respond, if Customer has moved phones to a location other than one for which a Service address has been provided to CNI-Independents;
f. requires re-activation if you move;
g. emergency personnel may not be able to identify your phone number to locate you or to return your call;
h. may be delayed or unavailable due to network congestion or other problems affecting the network.

CNI-Independents does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional E911 services.

7. The Features included as part of CNI-Independents Hosted Virtual IP-PBX Basic Service offering shall be determined at CNI-Independents’ sole discretion and are subject to change from time-to-time. Hosted Virtual IP-PBX supports additional features, which CNI-Independents offers as Feature Set Enhancements. Feature Set Enhancements are available upon request, and may result in additional one-time and/or recurring fees.

V. Use of Service

1. The Customer will ensure that the Customer Equipment is in proper working order and complies with all applicable standards and approvals for connection to the telecommunications network. The Customer will not do anything that may damage or affect the operation of the telecommunications network.

2. The Customer is responsible for all use made of the service under its control and will ensure that the Service is not used either by the Customer or any third party for any fraudulent, criminal, defamatory, offensive, obscene or abusive purpose or to promote any illegal activity or so as to constitute a violation or infringement of the rights of Independents or any third party. The Customer agrees to comply with all applicable laws and regulations and all reasonable instructions of CNI-Independents in relation to its use of the Service and the Service Equipment.

3. If the Service is to be used to carry alarm signals, then CNI-Independents will not accept responsibility for lack of Service or failure to deliver an alarm signal due to

a) the network going down;

b) suspension of the Customer’s account;

c) reasons outside of CNI-Independents’ reasonable control, including but not limited to, any technical failure of the network because the network is being tested, modified or maintained or if access to the network is denied.

4. CNI-Independents will have the right to recover all reasonable costs incurred in investigating or remedying any fault with the Service where it is caused by the Customer’s negligence or default or by the customer failing to follow instructions from CNI-Independents, by the Customer Equipment or where the fault does not lie with CNI-Independents or any Service Equipment.

5. The Customer shall not sub-license, re-sell or offer in any manner, to a third party, the Service or use of or access to the Service, whether for commercial gain or otherwise.

VI. Long Distance Service

1. Hosted Virtual IP- PBX Service includes an allotment, as set forth in the SOA, of inbound and outbound domestic long distance calling minutes subject to the limitations and usage requirements described below. Charges for international long distance calling will be billed at the then-current service rates.

a. Minutes of Use in excess of the allotment (Overage) shall be billed at the per minute of use (MOU) rate set forth in the SOA.
b. The minimum charge for a call is sixty (60) seconds, and each call will be billed in sixty (60) second increments – rounded up to the next whole minute.
c. Directory Assistance (411 or NPA 555-1212) will be charged at the then-current service rates unless specifically stated otherwise in the SOA.
d. Conference Calling charges will be billed at then-current service rates unless specifically stated otherwise in the SOA.

VII. Data Services

Dedicated Internet Access (DIA) service can be provided with the Hosted Virtual IP-PBX Service. If such service is provided, the applicable product-specific terms and conditions relating to these offerings shall apply.

VIII. Customer – Provided Equipment.

CNI-Independents, as a standard practice, does not provide equipment with its Hosted IP-PBX offering. In the event that the Customer requests CNI-Independents to provide equipment with the Hosted IP-PBX offering, it will be as a one-time sourcing service or under an equipment lease agreement, whereby the terms and conditions associated with such a lease will be covered under an Equipment Lease Terms of Service document.

The customer or its designee shall furnish maintenance of their Equipment when required, provided that their Equipment is used in compliance with CNI-Independents’ normal operating instructions, including the provision of replacement hardware and/or software. Failure of customer-provided equipment may negatively impact and/or result in significant or total loss of service for an extended period of time until customer or designee provides replacement hardware or software and restores service.

IX. Customer Moves, Adds, and Changes & Upgrade Policy

Customer must designate one Office Administrator and one Office Administrator back-up that will contact CNI-Independents to report issues or to request changes to the Hosted IP-PBX Service. CNI-Independents will provide Customer with an order confirmation and a requested service date. The following remote Moves, Adds, and Changes (“MACs”) are included in the Hosted IP-PBX Service program:

1. Telephone button programming (e.g. user extension, auto dial button)
2. Station name change
3. Telephone set coverage / “ring to” change (e.g. call forwarding, busy no answer, etc.)
4. Call Restriction change
5. Hunt Group change
6. Company Directory
7. Password resets
8. Voicemail – Programming change
9. Incoming call routing

Note that certain software changes may require a reboot of the system to take effect. Moves, Adds, and Changes not listed above will be charged at the then current service rates.

X. Proactive Monitoring and Alerting

1. Monitoring. CNI-Independents will conduct monitoring of critical IP-PBX system components through intermittent polling.

2. Hosted IP-PBX Service Monitoring Repair Response Intervals. CNI-Independents’ Hosted IP-PBX Service Monitoring Repair Response interval is measured from the time CNI-Independents is notified via monitoring system alarm. Hours are stated in Section X, Coverage Hours. CNI-Independents’ response to monitoring system alarm will include initial diagnosis of issue by remotely accessing the Equipment or by dispatching technical resources. If CNI-Independents determines that the issue is related to network services, resolution may include the reboot of PBX and/or auxiliary servers or appliances prior to the dispatch of technical resources to the Customer’s premise. Service and Support work will be performed during Customer’s specified coverage hours. CNI-Independents’ response intervals are stated below:

a. Priority 1: Within (8) hours of receipt of a system monitoring alert
b. Priority 2: Within (24) CNI-Independents’ business hours of a system monitoring alert

3. Customer-provided Equipment. Customer-provided equipment, over and above the equipment provided by CNI-Independents under the Hosted Virtual IP-PBX Service, will not be monitored unless the Customer enters into a separate agreement with CNI-Independents for such device monitoring services.

XI. Additional Customer Responsibilities

1. Customer will cooperate with CNI-Independents or CNI-Independents’ contractors or agents as reasonably necessary for CNI-Independents’ performance of Services in a timely manner. This cooperation includes:

a. providing CNI-Independents or CNI-Independents’ contractor or agent with access to all facilities, Equipment, hardware, software, work space, and office support (telephone, Internet access, etc.);
b. ensuring that the premises are safe, free of any hazardous materials and have installed necessary power and grounding and climate control facilities;
c. ensuring that Customer has obtained connection to and all necessary permissions, licenses, permits or consents from any public or private telephone network to which the supported Equipment are connected and any necessary permissions, licenses or permits from any federal, state or local government or regulatory authorities;
d. providing CNI-Independents with designated points of contact; and
e. providing necessary telephone numbers and passwords to enable remote access to the supported Equipment and notifying CNI-Independents promptly of any changes made to such numbers or passwords. Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices. All items to be provided by Customer are at Customer’s expense.

2. Where Customer is to provide CNI-Independents with information or access in relation to any third party products or the integration of supported Equipment in Customer’s network (including without limitation specifications and interface information of interoperating hardware and software in Customer’s network), then information or access will be supplied to CNI-Independents in a timely manner at Customer’s expense. It will be Customer’s responsibility to obtain any consents and licenses of third parties that may be necessary for the provision of such information or access to CNI-Independents for CNI-Independents’ use in its performance of the Services.

3. Costs incurred by CNI-Independents due to non-performance by Customer or Customer’s vendor(s) may result in additional charges and / or delay in installation and cutover. Customer hereby agrees to promptly pay CNI-Independents for such applicable charges.

XII. VoIP – LAN / WAN Infrastructure

1. Customer is responsible for the design, management, performance and on-going service and support of their corporate and / or remote office local area networks, including the physical station-level cabling, network IP sub-netting, configuration of VLANS, or establishing VPNs supporting the desktop computers, corporate applications, and peripheral IP equipment.

2. CNI-Independents does not warranty or guarantee connectivity, performance, or QoS for IP Telephony and VoIP applications over non CNI-Independents-provided or approved network and/or Hosted Virtual IP-PBX services.

3. Customer understands that it is Customer’s responsibility to administer and maintain QoS levels within its LAN / WAN / VPN infrastructure.

4. Customer acknowledges its local area network (LAN) and/or wide area network (WAN) user elements may need to be upgraded, redesigned, or reconfigured at Customer’s sole expense in order to support converged IP Telephony and VoIP solutions.

5. Customer understands that any future LAN modifications or data applications may negatively impact QoS and LAN-connected applications and in those instances, Customer may require CNI-Independents troubleshooting, repair and possibly a network assessment at Customer’s expense.

6. Customer is responsible for the installation and deployment of the VPN clients for IP hard and soft telephones.

XIII. Provision of Information, Data Protection and Confidentiality

1. The Customer shall promptly to provide CNI-Independents, at its own cost, with all information and cooperation as it may reasonably require to enable it to perform its obligations under the Agreement and provide the Service.

2. The provision of the Service may involve CNI-Independents in the processing of personal data (as defined in the Data Protection Act 1998) that are under the Customer’s control. In respect of such personal data, CNI-Independents warrants to and undertakes with the Customer that it shall:

a. take appropriate technical and organizational measures against unlawful and unauthorized processing of the personal data and against accidental loss, destruction of and damage to the personal data, alteration or disclosure of the personal data to any third party, this being limited to data within CNI-Independents’ control.
b. take reasonable steps to ensure the reliability of all of its personnel (whether employees or contractors) that may have access to the personal data and to ensure that they are adequately trained in the proper handling of personal data;

c. act only in accordance with the Customer’s instructions in relation to processing the personal data and will not use the personal data for any purpose other than to provide the Service under the Agreement or as may be required by law.
d. CNI-Independents shall keep in confidence all confidential information concerning the Customer’s business, which CNI-Independents may obtain in the course of provision of the Service and shall not use or disclose any such information other than as may be required by law or as necessary in connection with the provision of the Services.
e. CNI-Independents reserves the right to carry out a credit check against the Customer and may register information about the Customer and the Customer’s account with credit reference agencies. CNI-Independents and other lenders may use this information to make credit decisions. This information may also be used to prevent fraud and to trace debtors.
f. For Customers using either the Hosted Call Recording Service, all call records will be deleted on expiration of the retention period (i.e. default of 12 months)

XIX. Payment Card Industry (PCI) Compliance

1. For the avoidance of doubt, CNI-Independents’ solutions are not PCI compliant and should not be used where credit card details are being taken from Customers. CNI-Independents assumes no liability for recordings that contain ACH or credit card details.

XX. Disclaimers

1. Save for the warranties and conditions expressly set out in these Terms and Conditions, CNI-Independents gives no warranty or condition regarding the Service and specifically CNI-Independents:

a. expressly disclaims all conditions and warranties of any kind, whether express or implied, including but not limited to the implied conditions and warranties of satisfactory quality, fitness for a particular purpose, reasonable care and skill and non-infringement;
b. gives no condition or warranty that the Service will meet the Customer’s requirements, will be uninterrupted or timely, will be secure or error free or that defects in the Service will be corrected.
c. The Customer acknowledges and agrees that, in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, condition, warranty or understanding (whether negligently made or not) other than as expressly set out in these terms.

XXI. Service Level Agreement. Credit and Limitations of Liability

1. This clause sets out CNI-Independents’ total liability to the Customer if the Service is not available for a continuous period of 12 hours or more in any one day and that unavailability is attributable entirely due to the fault of CNI-Independents. In such an event, CNI-Independents’ total liability will be limited to the sum of 5% of the charges incurred in the average month for the previous quarter. Such liability will be paid as a credit against the next invoice.

2. CNI-Independents aggregate liability to the Customer under or in connection with the Agreement (whether in contract, tort or otherwise including any liability in negligence) in respect of all causes of action arising in a calendar year will not exceed 60% of the total charges paid or payable by the Customer for the Service in such calendar year.

3. CNI-Independents shall not in any event be liable to the Customer (whether in contract, tort or otherwise including any liability in negligence) for any:

a. loss of revenue, business, anticipated savings or profits, or damage to trading relationships; or
b. indirect, special or consequential loss or damage whatsoever or howsoever incurred by the Customer in connection with the Agreement.
c. In the event of any failure in the Service, CNI-Independents will not be liable to the Customer for any charges incurred by the Customer should the Customer divert its traffic to another service provider.
d. CNI-Independents’ obligations and responsibilities under the Agreement are solely to the Customer and not to any third party and the Customer will keep harmless and will indemnify CNI-Independents, its parent company – CNI, its officers, employees and agents against any liabilities or costs arising from any and all claims by any third party in connection with the use of the Service or any defect in or failure of the Service.