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This is an agreement between a telecommunications company and a customer for telecommunication services. The specific services the telecommunication company will provide can be included under “Exhibit A” of this agreement. In addition, this agreement specifies the term of the agreement, compensation rates, payment due dates, termination procedure, and limitation of liability. This agreement can be used by individuals or small businesses that want to engage the services of a telecommunications company, or it can be used by telecommunications companies that want to provide their consumers with an organized agreement.
This is an agreement between a telecommunications company and a customer for telecommunication services. The specific services the telecommunication company will provide can be included under “Exhibit A” of this agreement. In addition, this agreement specifies the term of the agreement, compensation rates, payment due dates, termination procedure, and limitation of liability. This agreement can be used by individuals or small businesses that want to engage the services of a telecommunications company, or it can be used by telecommunications companies that want to provide their consumers with an organized agreement. Telecommunications Services Agreement This Telecommunications Services Agreement (the "Agreement") is made and entered into on ____________________ [Instructions: insert date] ("Effective Date") between ____________________ [Instructions: insert name of client] (the "Client"), with its principal place of business at ____________________ [Instructions: insert address], and ____________________ [Instructions: insert name of client] of ____________________ [Instructions: insert address] ("Provider"). RECITALS WHEREAS, Client desires to receive from Provider, and Provider desires to provide Client with telecommunications services. Therefore, the parties hereto agree as follows: 1. Grant of License. A. Effective upon payment of fees due hereunder and Initialization, Provider grants to Client a non-exclusive, non-transferable, license for Client to access and use the telecommunication services, for the Term of this Agreement, from within the United States, in strict accordance with the terms of this Agreement solely for its internal operations. All rights not set forth in this license are reserved by Provider. Use by any non-Client is prohibited. B. Client acknowledges that the telecommunication services and its structure, organization, and source code constitute valuable trade secrets of Provider. Accordingly, Client shall not have access to the source code of the telecommunication services and agrees not to (a) modify, adapt, alter, translate, or create derivative works from the telecommunication services; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the telecommunication services; or (c) otherwise use the telecommunication services except as expressly allowed in this Agreement. C. Provider retains and reserves exclusive ownership of all worldwide copyrights, trade marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the telecommunication services All rights in and to the telecommunication services not expressly granted to Client in this Agreement are reserved by Provider. D. Client shall not use the telecommunication services in a way that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other computer crime regulations, etc. Provider does not monitor or edit any transmissions, postings, routings or other materials which Client may send, post, route, transmit or otherwise move through the telecommunication services. Client will defend, indemnify and hold harmless, including attorneys fees, Provider, its officers, contractors, agents and employees, from and against any violation of such laws or regulations by Client, Client, Retail Client, Consumers or any of its agents, officers, directors, contractors or employees. 2. Term and Termination. A. This Agreement shall commence as of the Effective Date and shall continue in effect for a period of ____ [one (1)] [Comment: This number is not provided for by law, but can be any number the user chooses] year (the "Term"). B. In the event that either party materially breaches any term or condition of this Agreement, and such breach continues for a period of ____ [twenty (20)] [Comment: This number is not provided for by law, but can be any number the user chooses] days after notice from the other party, the other party may terminate this Agreement immediately upon notice. C. In the event of termination of this Agreement, any amounts owed to Provider under this Agreement before such termination will be immediately due and payable, any licenses granted in this Agreement will immediately cease to exist, and Client shall promptly discontinue all use of the telecommunication services. 3. Support Services. A. Provider shall provide support services for the telecommunication services furnished to Client under this Agreement, pursuant to the terms contained herein. i. Client shall have access via _________________ [Instruction: set forth means of access to help] to a Help Desk from _________________ [Instruction: insert times and days when help is available]. The Help Desk will be responsible for facilitating services and difficulties with telecommunication services functionality. A Help Desk coordinator will be responsible for logging and tracking errors after they have been reported by Client and determine the priority level of the error. B. Client may obtain customizations to the telecommunication services at the rate of $_________________ [Instruction: amount] per hour. Provider may, at its discretion, upon notice to Client and with no additional charge, make modifications to the telecommunication services. Client shall have the right to obtain access to updates at no additional charge. C. Client agrees to: i. Inform Provider in writing of any modifications made by Client to the operating telecommunication services software configuration or any Client telecommunication services which might cause errors in the telecommunication services. In this circumstance, Provider shall not be responsible for improper functioning of customizations or errors and Client may have to incur additional cost to repair. ii. Promptly communicate to Provider all errors by emailing a report of the problem. iii. Promptly install solutions sent by Provider to remedy malfunctions. iv. Comply with any other reasonable request of Provider in connection with the performance of services hereunder. © Copyright 2011 Docstoc Inc. 3 v. _____________________________________ [Instruction: set forth any additional requirements for Client]. D. Client recognizes that Provider, after using all reasonable efforts, may not be able to resolve an error identified hereunder and that such inability shall not be considered a breach or event of default under this Agreement, nor be the cause of any liability to Client. In the event that Provider notifies Client that it will be unable to correct an Error in the Telecommunication services, Client may at its option, and as its sole and exclusive remedy, terminate this Agreement. E. Provider shall have no obligation to fix Errors in any version of the telecommunication services other than the most current version of the telecommunication services and the immediately preceding version of the telecommunication services. 4. Fees. A. Telecommunication services Fees. i. Initialization Fees. Client agrees to pay the following non-refundable initialization fee for initialization of the telecommunication services. The initialization fee is equal to ____ [two (2)] [Comment: This number is not provided for by law, but can be any number the user chooses. User may choose to have no initialization fee] months of service. ii. Monthly Fees. Client agrees to pay the following flat non-refundable Monthly Fee for use of the Telecommunication services as outlined herein: ________________ [Instruction: set forth monthly fee] B. Taxes. Client shall pay for sales tax and any other taxes imposed on Provider arising from this Agreement, excluding U.S. income or comparable taxes. C. Client shall pay the Initialization Fees within ____ [thirty (30)] [Comment: This number is not provided for by law, but can be any number the user chooses] days of the effective date of this Agreement. All other fees and payments shall be due within ____ [thirty (30)] [Comment: This number is not provided for by law, but can be any number the user chooses] days of invoice from Provider. Interest on late payments shall accrue at the rate of ____% [six percent (6)] [Comment: This number is not provided for by law, but can be any number the user chooses] per annum or the highest rate permitted by law from the date such amount is due until finally paid. 5. Non-Disclosure. Neither party shall disclose or use for any purpose except as outlined hereunder (i) the financial terms of this Agreement, (ii) the technology, ideas, formulae, know how, procedures, algorithms and trade secrets embodied in the telecommunication services, technical documentation, user manuals and other deliverables, (iii) Client data; (iv) ______________________ [Instruction: set forth any additional restrictions] and/or (v) any other information, whether in written or magnetic media, that is identified as confidential; except such information that (a) is known to either party prior to its first receipt © Copyright 2011 Docstoc Inc. 4 of such information, (b) is generally known to the public prior to its receipt by Client, (c) becomes available to the public other than as a result of a disclosure by either party; (d) is required to be disclosed pursuant to an applicable law or by order of any court or governmental agency; or (e) is independently developed by either party without reference to confidential information. 6. Warranties. A. Telecommunication Services Warranty. i. The parties understand that it is not possible to exclude technical software problems, interruptions in access or use, or cure all defects. Provider does not warrant the absence of any defects, operation without any interruption or the ability to operate the telecommunication services software or telecommunication services. ii. If, during the period of ____ [thirty (30)] [Comment: This number is not provided for by law, but can be any number the user chooses] days following Client's ability to access the telecommunication services, to the Client (the "Warranty Period"), is not in substantial conformity with the telecommunication services description written notice thereof shall be given to Provider promptly during the Warranty Period. iii. Any warranty by Provider shall not apply to any error which is caused by Client or third parties and for any breakdown and error due to improper use, improper installation, improper handling or maintenance (unless done by Provider), improper operating means, modifications of the Telecommunication services. B. Provider Representations and Warranties. Provider represents and warrants that: (i) it has the right, power and authority to enter into this Agreement and to fully perform its obligations hereunder and (ii) its making of this Agreement does not violate any agreement existing between Provider and any other person or entity. C. EXCEPT AS PROVIDED IN THIS AGREEMENT THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. CLIENT RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH PROVIDER WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE TELECOMMUNICATION SERVICES AND SERVICES, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE TELECOMMUNICATION SERVICES OR SERVICES OR WEBSITE SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF PROVIDER WHATSOEVER. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT. D. LIMITATION OF LIABILITY. PROVIDER SHALL NOT BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, © Copyright 2011 Docstoc Inc. 5 BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF PROVIDER HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL PROVIDER'S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO PROVIDER UNDER THIS AGREEMENT. PROVIDER SHALL ONLY HAVE LIABILITY TO CLIENT FOR A PERIOD COMMENCING ON THE EFFECTIVE DATE AND EXPIRING ____ [one (1)] [Comment: This number is not provided for by law, but can be any number the user chooses] YEAR AFTER THE EFFECTIVE DATE. CLIENT ACKNOWLEDGES THAT THE FEES PAID BY IT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. 7. Indemnification. A. Should any portion of the telecommunication services, Website or Services hereunder become, or in Provider's opinion be likely to become the subject of a claim of Infringement, then Provider may, at its option and expense: (i) procure for Client the right to use the telecommunication services free of any liability for Infringement; (ii) replace or modify the applicable portion of the telecommunication services with a non- infringing substitute otherwise complying substantially with all the requirements of this Agreement; or (iii) terminate this Agreement. B. The foregoing shall constitute Provider's sole and exclusive obligation, and Client's sole and exclusive remedy, for any infringement by the telecommunication services. 8. Force Majeure. Either party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity; etc. provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such matter. 9. Promotions. Provider may identify Client as one of its clients in general promotional literature and disclose to current and prospective clients that Provider has provided the telecommunication services to Client. [Comment: user may edit this section to reflect the agreement of the parties] © Copyright 2011 Docstoc Inc. 6 10. Assignment. Either party may assign this Agreement upon sale of greater than ____% [fifteen (15)] [Comment: This number is not provided for by law, but can be any number the user chooses] percent of its assets as part of merger or acquisition. Otherwise, neither party may assign this Agreement and such assignment shall be void. 11. Relationship. Provider and Client are independent contractors notwithstanding any activities set forth in this Agreement. Supplier is not the agent or legal representative of Purchaser and Purchaser is not the agent or legal representative of Supplier, and no Party has the right or authority to bind any other Party in any way. This Agreement creates no relationship as partners or joint venture, and creates no pooling arrangement. 12. Audit. During the term of the Agreement and for a period of ____ [twelve (12)] [Comment: This number is not provided for by law, but can be any number the user chooses] months thereafter, up to once per year, Provider shall have access to such portion of Client's records to allow Provider to determine whether Client is substantially in compliance with this Agreement. Such access shall be under the terms of an appropriate confidentiality agreement executed by the individual(s) conducting such audit if not Provider, or, if Provider, under the confidentiality provision of this Agreement. If Provider determines, after conducting such audit, Client has failed to report and pay for Client or has otherwise exceeded the scope of this Agreement, Client shall pay the cost of the audit and ____%[fifteen (15)] [Comment: This number is not provided for by law, but can be any number the user chooses] of the stated fees due for the such items hereunder. If no deficiencies are discovered, Provider shall pay the costs of such audit. Such payment will not preclude Provider from exercising any right which it may have under the Agreement. Client shall immediately correct any deficiencies discovered in the course of the audit. [Comment: user may edit this section to reflect the agreement of the parties] 13. Survival. All terms of this Agreement, which by their nature are intended to survive termination of this Agreement shall so survive termination. 14. Miscellaneous. This Agreement shall be governed by and interpreted in accordance with the laws internal of the State of ____________________ [Instructions: insert state]. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Telecommunication services and shall not be changed except by written agreement signed by an officer of each party. © Copyright 2011 Docstoc Inc. 7 INTENDING TO BE BOUND, Client and Provider have executed this Agreement on the date set out below and the parties signing below have the apparent and actual authority to bind Client and Provider as applicable. CLIENT By: ____________________ Name: ____________________ Title: ____________________ Date: ____________________ PROVIDER By: ____________________ Name: ____________________ Title: ____________________ Date: ____________________ EXHIBIT A Telecommunication services: ____________________ [Instructions: insert state] EXHIBIT B © Copyright 2011 Docstoc Inc. 8
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