Telecommunications Service Agreement

Telecommunications Service Agreement

AGREEMENT made this , by and between Telecommunications Service Provider ("Maintainor") and Customer.

In consideration of the undertakings, covenants and agreements hereinafter put forth, the parties agree as follows:

1. Service Plan

1.1 Covered Equipment

Maintainor agrees to maintain the equipment and software (the "Equipment") listed from time to time on the Schedules hereto comprising Customer's telecommunications system (the "System") and provide the services indicated from time to time on the Schedules attached hereto.

1.2 Service Personnel

Each service technician used to maintain Customer's Equipment or provide services shall be a qualified Maintainor employee and shall have at least five (5) years experience with installing and maintaining telephone equipment.

1.3 Maintenance Response Obligations

Maintainor shall assign a dedicated on-site technician during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday.

1.4 Additional Maintenance Accessibility

Maintainor agrees that it will have a 24 hour maintenance call answering service available for the Customer's benefit.

1.5 Software Updates

Maintainor shall provide and install at its prevailing rates, any updates to the software for the Equipment.

2. Service Fee

2.1 Agreement Fee

Customer agrees to pay the service fee for maintenance of Equipment as set forth on the Schedule.

2.2 Change in Equipment

Any additions or deletions of Equipment on the Schedules will be reflected and adjusted pro-rata on the following quarter's billing.

3. Term and Termination

The term of this Agreement shall be for a period of one (1) year from the date of execution hereof and thereafter shall be automatically renewed for successive one year periods thereafter unless terminated by either party upon notice.

4. Periodic Review

Periodically, the Equipment will be reviewed by Maintainor and adjustments made for expansion or reductions on an as-needed basis.

5. Exclusion

5.1 Negligence

Service in connection with maintenance or repair of the Equipment caused by negligence or abuse, unexplained loss, fire, flood, wind, lightning, act of God, improper wiring, unauthorized repair or alteration, or unauthorized software changes is excluded.

5.2 Climatic Condition

The Customer is responsible for maintaining a suitable climatic condition for the equipment room housing portions of the System.

6. Force Majeure

If performance is prevented, hindered, delayed, or otherwise made impractical by flood, riot, fire, strike, explosion, war or other reasonable cause beyond the control of either party, both parties shall be excused.

7. Access

Customer agrees to permit and arrange full access to Maintainor's employees, subject to Customer's normal security procedures.

8. Obligations

8.1 Service Hours

Maintainor shall respond to Equipment failures during the hours specified in Sections 1.3 and 1.4.

8.2 Notice

Customer shall notify Maintainor in the event of a failure of any unit of Equipment, and Maintainor shall provide maintenance service therefor.

A. Emergency response within after receipt of notice.

B. Service shall be provided on a basis for all other interruptions of service.

C. Customer may declare an emergency if:
any attendant console cannot place or receive calls ten percent (10%) of telephone or data ports cannot place or receive calls ten percent (10%) of trunks are inoperative

D. Credit amount: not to exceed for each failure to respond.

9. Equipment

9.1 Warranties

Maintainor warrants that it will provide preventive and remedial maintenance for the Equipment so as to meet the standards set forth herein.

9.2 Parts Availability

Maintainor warrants, for a period of ten (10) years from execution hereof, to supply original manufacturer replacement parts for the Equipment listed in the Schedules.

9.3 License

Unless stated otherwise on a Schedule, Maintainor grants Customer a non-exclusive license to operate and maintain software provided hereunder solely to maintain and operate the System.

10. Default

If Customer fails to pay when due or breaches this Agreement, Maintainor may discontinue service or furnish service on a time and materials basis, C.O.D.

11. Liabilities

WITH THE EXCEPTION OF THE WARRANTIES SET FORTH IN HEREIN OR ON A SCHEDULE HERETO, MAINTAINOR DOES NOT WARRANT THE EQUIPMENT OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS.

12. Indemnity; Insurance

12.1 Indemnity

Maintainor agrees to indemnify and save Customer harmless from liabilities, claims, costs, damages and expenses arising from negligence or intentional act or omission of Maintainor, its subcontractors, and their employees.

12.2 Insurance

Maintainor will procure and maintain insurance policies with the following minimum limits:

1. Comprehensive general liability insurance:

2. Worker’s compensation and employer’s liability insurance:

3. Automobile liability insurance:

13. Confidentiality and Non-Disclosure

13.1 Confidentiality

Maintainor acknowledges that Customer, its subsidiaries and affiliated companies are the owners of valuable trade secrets and other confidential information.

13.2 Non-Disclosure

Maintainor agrees not to disclose any Confidential Information or use such information for purposes other than as contemplated by this Agreement.

14. Miscellaneous

14.1 Governing Law

This Agreement shall be governed and construed in accordance with the Laws of the State of New York.

14.2 Conflict of Law

If any provision of this Agreement is in conflict with any statute or rule of law, such provision shall be deemed null and void to the extent that they may conflict therewith.

14.3 Entire Agreement

This Agreement constitutes the entire Agreement between the parties and no modification shall be valid unless made in writing.

14.4 Maintainor Personnel

Maintainor is acting as an independent contractor and shall have exclusive control of the manner and means of performing the work.

14.5 Work Rules

Maintainor's employees, agents or representatives shall observe the working hours, working rules, holiday schedules and policies of Customer while working on Customer's premises.

14.6 Assignment

Neither party may assign this Agreement without the prior written consent of the other party.

14.7 Notices

Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested or by confirmed facsimile transmission.

14.8 Waiver

A failure of either party to exercise any right provided herein shall not be deemed to be a waiver of any right hereunder.

14.9 Most Favored Customer

Maintainor agrees to treat Customer as its most favored customer.

14.10 Compliance

Maintainor's employees, agents and representatives shall comply with all applicable U.S., state and local laws and regulations and union work rules.

14.11 Non-solicitation

Customer agrees not to hire or solicit the employment of any personnel of the other party for a period of six (6) consecutive months thereafter.

14.12 Remedies

The rights and remedies of both parties as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available in law or in equity.

IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the date first set forth above.