GENERAL TERMS AND CONDITIONS
Any individual or entity receiving any product or service from BlackStone Networks, LLC. (“BlackStone Networks”) shall hereafter be referred to as “Customer.” By accepting products and/or services provided by BlackStone Networks, Customer agrees to observe and abide by all of the provisions, terms, and requirements specified in this Master Service Agreement (the “Agreement”).
1. SERVICE PLANS AND TERM COMMITMENT
1.1 BlackStone Networks shall provide to Customer the services and products (the “Services”) set forth on the schedules attached hereto (the “Schedules”) and in any Customer Order Forms (“COFs”) signed by the Customer.
1.2 Customer can at any time add additional services under this Master Agreement. The Customer agrees that written confirmation via email, fax, mail or web process by a qualified Customer contact will constitute a binding agreement for the additional services requested for the term specified on a COF.
1.3 Termination of a service must be in writing to BlackStone Networks with a thirty (30) day notice, including services provided on a month-to-month term. In the absence of a written notice of 30-day cancellation prior to the end of a service term, the service will convert to a month-to-month term after the end of the initial term with a 10% increase in the monthly rate for the service, unless otherwise specified in the COF.
1.4 Cancellation by Customer prior to any service installation may be subject to a disconnect/cancellation fee. If Customer terminates service after service installation and prior to completion of the term commitment, other than for BlackStone Network’s breach or repeat SLA failures, Customer agrees to pay ALL of Customer’s remaining monthly service fees pursuant to this agreement.
1.5 If a Customer provides notice to cancel a month-to-month agreement with less than thirty (30) days before then end of the monthly service term, services are not prorated, and Customer agrees to pay for thirty (30) days of service.
1.6 Past due accounts are subject to termination by BlackStone Networks without prior notice. To restore service, a $150 reactivation charge will apply. Customer will be liable for all past due charges and any early termination fees if the account is not brought current and service restored. In addition to the charges set forth above, BlackStone Networks may bill Customer for third party charges it incurs to complete Customer’s request to cancel.
2. TERMS OF BILLING AND PAYMENT
2.1 Customer agrees to pay for all Services ordered including taxes, surcharges and fees.
2.2 As compensation for Services provided by BlackStone Networks, Customer shall pay the recurring and non-recurring rates and charges for all services upon receipt of an invoice. Monthly recurring charges will be billed in advance from date of activation and acceptance at BlackStone Networks’ sole discretion. Usage on Services will be billed in arrears. When Service is initiated on other than the first day of the month or terminates on other than the last day of the month, the charge for that month shall be determined by prorating the monthly payment by the number of days during which Service was provided.
2.3 Customer agrees to pay the appropriate monthly charges for the Services, at the address provided by BlackStone Networks, which are due upon receipt of an invoice, unless otherwise agreed in writing. Payments received within fifteen days (15) after invoice date will not be late. Interest, not to exceed 1.5% monthly may be charged on any balance not paid within twenty-five (25) days after invoice date. If the interest rate exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law.
2.4 In the event Customer disputes any billing by BlackStone Networks, Customer shall notify BlackStone Networks in writing as set forth in Section 17 below. No charges may be disputed more than sixty (60) days after the date such charges are invoiced, and if not disputed within that time, they shall be deemed undisputed by Customer. Payment shall not prejudice Customer’s right to dispute charges, so long as they are disputed in the manner and within the time specified in this section. The parties will cooperate in good faith to resolve any such disputes within a sixty (60) day period after the dispute is submitted to BlackStone Networks. If a disputed amount is determined to be a legitimate charge by BlackStone, interest, not to exceed 1.5% monthly may be charged on the unpaid balance, and BlackStone may suspend Service as set forth in Paragraph 2.5 below. If this interest rate exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law.
2.5 If Customer does not make payment of undisputed invoiced charges within the fifteen (15) day period specified above, BlackStone Networks may suspend Service . Following suspension of Service for nonpayment, BlackStone Networks is not required to reinstate Service to Customer until: 1) Customer has paid in full all charges then due, including any late fees and interest charges; and 2) upon the provision by Customer to BlackStone Networks of satisfactory assurance (such as a deposit) of Customer’s ability to pay for Service and Customer’s advance payment for the cost of reinstating Service. If Customer fails to timely cure the nonpayment, Customer will be deemed to have canceled the Service as of the effective date of the suspension.
3. CREDIT APPROVAL AND DEPOSITS
3.1 Customer will provide BlackStone Networks with credit information as requested, and delivery of Service is subject to credit approval. BlackStone Networks may require Customer to make a deposit as a condition to BlackStone Networks acceptance of any customer order, or as a condition to BlackStone Networks continuation of Service. The deposit will be held by BlackStone Networks as security for payment of Customer’s account and any remaining credit balance will be refunded. All deposits held by BlackStone Networks will not be interest bearing.
3.2 Customers that do not qualify for credit terms with BlackStone Networks will be required to prepay for services. Customers will be required to place an initial payment and maintain a positive balance to receive uninterrupted service. Customer will be alerted by email at various balance thresholds (ex. 30%, 10% and 0%). If the balance is allowed to fall to $0, the Customer will be not be able to use BlackStone Networks service until a maintenance payment is made. BlackStone Networks may require that up front and/or maintenance payments exceed one fourth the Customer’s monthly actual or estimated usage.
4. HARDWARE AND SOFTWARE TERMS OF PURCHASE
4.1 Title to equipment purchased from BlackStone Networks shall pass to Customer upon delivery to Customer and BlackStone Networks shall retain liability for delivery and all risk of loss or damage until delivery to Customer. Upon purchase, all such equipment shall be considered Customer Equipment as defined in the General Terms and Conditions.
4.2 All hardware and software purchased through BlackStone Networks is non-refundable. Separate charges apply for all configurations of hardware and software purchased, and will be set forth on an appropriate COF if ordered from BlackStone Networks.
4.3 All new hardware and software purchased through BlackStone Networks comes with the full manufacturer’s warranty. Customer will be provided with the manufacturer’s warranty from the date of purchase of the equipment or applicable service. BlackStone Networks will assist with Vendor RMA of defective or DOA hardware on all new hardware and software purchased for 90 days from the date of purchase. Customer is otherwise responsible for configuration, shipping and warranty of all equipment purchased through a third party, unless otherwise agreed to with BlackStone Networks.
5. TAXES AND UNIVERSAL SERVICE FUND (USF)
5.1 Please be advised that BlackStone Networks is mandated by the FCC to collect Universal Service Fund Fees. Additionally, Federal and State taxes will be listed on Customer’s invoice as a recovery fee. These fees apply to all IP (Bandwidth), DSL, T1, and VoIP services and will be collected on Customer’s invoice and are subject to change as per FCC, Federal, State, and Local increases or decreases. A RRF fee (Regulatory Recovery Fee) may be charged monthly to offset costs incurred by BlackStone Networks in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every phone number assigned including toll free and virtual numbers.
6. CONFIDENTIALITY
6.1 Each party will have access to certain confidential information of the other concerning such party’s business, including such party’s products, services, technical data, trade secrets, inventions, processes, and Customer information. All such information shall be deemed “Confidential Information.” Each party shall use the Confidential Information of the other solely to perform the obligations under this Agreement, including its Schedules and any COFs, and all Confidential Information shall remain the sole property of the respective parties. With regard to Confidential Information, each party shall use the same care as it uses to maintain the confidentiality of its own confidential information, which shall be no less than reasonable care, and shall not make disclosure of the Confidential Information to any third party without the written consent of the other party (the “Disclosing Party”), except to employees, consultants or agents to whom disclosure is necessary to the performance of this Agreement and who are bound by a duty of confidentiality. Information shall not be deemed confidential if it (1) is known to the receiving party prior to receipt from the Disclosing Party as reasonably evidenced by such party; (2) becomes known to the receiving party from a source other than one, to receiving party’s knowledge, who is under an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be confidential other than by a breach of the receiving party; (iv) is independently developed by receiving party other than by a breach of this Agreement.
7. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A BREACH OF CONFIDENTIALITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CUSTOMER OR BLACKSTONE NETWORKS, ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER
THINGS, CONTRACT OR TORT WHETHER OR NOT CUSTOMER OR BLACKSTONE NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. BLACKSTONE NETWORKS’ LIABILITY HEREUNDER SHALL
IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR SERVICES UNDER THIS AGREEMENT, OR IN THE CASE THAT THE CLAIM PERTAINS TO A PARTICULAR SERVICE, THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS (THE “AFFECTED SERVICE”), SUCH AVERAGE MONTHLY CHARGE TO BE CALCULATED DURING THE PERIOD FROM EXECUTION OF THE AGREEMENT. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. EXCEPT AS SPECIFICALLY SET FORTH IN THE SERVICE LEVEL AGREEMENT, THE FOREGOING SETS FORTH CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS AGREEMENT BY BLACKSTONE NETWORKS. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THEREFORE CERTAIN PROVISIONS HEREOF MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE STATES. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS BETWEEN BLACKSTONE NETWORKS AND CUSTOMER AND BLACKSTONE NETWORKS PRICING REFLECTS THE ALLOCATION OF RISK AND LIMITATION OF LIABILITY SPECIFIED HEREIN.
8. INDEMNITY
8.1 Customer agrees to defend, indemnify and hold BlackStone Networks and its affiliates harmless from any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or arising from: (a) any breach of this Agreement by Customer or Users; (b) the use of the Services or the Internet or the placement or transmission of any materials on the Internet by Customer or Users, including but not limited to any Customer Data; (c) acts or omissions of Customer, Customer’s agents or contractors in connection with the installation, maintenance, presence, use or removal of equipment or software not provided by BlackStone Networks in connection with the provision of the Services; and (d) claims for infringement of any third party proprietary right, including copyright, patent, trade secret and trademark rights, arising from the use of any services, equipment and software not provided by BlackStone Networks.
8.2 BlackStone Networks agrees to defend, indemnify and hold Customer and its affiliates harmless from any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or arising from: (a) any breach of this Agreement by BlackStone Networks or its agents or contractors; (b) acts or omissions of BlackStone Networks, BlackStone Networks’ agents or contractors in connection with the installation, maintenance, presence, use or removal of equipment or software provided by BlackStone Networks in connection with the provision of the Services; and (d) claims for infringement of any third party proprietary right, including copyright, patent, trade secret and trademark rights, arising from the use of any services, equipment and software provided by BlackStone Networks.
9. CHOICE OF LAW
This agreement, including its Scheduled and any COFs, shall be construed in accordance with and governed by the internal laws of the State of California without given effect to choose of law.
10. ARBITRATION
Except for ancillary measures in aid of arbitration and for proceedings to obtain provisional or equitable remedies and interim relief, including, without limitation, injunctive relief, any controversy, dispute or claim arising out of or in connection with or relating to this Agreement, or the breach, termination or validity thereof or any transaction contemplated hereby (any such controversy, dispute or claim being referred to as a “Dispute”) shall be finally settled by arbitration administered by Judicial Arbitration & MeDiationtion Services, Inc. (“JAMS”), pursuant to its Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”). There shall be one arbitrator that shall be appointed pursuant to JAMS’s procedures, in each case, within 15 business days of receipt of the demand for arbitration by the respondent(s) in any such proceeding. An arbitration pursuant to this Section 5.4 shall take place in Orange County, California. A final award shall be rendered as soon as reasonably possible and, in any event, within 90 calendar days of the filing with JAMS any demand for arbitration; provided, however, that if the arbitrator determines that fairness so requires, such 90-calendar day period may be extended by no more than 60 additional calendar days. The parties agree that the arbitrator shall have the right and power to shorten the length of any notice periods or other time periods provided in the JAMS Rules and to implement JAMS Expedited Procedures under the JAMS Rules to ensure that the arbitration process is completed within the time frames provided herein. The arbitration decision or award shall be in writing. Judgment on the decision or award rendered by the arbitrator may be entered and specifically enforced in any court having jurisdiction thereof. All arbitrations commenced pursuant to this Agreement or any other related agreement or document shall be consolidated and heard by the initially appointed arbitrator. The arbitration award or ruling shall provide for payment by the losing party of the fees and costs of the arbitration, including without limitation, the reasonable attorneys’ fees and attorneys’ costs incurred by the prevailing parties.
11. ATTORNEY FEES
In any litigation or other proceeding by which one party seeks to enforce its rights under this agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations to the agreement, the prevailing party shall be awarded reasonable attorney’s fees, together with any costs and expenses, to resolve this dispute and to enforce the final judgment.
12. ENFORCEABILITY
If any provision of this agreement is held to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this agreement shall remain valid and enforceable according to its terms.
13. AUTHORITY
Each party represents and warrants that it has the full legal authority to enter into this Agreement and that the performance of its obligations hereunder would not, to the best of its knowledge, violate any law, regulation, or other contract.
14. ASSIGNMENT
Each party represents and warrants that it has the full legal authority to enter into this Agreement and that the performance of its obligations hereunder would not, to the best of its knowledge, violate any law, regulation, or other contract.
15. ENTIRE AGREEMENT
This Agreement, together with the Schedules hereto, any COFs, or any other Service Order(s) and applicable tariffs set forth the entire agreement with respect to the subject matter hereof, and supersede all prior agreements, promises, representations, and negotiations between the Parties. If there is a conflict, the COF or other Service Order shall prevail over this Agreement and any applicable tariff shall prevail over both. Modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by both Parties.
16. FORECE MAJEURE
This Agreement, together with the Schedules hereto, any COFs, or any other Service Order(s) and applicable tariffs set forth the entire agreement with respect to the subject matter hereof, and supersede all prior agreements, promises, representations, and negotiations between the Parties. If there is a conflict, the COF or other Service Order shall prevail over this Agreement and any applicable tariff shall prevail over both. Modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by both Parties.
17. NOTICES
Any notice required under this Agreement must be in writing and be delivered to the receiving Party at the addresses listed below (i) in person, (ii) by certified mail with return receipt requested, or (iii) by overnight courier. A notice is deemed given (i) when delivered, if personally delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, or (iii) at the time the party or its representative executes the delivery receipt, if delivered via courier. BlackStone Networks must provide such notice to Customer’s billing address, and Customer must provide such notice to BlackStone Networks at 151 Kalmus Ave, M2, Costa Mesa, CA 92626, Attn: Ari Benowitz, except that if Customer is disconnecting Services for any reason, it must deliver notice to BlackStone Networks by email to support@blackstonenetworks.com and to its Account Manager, unless not otherwise designated. Notice by email is deemed given when delivered.
18. NO WAIVER
Any notice required under this Agreement must be in writing and be delivered to the receiving Party at the addresses listed below (i) in person, (ii) by certified mail with return receipt requested, or (iii) by overnight courier. A notice is deemed given (i) when delivered, if personally delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, or (iii) at the time the party or its representative executes the delivery receipt, if delivered via courier. BlackStone Networks must provide such notice to Customer’s billing address, and Customer must provide such notice to BlackStone Networks at 151 Kalmus Ave, M2, Costa Mesa, CA 92626, Attn: Ari Benowitz, except that if Customer is disconnecting Services for any reason, it must deliver notice to BlackStone Networks by email to support@blackstonenetworks.com and to its Account Manager, unless not otherwise designated. Notice by email is deemed given when delivered.
19. SURVIVAL
The terms and conditions of this Agreement will survive the expiration or termination of this Agreement to the extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate.
BANDWIDTH SERVICES TERMS AND CONDITIONS
BlackStone Networks’ Network, Access and Interconnection
a) Responsibilities. BlackStone Networks will control the telecommunications equipment, cable and facilities installed and operated by BlackStone Networks for provision of Internet Bandwidth (“Bandwidth”) to Customer (“BlackStone Network”). The BlackStone Network will remain BlackStone Networks’ personal property regardless of where located or attached. BlackStone Networks has the right to upgrade, replace or remove the BlackStone Network in whole or in part, regardless of where located, so long as the Bandwidth Services continue perform. BlackStone Networks has the right to limit the manner in which any portion of the BlackStone Network is used to protect its technical integrity. Customer may not alter, move or disconnect any parts of the BlackStone Network and is responsible for any damage to, or loss of, the BlackStone Network caused by Customer’s (or its end users’) breach of this provision, negligence or willful misconduct. BlackStone Networks has no obligation to install, maintain or repair any equipment owned or provided by Customer, unless otherwise agreed to in writing executed by the Parties. If Customer’s equipment is incompatible with the Bandwidth Service, Customer is responsible for any special interface equipment or facilities necessary to achieve compatibility.
b) Access. Customer must provide BlackStone Networks with reasonable access to its premises to install and maintain Bandwidth Services and the BlackStone Network. Customer must provide, at its expense, the following (collectively “Premise Requirements”): (i) appropriate space, power and environmental conditioning; and (ii) reasonable access rights and/or rights of way from third parties, as may be required for the installation and maintenance of the BlackStone Network at and into Customer’s premises. Customer must pay a Modification Charge if Customer does not provide the Premise Requirements prior to the scheduled installation date. In addition to the Modification Charge, BlackStone Networks may charge Customer for the reasonable time and materials incurred and documented by BlackStone Networks that are incurred because of Customer’s failure to timely provide the Premise Requirement plus any third-party charges assessed against BlackStone Networks. Customer must provide BlackStone Networks with a contact and/or help desk number that can be reached 24 hours per day/7 days per week.
c) Demarcation Point and Inside Wiring. BlackStone Networks shall be responsible for provisioning Bandwidth Service up to the Demarcation Point and Customer is responsible for providing and maintaining any necessary wiring and facilities on Customer’s side of the Demarcation Point, unless otherwise agreed in a COF. “Demarcation Point” means the BlackStone Networks-designated physical interface between BlackStone Networks’ Network and Customer’s equipment, which point shall be either (i) in the case of a Bandwidth Service terminating at a BlackStone Networks owned or controlled premises, BlackStone Networks designated distribution panel or network interface device located within such BlackStone Networks premises or (ii) in the case of a Bandwidth Service terminating at Customer’s premises, the distribution panel or network interface device located at the common telecommunications (“telco”) demarcation at the Customer or end user premises (e.g., entry point for telco facilities, telco closet or common telco room). If requested by Customer, BlackStone Networks may install, coordinate or otherwise arrange for installing or obtaining from third parties, facilities on Customer’s side of the Demarcation Point (“Inside Wiring”).
Installation and Maintenance
a) Installation. BlackStone Networks will notify Customer when the Bandwidth Service has been successfully installed and is available for Customer’s use (“Service Date”). Unless Customer notifies BlackStone Networks by the close of business on the business day following the Service Date that the Bandwidth Service is not operational, the Service Term will commence. If Customer so notifies BlackStone Networks, the Service Date will not occur and the Service Term will not commence until the Bandwidth Service is operating properly. The Service Date will not be delayed or postponed due to problems with Customer’s equipment or Customer’s lack of readiness to accept or us Bandwidth Service.
b) Maintenance. BlackStone Networks will monitor the BlackStone Network 24 hours per day, 7 days per week. Scheduled Maintenance may be performed between the hours of 6:00 p.m. and 6:00am (local time where the maintenance is being performed) unless another time is agreed to by the Parties. BlackStone Networks will endeavor to provide Customer with at least five business days’ notice before performing Scheduled Maintenance unless a shorter notice period is required under the circumstances.
c) Emergency Maintenance. If BlackStone Networks has to perform maintenance outside of the Scheduled Maintenance window set forth above, BlackStone Networks will provide as much prior notice to Customer as is practicable under the circumstances.
Service Levels / Service Outage Credits and Maintenance
a) Service Outage Definition. A “Service Outage” is defined as either: (a) material non-compliance with a specific performance metric in a service level agreement and such non-compliance is caused by the BlackStone Network; or (b) a complete loss of or severely degraded transmission or reception for a Bandwidth Service caused by the BlackStone Network.
b) Service Level Agreement (“SLA”). Credits for Service Outages exceeding thirty (30) minutes will be calculated on a pro rata basis; i.e. credits will be calculated by determining the cost per hour of the service and crediting the pro rata hourly dollar amount equal to the Service Outage duration.
c) Reporting and Tracking of Service Outages. If there is a Service Outage, Customer must contact BlackStone Networks’ at (888) 777-5357 x 1 or by emailing support@blackstonenetworks.com and BlackStone Networks will open a trouble ticket and provide Customer with a trouble ticket number for tracking purposes.
d) Duration of Service Outages and Application of Credits. For calculating applicable credits, a Service Outage begins when Customer reports the Service Outage to BlackStone Networks and ends when the Service is restored. Service Outages do not include outages and failures caused by the equipment, acts or omissions of Customer, third parties, Force Majeure events, or outages occurring during scheduled or emergency maintenance. The duration of a Service Outage does not include any time which BlackStone Networks is not allowed to access to the premises necessary to restore the Bandwidth Service. Credits for Service Outages are only issued if requested by Customer, and such requests must be submitted to BlackStone Networks within 15 days from the date Bandwidth Service is restored.
e) Chronic Trouble Services. If two Service Outages have occurred on a particular Bandwidth Service during a 30-day period, and a third Service Outage occurs within thirty days following the second Outage, Customer may terminate the applicable Bandwidth Service without early termination liability, provided that Customer supplies BlackStone Networks with a written termination notice no later than fifteen days following the third Service Outage.
f) Remedies. Notwithstanding anything to the contrary in this Agreement, the remedies set forth in the service level agreement and (a) and (e) above constitute Customer’s sole and exclusive remedy for Service Outages.
Government Regulation – Changes
a) This agreement is subject to all applicable federal, state, and local laws, rules and regulations, and each Party must comply with them in performing its obligations hereunder. To the extent any provision herein conflicts with any applicable law, rule or regulation, such law, rule or regulation will supersede the conflicting provision.
b) BlackStone Networks may discontinue or impose additional requirements to the provision of Bandwidth Service, upon 15 days written notice, if necessary to meet regulatory requirements or if such requirements have a material, adverse impact on the economic feasibility of BlackStone Networks providing the Bandwidth Service. Customer may terminate this agreement without early termination liability if any such additional requirements are materially adverse to Customer.
Voice Over IP (“VoIP”) Services Terms and Conditions
Limitations of VoIP Services
a) 911 Emergency Dialing. Customer acknowledges that BlackStone Networks’ VoIP Services (“VoIP Services”) do not support traditional 911 emergency dialing, whereby calls are automatically routed to an emergency 911 operator with the caller address appearing on the operator’s computer. Every physical location using VoIP requires a 911 solution. BlackStone Networks does offer limited 911 services, in which end user 911 dialed calls are routed to the nearest Public Safety Answering Point office (PSAP). Typically, these calls are answered by the front desk of the PSAP and then routed to an emergency operator at that location. However, some PSAP’s will not accept calls in this manner. Customer agrees to notify, as appropriate, any of its users of the Services who may place calls using Customer’s phone services of this limitation, and BlackStone Networks recommends Customer maintain an alternative means of accessing traditional 911 services such as traditional telephone services or cellular phone services. VoIP hardware is registered to a specific group that is associated with a physical address. All hardware must be associated with a physical address and must comply with all 911 requirements.
b) Outages due to Electrical, Internet or other General Failures. Customer acknowledges that the VoIP Services will not function in the absence of electrical power, inability to access to the Internet or other general failures associated with the customer’s network over which the VoIP service is provided. Customer acknowledges that the VoIP Services will not function if there is an interruption of Customer’s broadband or high-speed Internet access service.
c) Non-Voice Systems. Customer acknowledges that the VoIP Services are not set up to function with: out-dialing systems, including home security systems; medical monitoring equipment; satellite television systems; and facsimile systems. Customer hereby waives any claim against BlackStone Networks for interruption or disruption of such systems by the VoIP Services.
Tolls
If applicable, every call to or from any equipment using the VoIP Services that originates or terminates in the Public Switched Telephone Network (“PSTN”) is subject to the then-applicable toll charges that are associated with the respective service plan purchased by Customer. Every call to or from any equipment using the VoIP Services that originates or terminates with a SIP service that is not affiliated or associated with BlackStone Networks will also count as PSTN minutes and be subject to the then-applicable toll charges that are associated with the respective service plan purchased by Customer. As applicable, domestic long-distance calls are billed in six (6) second increments, and calls to a phone number outside the contiguous 48 United States to a non-BlackStone Networks account will be charged at the current rates which can be found on BlackStone’s website, or by requesting from Customer’s sales associate or support@blackstonenetworks.com. The duration of each call from the US to an international destination is to be calculated in six (6) second increments after a thirty (30) second minimum. As applicable, calls to Mexico are rounded to the minute. We reserve the right to refuse termination to certain destinations deemed abusive or extraordinary fees without invalidating any other term of this agreement.
Telephone Numbers
Upon termination or expiration of the Services, Customer shall have the right to retain their existing phone numbers and to ‘port’ such existing phone numbers out of the BlackStone Networks’ network.
Prohibited Uses
Any use of the VoIP Services or any other action that causes a disruption in the network integrity of BlackStone Networks or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination for material breach of the VoIP Services.
Customer acknowledges and understands that neither BlackStone Networks nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the VoIP Services. Customer shall not use the VoIP Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network of BlackStone Networks or its vendors. The VoIP Services and equipment shall not be used for certain activities, including any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, or any other activity that would be inconsistent with business usage, unless specifically agreed to otherwise in writing by BlackStone Networks and Customer.
Changes to the Services and Usage Rates
BlackStone Networks reserves the right to make changes to the terms and conditions of this agreement, the included VoIP Services and/or the usage plan (each, a “Change of Service”). In the event of a Change of Service, BlackStone Networks will provide at least 30 days’ advance written notification to Customer. If Customer does not send BlackStone Networks notification of its desire to terminate this agreement before the effective date of such change (pursuant to such notice) or uses the Service after the effective date, Customer shall be deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this agreement, Customer will be responsible for any sums due and has the right to terminate with no cancellation fees or early termination charges. Customer may request a service plan change at any time, subject to any applicable change of service fee and additional terms and conditions. For a change to a plan that requires purchase of additional equipment, an equipment charge may apply. BlackStone Networks may decrease prices for the VoIP Services or plans without providing any prior notice to Customer.
3rd Party Bandwidth
Users may access BlackStone Networks voice services through third party off-network Internet Bandwidth (cable modem networks, DSL networks, cellular data networks or other forms of Internet access). Customer acknowledges that the off-network connections described in the preceding sentence are un-managed services, and BlackStone Networks does not provide or guarantee availability or quality of these voice services. Customer acknowledges that Quality of Service (“QoS”) should be enabled on its third-party equipment to ensure the best performance of the VoIP Services. BlackStone Networks does not support Customer-provided remote equipment such as cable/DSL modems, routers, firewalls, switches or other devices, except as a third-party service provider with such service billed at BlackStone Networks standard hourly rates.
Security and Privacy
BlackStone Networks is committed to respecting Customer’s privacy. BlackStone Network’s Privacy Policy is posted in the BlackStone Networks Web Site. BlackStone Networks, however, utilizes the public Internet and third-party networks to provide voice and video communication services. Accordingly, BlackStone Networks cannot guarantee the security of voice and video communications of Customer.
Toll Charges
Additional Fees will be charged for the following services:
• Directory Assistance (411): $1.25/call
• Operator Assistance: $1.75/call
• Toll Free Inbound: $ .03/minute
• Conference Bridge: $ .04/minute
• International Calling: Per current rate sheet
• North American Calling outside of the contiguous 48 states: Per current rate sheet
• Flat Rate Hosted Overage: $.03/minute
• Fax Overage: $.03/minute
Fraudulent Use of Services
Customer is solely responsible for securing all passwords and access numbers to guard against and prevent unauthorized access to VoIP Services by third parties. Customer is responsible for all charges attributable to Customer incurred with respect to the VoIP Services. In the case of usage-based VoIP Services, Customer is responsible for all usage charges even if incurred as the result of fraudulent or unauthorized use by third parties; except that Customer shall not be responsible for fraudulent or unauthorized use by BlackStone Networks or its employees.
BlackStone Networks, may, but is not obligated to, detect or report unauthorized use or fraudulent use of VoIP Services. Customer agrees to save, defend, indemnify and hold BlackStone Networks harmless from all claims, costs, liabilities and damages arising out of such fraudulent use, unless the fraud was committed by BlackStone’s employees.
Wholesale Termination and Origination Products
Interop Testing: BlackStone Networks will provide the Customer with local connectivity to the appropriate public switched telephone network (“PSTN”) and will deliver voice traffic to the Customer via an internet protocol version based on Session Initiation Protocol (“SIP”) signaling. Prior to the provisioning of VoIP Service, Customer must successfully complete interoperability (“Interop”) testing with BlackStone Networks.
Billing Increments: Calls originating from the 48 contiguous United States, Alaska, Hawaii, Puerto Rico, US Virgin Islands, Guam and Saipan will be billed in 6 second increments with a 6 second initial billing increment. International calling will be billed in 6 second increments with a 30 second initial billing increment. Mexico will be billed in 60 second increments with a 60 second initial billing increment. Call Duration Thresholds: All per minute rates (Interstate LD, Intrastate LD, Local if applicable, 800 Domestic) assume at least 95% of calls terminating will be of a call duration of no less than six (6) seconds in length. If 20% or more of Customer’s completed calls are equal to or less than six (6) seconds in length during any billing cycle then BlackStone Networks reserves the right to charge, and Customer shall pay, a $0.01 charge per short duration call. This charge will be in addition to Customer’s current rates. BlackStone Networks reserves the right to deny service, charge penalties or alter the Customer rate deck if call duration thresholds exceed 20% for more than one billing cycle.
ASR (Answer Seizure Ratio): All per minute rates assume no less than a 60% Answer Seizure Ratio. BlackStone Networks reserves the right to deny service, charge penalties or alter the Customer rate deck if the ASR is lower than 60% for one or more than one billing cycle.
Call Rating: BlackStone Networks will determine the terminating carrier by evaluating the Terminating ANI down to the NPA-NXX-X level. BlackStone Networks will employ an LNP “Dip” (query a LNP database) to identify carriers for billing and bill verification.
Managed Network Service Terms and Conditions
1. Scope of Managed Network Services
BlackStone Network’s Managed Network Service includes information technology monitoring, maintenance, inventory tracking, management and priority scheduling for all devices, services or applications specified on a COF or otherwise agreed to in writing. BlackStone Networks delivers this service through its Network Operations Center (“NOC”), which provides customers that have contracted for this service with a single touch point to monitor, communicate, and resolve complications with their network infrastructure and focuses on the efficient and timely handling of each incident as it is reported.
Provided that the customer remains in material compliance with its contractual obligations to BlackStone Networks, including those obligations set forth in Section 4 below, BlackStone Networks shall provide information technology monitoring, maintenance, inventory tracking, management and priority scheduling for and on behalf of customer. BlackStone Networks is also available to provide remote and onsite support as specified in a COF.
2. Service Level Agreement
The Service Level Agreement (“SLA”) that BlackStone Networks will perform to is as set forth below. The SLA describes the process, the response time, and other related customer expectations for Managed Network Services for all devices, services and applications that will be supported.
2.1 Maintenance. BlackStone Networks will provide maintenance of devices, services, and/or applications as follows:
2.2 Reporting. BlackStone Networks will provide Quarterly Summarization Reports via email to a customer designated representative to include:
2.3 Incident Management and Service Requests. A customer may request that an incident be serviced under the Managed Network agreement, but it must first be reported to the BlackStoneNOC via the following methods and only by a customer’s authorized representative:
In addition, BlackStone Networks may install monitoring tools in the customer’s network so that when a specified monitoring incident occurs, automated e-mail notification will be sent to the NOC, as well as an email address or distribution list as specified by the customer. In regards to monitoring, an incident is considered a service, interface, or device which is considered down or unreachable.
As an incident is reported to the NOC via the means set forth above, it is reviewed by one of BlackStone Network’s qualified NOC techniciansand a ticket is assigned to either be directly addressed, or escalated to our Level 2 and Level 3 engineers who are focused and specialized in resolving the incident at hand. The overarching goal is to return the network infrastructure to nominal operations as soon as possible to help ensure productivity and business continuity for the customer’s organization.A record is kept of each incident for reporting purposes, and to provide to the customer a report for review with their management.
Customer may also make service requests to the NOC not relating to the devices, services, and/or applications covered under Managed Services. If the customer has signed a COF including IT Support – (“OSC Var”), service requests relating to these uncovered devices, services and/or applications are responded to with best efforts and are a lower priority to Managed Network services (and will be billed at the agreed to OSC Var rates).
2.3.1 Coverage Hours. Coverage hours for the NOC are Monday to Friday, 8 a.m. to 6 p.m. Pacific time, excluding BlackStone Network holidays set forth on Appendix A. After hours, the toll-free support phone number rings to a voice mail, and voice mail messages will be retrieved during the next coverage hour.
2.3.2 Trouble Ticket Generation and Priority Level Assignment. NOC technicians monitor the support queue and create tickets in the order incidents are reported during coverage hours. Each ticket will be assigned a number for tracking purposes.When a ticket is created by one of our NOC technicians it may be assigned one of four incident priorities. Priority 4 is considered the least urgent, while Priority 1 is considered the most urgent. A ticket must be acknowledged and engaged according to the specifications in the Priority Level section listed in Section 2.5below. “Response Time” is defined as the time between a ticket being opened and when a NOC technician performs an initial review of the incident. “Assessment Time” is the time between the Response Time and the time the NOC technician or a Level 2 or 3 engineer generates a resolution plan and scope of work. A ticket must either be resolved or an incident isolated, a resolution plan and Scope of Work (“SOW”) prepared and/or vendor support case opened (if applicable) within the Assessment Time. The ticket will be escalated to BlackStone Networks management if this has not occurred within the required hours. In the event that hardware replacement is necessary, hardware procurement will be dependent on the customer’s previously selected vendor warranty coverage of the identified hardware. If the hardware is eligible for replacement under warranty, the hardware will be pre configured by BlackStone Networks and sent to the customer’s location via BlackStone Network’s selected shipping carrier for a scheduled replacement and turn up during coverage hours.
2.3.3 Summary of Priority Levels
| Priority | Response Time | Assessment Time | Escalation Threshold | Description |
| 1 | Within 1 hour | Best Effort (Target 4 hours or less) | 4 hours | Severe Business Impact
|
| 2 | Within 2 hours | Best Effort (Target 8 hours or less) | 8 hours | High Business Impact
|
| 3 | Within 12 hours | Best Effort (Target 12 hours or less) | 12 hours | Business Impact
|
| 4 | Within 24 hours | Best Effort | 24 hours | Functional Query, Fault or Update
|
By way of example, if a Priority 1 service request ticket is opened at 10 a.m. on Monday, the Assessment time is by 11 a.m. Monday. If a Priority 1 service request ticket is opened at 6 p.m. on Monday, the Assessment Time is by 9 a.m. Tuesday. However, a Priority 3 service request ticket that is opened Friday at 5 p.m. has an Assessment Time by the following Monday at 11 a.m.
3. Supported Systems and Devices
In order forBlackStone Networks to provide Managed Network Services, all of a customer’s devices and applications identified in a COF must be:
In the event of any hardware, software, or system not meeting the above requirements, those items will be automatically excluded from eligibility for Managed Network Services under this Schedule C.
In the event third party vendor support services are required to resolve any issues related to the provision of the Managed Network Services, then these actual costs will be passed on to the customer after first receiving customer’s authorization to involve the third party support services.
4. Other Exclusions
This Schedule Covers and applies to only those services and equipment set forth in a customer COF. It is expressly understood that any and all products and services requested by the Customer that are outside of the Services as set forth in COF are considered out of scope and will be directed to the Customer’s Account Manager. Specific exclusions are:
5. Material Changes
In the event of any substantial change to the monitored network, system or business processes by either Party, said Party will notify, in a timely manner, the other Party in advance prior to implementation of any changes if such changes will have an effect on systems or business processes of the other party.
6. Customer Obligations
6.1.1 Customer Responsibilities. To ensure timely and efficient issue resolution, the customer agrees to the following responsibilities for the provisioning of Managed Network Services:
6.1.2 Network Requirements. In order for BlackStone Networks to provide Managed Services, the customer must ensure the following:
Costs required to bring the customer’s environment up to these minimum standards are not included in BlackStone Network’s Managed Servicers.
BlackStone Networks, during the process of discovery, may identify issues in the customer environment related to these standards. At the customer’s request,BlackStone can provide quotes for the hardware and professional services needed to remediate their environment to reach these minimums.
7. Limitation of Liability
In no event shall BlackStone Networks be held liable for indirect, special, incidental, or consequential damages arising out of the performance of the Managed Network Service or any other reasonably related action or inaction of BlackStone Networks reasonably related to this Schedule C, including but not limited to, loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs. Any BlackStone Networks liability shall be limited to a maximum of one (1) month, per occurrence, of the actual amounts paid by the customer to BlackStone Networks for which damages are proved. This is limited to a maximum of four (4) months of credits over a twelve (12) month period.
Appendix A
BlackStone Networks Designated Holidays