Business VoIP Terms of Service

A. Terms and Conditions:  WiMacTel, Inc. (WMT)  Terms and Conditions are posted on its web site and apply to all Digital Communications Services.

B. Agency:  The Customer hereby appoints WiMacTel, Inc. as its sole and exclusive agent for facilitating all services identified in the Digital Communications Services Agreement (Agreement) and agrees to deal exclusively with WMT in connection with such services.  The Customer shall execute WMT”s standard Letter of Agency.

C. Digital Communications Services:  WMT will arrange for the conversion of the Customer”s telephone service as set forth in paragraph 1 of the Agreement to be provided directly to the Customer under WMT”s price list, plus additional optional features and services requested by the Customer.  The service rate provided in paragraph 1 of the Agreement is stabilized for the term of the Agreement.  The service rate does not include:  1. the FCC federal access charge; 2. federal, state, and local taxes; 3. miscellaneous  surcharges, e.g., USF, 911, TRS; 4. PUC regulatory fees; and, 5. extra optional features.  In the event WMT”s underlying provider(s) withdraws, substantially modifies or curtails services to WMT and does not replace it with a comparable service, as determined at WMT”s sole discretion, WMT may terminate this Agreement with a minimum of (30) days notice to the Customer.

D. Payment:  For the Services, Customer agrees to pay WMT all recurring and non-recurring charges, fees and taxes, (which may include Service installation and implementation charges, measured and usage-based charges, local, long distance, directory assistance and operator services calling charges, and equipment and facilities charges) (collectively the Service Charges) as set forth in the Digital Communications Services Agreement.  Service charges will be billed to Customer on a monthly basis, and are payable upon receipt via credit card placed on file with WiMacTel or via ACH transfer.  Customer may not dispute service charges or request credits more than 90-days from the payment date on invoice for such Service. WMT will charge Customer”s method of payment in advance for each monthly service plan fee, associated taxes and surcharges. WMT will charge Customer in arrears for any usage and calls not covered by Customer”s plan, and immediately on disconnection for any accrued and unbilled amounts and recovery fees or Early Termination Fees (including taxes), if applicable, that are due.

E. Regulatory Classification:  Customer acknowledges that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services that WMT provides and, consequently, uncertainty about what fees, taxes and surcharges are due from WMT and/or its Customers.  Customer agrees that WMT has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to Customer.  Customer hereby waives any claims it may have regarding WMT”s collection or remittance of such fees, taxes and surcharges.  Customer understands that it may obtain a list of the fees, taxes and surcharges that WMT currently collects or passes through by writing to WMT.

F. Limitation on Liability:  The Customer acknowledges that WMT is not liable for any interruption or impairment of service, including the inability to reach 911 or other emergency services, the inability to contact a security system or remote medical or other monitoring service provider or any failure or fault relating to Customer-provided equipment; and, if Customer makes a 911 call during this service interruption interval, Customer may be required to give its physical address and location information to the 911 emergency dispatcher.  Customer acknowledges that the Analog Terminal Adapter (ATA) that has been sold to Customer and that is used to provide Business Phone Service is electrically powered and that the Business Phone Service, including the ability to access 911 services and alarm, security, medical and other monitoring services, may not operate in the event of an electrical power outage at Customer or any End User”s facility; any back-up power supply connected to the ATA may enable service for a limited period of time or not at all, depending on the circumstances, and that the use of a back-up power supply does  not ensure that the Business Phone Service will be available in all circumstances. Customer also acknowledges that, in the event of a loss of power that disrupts the WMT network, the battery or back-up power supply to the ATA will not provide back-up service and the Business Phone Service will not be available. WMT disclaims any and all warranties in relation to the  Digital Communications Services, including, but not limited to, warranties of fitness or merchantability.  Additionally, WMT”s sole obligation for service interruptions or impairments caused by any act or omission of WMT shall be to provide credit for the cost of service on a pro rata basis for the period of interruption or impairment.  In no event shall WMT (or its affiliates, agents, officers, directors, shareholders, or employees) be liable to the Customer for indirect, incidental, special, or consequential damages (including, but not limited to, any claim for loss of services, lost profits, or lost revenues) arising from or relating to the services provided under or pursuant to this Agreement.

G. Indemnification: Customer shall defend, indemnify, and hold harmless WMT, its officers, directors, employees, affiliates and agents, and any other service provider who furnishes services to Customer for WMT”s service, from any and all claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third party or user of WMT”s service, relating to WMT”s service, including, without limitation, 911 Dialing, or Customer”s device(s), or use of WMT”s service by Customer or others using Customer”s account (whether or not such usage is expressly authorized by Customer).

H. Limitation of Service:  The Digital Communications Services does not support the use of auto dialers.  Additionally, WMT has the right to limit the services to reasonable quantities of minutes and messages used or consumed by the Customer based on any committed minutes in the Digital Communications Services Agreement to prevent abuse from excessive usage or fraud and to maintain a high level of service for other WMT Customers.  Any breach of this condition could, at WMT”s discretion, lead to immediate termination of the service at no liability to WMT and payment of all damages incurred.

I. Non-Voice Equipment Limitations: Customer acknowledges that WMT”s service may not be compatible with all non-voice communications equipment, including but not limited to security systems, TTY, medical monitoring equipment, certain versions of TiVo, AOL, Netflix and other streaming services, cable television services, FiOS, satellite television systems, PBX, Centrex, other private telephone networks, or computer modems.  Customer waives any claim against WiMacTel for interference with or disruption of these services and equipment, as well as any claim that WMT is responsible for any disruption to Customer”s business, if applicable.

J. Certain Broadband, Cable Modem, and Other Services: Customer acknowledges that WMT”s service may not be compatible with certain cable broadband service (such as AOL) and certain versions of TiVo. There may also be other services with which WMT”s service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using WMT”s service. WMT does not warrant that its services will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of WMT”s service with any particular broadband service.

K. No Warranties On Service or Software:  WMT makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service or ATA device for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance. In addition, WMT does not warrant that the service, software or ATA device will be without failure, delay, interruption, error, omission, degradation of voice quality, or loss of content, data, or information. Neither WMT nor its officers, directors, employees, affiliates or agents, or any other service provider or vendor who furnishes services, ATA devices, or products to Customer for WMT”s service will be liable for unauthorized access to WMT”s or Customer”s transmission facilities or premises or equipment or for unauthorized access to, or alteration, theft, or destruction of, Customer’s data files, programs, procedures, or information through accident, fraudulent means, devices, or any other method, regardless of whether such damage occurs as a result of WMT’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning WMT”s service or ATA device, if any, by WMT or WMT’s agents or installers are informational and are not given as a warranty of any kind.

L. Money Back Guarantee: WMT offers a Money Back Guarantee (“MBG”) if Customer terminates service within thirty (30) calendar days from Customer Order Date.  The WMT MBG only applies to the first voice line purchased, not to additional or secondary lines (Add-A-Lines). WMT will refund or credit (i) the VoIP license charge paid by Customer on the first line; (ii) any portion of the ATA charge Customer paid for the first service term; (iii) any taxes Customer paid for the ATA device. The WMT money back guarantee does not apply to any charges for international usage, payphone calls to WMT toll free numbers, directory assistance and any features or services not expressly included in Customer”s monthly plan fee. In addition, WMT may not be able to refund all of the taxes paid by Customer. Charges for usage, services, and features outside of Customer”s plan are separately billed and charged to Customer”s payment method shortly after cancellation. If Customer has a billing dispute following the termination of its account, please contact WMT at 1-855-662-8094.  WiMacTel has the right to discontinue or revoke its thirty (30) day MBG at any time, without prior notice.

M. Service Continuation and Early Termination:  This Agreement is for the term stated in the Service Agreement and will automatically renew for additional terms of the same duration as the initial term, unless either party notifies the other in writing thirty (30) days prior to the renewal date of each term of its desire that this Agreement not be renewed or extended.  WMT requires a 30 day written notice to terminate services.  In the event that a 30 day notice is not received, WMT must bill for a minimum of thirty days from the date of notification of disconnection or transfer.  Any Customer who terminates the Agreement prior to the expiration of its stated term shall be subject to the termination charges on each equivalent business line removed.  Termination charges are equal to the number of equivalent business lines removed, times the equivalent line-rate, times 100%, times the number of months remaining in the term.  The service implementation fee is due in full if service is terminated for any reason prior to the end of the Agreement initial term.  The early termination liability and service implementation fee will be billed on the next WMT billing invoice and the Customer agrees to pay WMT such amount upon receipt of invoice.  Customer may terminate this Agreement without penalty for cause, provided written notice specifying the cause for termination and requesting correction within thirty (30) days is given and such cause is not corrected within such thirty (30) day period.

N. Equipment:  WiMacTel will sell to the Customer an Analog Terminal Adapter (ATA) to accommodate the VoIP Digital Communications service and Customer will allow WiMacTel access and usage of the ATA without expense.  The ATA will be billed in accordance with the rates in paragraph 1 of the Agreement and a corresponding credit will be issued based on the Length of Term stated in paragraph 2 and the corresponding credit amount stated in paragraph 1 of the Digital Communications Services Agreement.  If the Customer terminates the Agreement without cause prior to the end of the initial stated length of term, a monthly amortized amount based on the initial length of term will be charged to the Customer and immediately due and payable by the Customer for the remaining number of months in the original length of term.

O. Payment Terms: The Customer agrees to pay its monthly bill in full by the due date indicated on the bill via credit card placed on file with WiMacTel, Inc. or via ACH transfer.  WMT reserves the right to terminate the Customer”s services if the Customer”s monthly bill becomes delinquent.  The Customer acknowledges that it is solely responsible for all local charges, long distance charges, miscellaneous charges, taxes, and directory assistance charges.  If the Customer fails to pay its bill in a timely manner, then WMT may initiate action to collect all amounts owing including early termination damages and late charges.  In the event WMT initiates any collection action, the prevailing party shall be entitled to recover its costs and reasonable attorney fees, including fees on any appeal.  All amounts due, damages, costs, and attorney fees awarded to WMT shall bear interest at the rate of 1.5% per month until paid in full.

P. Modifications:  This agreement shall not be amended or changed unless agreed in writing and signed by both parties.  Additional services may be provided during the term of this Agreement upon the mutual written agreement of both parties.  Such additional services will be deemed part of this Agreement.

Q. Successors:  This Agreement shall be binding upon and shall inure to the benefit of WMT and the Customer and their respective successors and assigns, including any future owners, beneficiaries or lessees of the Customer location.  If the Customer”s business is sold, and if the new business owner assumes this Agreement, or executes a new WMT Agreement, any early termination charges due from the original Customer will be waived.

R. Governing Law:  This Agreement shall be governed and construed in accordance with the laws of the State of Texas.

S. Entire Agreement:  This Agreement, together with the documents referenced herein, constitutes the full and complete understanding between the parties, superseding any other agreements relating to these subjects.  There are no binding verbal or implied agreements not contained in this document.  If any provision in this Agreement is held by a court to be invalid, void or unenforceable, the remainder of the Agreement shall nonetheless remain unimpaired and in effect.