1 This Agreement ( Agreement ) is between LEVEL365 HOLDINGS LLC, and an end user of LEVEL365 s enhanced voice communications services as described below. This Agreement governs both the services described below and any devices, such as IP telephone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device provided by LEVEL365 for use in conjunction with the services, including but not limited to the LEVEL365 Equipment or Device (as defined herein). In this Agreement, you and your mean the customer of the LEVEL365 services defined below, and LEVEL365, we, our, and us mean LEVEL365 HOLDINGS LLC, and any LEVEL365 affiliates authorized to provide you with LEVEL365 services. BY ENROLLING IN, ACTIVATING, USING, OR PAYING FOR THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING THOSE PERTINENT TO 911 EMERGENCY DIALING, AND TO THE PRICES, CHARGES, TERMS AND CONDITIONS PROVIDED TO YOU WITH RESPECT TO THE SERVICE DURING THE SERVICE REGISTRATION PROCESS, INCLUDING MARKETING MATERIALS ASSOCIATED WITH YOUR OFFER, AND ON THE LEVEL365 WEB SITE, ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THE AFOREMENTIONED TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES IMMEDIATELY BY CALLING LEVEL365 AT FOR FURTHER DIRECTIONS. 1) SERVICE DESCRIPTION LEVEL365 s Voice365 IP Communication Service ( VOICE365 IP ) is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol ( IP ) and carried, in part, over high-speed Internet access, also known as broadband Internet service. This service may be generically referred to as Voice over IP. It is separate and distinct from standard LEVEL365 Local, Local Toll and Long-Distance services. "Service" or "Services" is defined to include Voice over IP local and nationwide direct dialed calling within the United States and certain calling and call management features or advanced features associated with the Service, including additional or advanced features, which LEVEL365, in its sole discretion, may add, modify, or delete from time to time. 2) SERVICE REQUIREMENTS Voice365 IP Service requires: (a) an IP telephone obtained through LEVEL365 or an approved third party that is capable of connecting to your broadband connection, or (b) specialized customer premises equipment called a telephone adapter ( TA or LEVEL365 Equipment or Device ) obtained through LEVEL365 or a third party that allows connectivity from a regular telephone handset (which you need to supply) to your broadband connection and which you are responsible for installing yourself pursuant to instructions provided to you by LEVEL365; and (c) a broadband connection via cable modem (2-way cable) or DSL with broadband capability of at least 90 Kbps upstream speed that you have a right to use at your own expense. Since voice over IP is dependent on the broadband connection, the availability of an adequate power supply and correct Device configuration, LEVEL365 does not guarantee that the service will be continuous or error-free. In addition, Service may, from time to time, be interrupted for equipment, network, or facility upgrades or modifications. 3) VOICE365 IP 911 EMERGENCY DIALING a) PLEASE READ THE INFORMATION BELOW ABOUT 911 DIALING CAREFULLY. BY USING AND PAYING FOR THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO ALL OF THE INFORMATION BELOW REGARDING THE LIMITATIONS OF VOICE365 IP 911 EMERGENCY DIALING SERVICE, AND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR e911 CALLS. b) YOU WILL NOT BE ABLE TO PLACE TRADITIONAL 911 OR e911 CALLS FROM TELEPHONES CONNECTED TO THE TELEPHONE ADAPTER PROVIDED FOR THIS SERVICE. YOU ACKNOWLEDGE THAT WE HAVE TOLD YOU THAT THE SERVICE DOES NOT SUPPORT TRADITIONAL 911 OR e911. YOU AGREE TO ADVISE ALL INDIVIDUALS OF THIS LIMITATION WHO MAY HAVE OCCASION TO PLACE CALLS OVER THIS SERVICE FROM THE LOCATION AT WHICH YOU HAVE INSTALLED IT. c) YOU ACKNOWLEDGE AND UNDERSTAND THAT VOICE365 IP SERVICE DOES OFFER A LIMITED 911-TYPE SERVICE BUT YOU ACKNOWLEDGE AND UNDERSTAND THAT SUCH 911-TYPE DIALING DIFFERS IN IMPORTANT RESPECTS FROM TRADITIONAL 911 SERVICE, AS DESCRIBED HEREIN. d) VOICE365 IP 911 EMERGENCY DIALING IS ONLY AVAILABLE ON VOICE365 IP CERTIFIED DEVICES OR EQUIPMENT. 4) 911-TYPE DIALING CAPABILITIES WITH VOICE365 IP SERVICES a) WHEN YOU DIAL 911 ON YOUR PHONE UTILIZING LEVEL365 VOICE365 IP SERVICE, YOUR CALL MAY BE ROUTED TO A DIFFERENT DISPATCHER THAN THAT USED FOR TRADITIONAL 911 DIALING. THE DISPATCHER WILL BE LOCATED AT EITHERA PUBLIC SAFETY ANSWERING POINT (PSAP) OR OTHER PSAP OR LOCAL OR REGIONAL EMERGENCY SERVICE PERSONNEL DESIGNATED FOR WIRELESS SERVICES. IN ADDITION, VOICE365 IP 911 SERVICE HAS FEWER CAPABILITIES THAN TRADITIONAL 911 SERVICE AS FOLLOWS: b) LEVEL365 VOICE365 IP 911 SERVICE WILL NOT FUNCTION IF YOUR TA OR IP TELEPHONE OR DEVICE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF YOUR LEVEL365 VOICE365 IP SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, IN THE EVENT OF A POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF YOUR SERVICE BECAUSE OF BILLING ISSUES. IF THERE IS A POWER OUTAGE, YOU MAY BE REQUIRED TO RESET OR RECONFIGURE THE LEVEL365 EQUIPMENT PRIOR TO BEING ABLE TO USE YOUR VOICE365 IP SERVICE, INCLUDING FOR 911 PURPOSES. c) THE PSAP OR LOCAL EMERGENCY SERVICE DISPATCHER RECEIVING LEVEL365 VOICE365 IP 911 EMERGENCY SERVICE CALLS MAY NOT BE ABLE TO CAPTURE AND/ OR RETAIN AUTOMATIC NUMBER OF LOCATION INFORMATION. THIS MEANS THAT THE DISPATCHER MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE 911 CALL. THEREFORE, IF YOU DIAL 911 USING LEVEL365 VOICE365 IP SERVICE, YOU MUST IMMEDIATELY TELL THE DISPATCHER YOUR LOCATION (OR LOCATION OF THE EMERGENCY, IF DIFFERENT). YOU MUST ALSO TAKE CARE TO NOT DISCONNECT THE LINE, AS THE DISCPATCHER MAY NOT HAVE A PHONE NUMBER TO USE TO CALL YOU BACK. IF YOU ARE UNABLE TO SPEAK AND DESCRIBE YOUR LOCATION, THE EMERGENCY DISPATCHER MAY NOT BE ABLE TO LOCATE YOU. d) FOR TECHNICAL REASONS ASSOCIATED WITH THE POSSIBILITY OF NETWORK CONGESTION, WITH LEVEL365 VOICE365 IP SERVICE THERE IS A GREATER POSSIBILITY THAT YOUR 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER, AS COMPARED TO TRADITIONAL 911 CALLS. e) YOU ACKNOWLEDGE AND UNDERSTAND THAT LEVEL365 WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 USING YOUR SERVICE OR TO ACCESS EMERGENCY SERVICE PERSONNEL DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS DOCUMENT. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS LEVEL365, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THE SERVICE, FROM ANY CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICE OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING. f) YOU ACKNOWLEDGE THAT LEVEL365 DOES NOT OFFER PRIMARY LINE OR LIFELINE SERVICES, AND THAT LEVEL365 STRONGLY RECOMMENDS THAT YOU ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
3 modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If you decide to use the Service through an interface device not provided by LEVEL365, which LEVEL365 reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless LEVEL365 against any and all liability arising out of your use of such interface device with the Service. e) TAMPERING WITH THE DEVICE: You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from LEVEL365 in each instance. LEVEL365 reserves the right to terminate your Service should you tamper with the Device. f) DAMAGED DEVICE: If Customer receives cartons and/or Devices that are visibly damaged, please note the damage on the carrier's freight bill or receipt and keep a copy. Keep the original carton, all packing materials and parts intact and contact LEVEL365's customer care department immediately. If Customer damages the Device, the Customer will be charged for the cost of the Device. 7) TERM and TERMINATION The Initial Term of this Agreement is reflected in the attached Order Form or Appendices. This Agreement renews automatically for successive one (1) month periods at the expiration of the Initial Term, unless canceled in accordance with the termination provisions of this Agreement. Either Party may terminate this Agreement upon expiration of the Initial Term by providing written notice at least sixty (60) days prior to expiration of the Initial Term. Thereafter, either Party may terminate this Agreement by providing thirty (30) days' prior written notice. If the Services are terminated prior to the expiration of the Initial Term then Customer agrees to pay LEVEL365 an early disconnection charge equal to: (i) seventy-five percent (75%) of the monthly recurring charges for the Services multiplied by the number of months remaining in the term of the disconnected Services; (ii) any non-recurring fees LEVEL365 expends or incurs from other party in connection with establishment or cancellation of the Services; and (iii) any outstanding invoices still owed by Customer, due within thirty (30) days of cancellation. LEVEL365 may, upon twenty-four (24) hours written notice, immediately terminate this Agreement for Customer's failure to pay any delinquent invoice. In the event of a breach of any material term or condition of this Agreement by the Customer (other than a failure to pay), LEVEL365 may terminate this Agreement upon thirty (30) days written notice, without further liability to LEVEL365 and pursue such other legal or equitable remedy or relief as may be available to LEVEL365. If for any reason you cancel the Voice365 IP Service or if LEVEL365 cancels the Service pursuant to the terms of this Agreement, Customer is responsible for returning the any LEVEL365 owned Device to LEVEL365. Customer must return the Device(s) undamaged and in original condition within fourteen (14) days of termination. You will be charged a termination fee until the Device is returned and LEVEL365 will not credit the fee to the Customer for the returned Device if the Device(s) is damaged or not in its original condition as received by the Customer. 8) BILLING AND PAYMENT FOR SERVICE a) LEVEL365 will render to you monthly on-line bills for Voice365 IP Service, with the following charges: i) A monthly service fee for local calling, call features, and advanced service; and ii) iii) iv) Long distance and international calls (which are not included in the monthly fee), charged on a per minute usage basis. You can view the rates for long distance and international calls placed over Voice365 IP Service at You may be charged activation, early termination and other fees, as further described at or in the marketing materials pertinent to your offer. The early termination fee applicable to your offer will not apply if you cancel your service more than one year after the date we commence billing for your service. You may incur charges or experience a change in the terms of your plan offer if you change your phone number after your Voice365 IP Service has been activated. Where you have obtained your Device directly from LEVEL365, LEVEL365 also reserves the right to charge for shipping charges associated with the Device. v) LEVEL365 will provide instructions on how to return or dispose of the LEVEL365 Equipment in the event of early termination or end of agreement. YOU MAY BE CHARGED A FEE IF THE LEVEL365 EQUIPMENT IS NOT RETURNED IN ORIGINAL CONDITION. vi) If, in addition, you also receive traditional non-voice over IP LEVEL365 local, local toll and/or long distance services, the charges for these services may not appear on the same online bill. You will continue to be separately responsible for those charges. b) PAYMENT METHOD FOR ONLINE BILLS: You authorize LEVEL365 to charge any amounts payable by you in connection with your use of the Service to the account or automatically by credit card or your account. Your right to use the Service is subject to any limits established by your credit limit or credit card issuer. Your charges and credits issued in accordance with Section 7(a) above will appear on an online (or in the absence of online billing statement, a paper billing statement) billing statement that you may access from the LEVEL365 web site at You give LEVEL365 permission to obtain authorization for use of your credit card from your credit card issuer. c) COMMENCEMENT OF BILLING: Upon installation and testing of the Service ordered in any Customer Order, LEVEL365 will request a written response from Customer to affirm receipt of Service. Unless Customer delivers written notice to LEVEL365 within seventy two (72) hour period after affirming the receipt of Service, that the Service is not installed in accordance with the Customer Order and functioning properly, billing shall commence on the applicable Service Commencement Date, regardless of whether Customer has procured services from other carriers needed to operate the Service, and regardless of whether Customer is otherwise prepared to accept delivery of ordered Service. In the event that Customer notifies LEVEL365 within the time period stated above that the Service is not installed and functioning properly, then LEVEL365 shall correct any deficiencies in the Service and deliver a new receipt of Service to Customer, after which the process stated herein shall be repeated. d) PRICE CHANGES: We may change the prices and charges for the Services and/or international calling from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Services and/or international calling are effective no sooner than fifteen days after we post them on our web site at Increases to charges that recover our costs associated with government programs are effective no sooner than 3 days after we post the increases on our web site. e) CHARGES AND BILLING: Charges accrue through a full billing period. To determine the charge for each international call, we round up to the next full minute for any fraction of minutes used. We will determine the format of the bill and the billing period, and we may change both the bill format and the billing period from time to time. f) FAILURE TO PAY: Upon advance notice, we may suspend, restrict, or cancel the Services and this Agreement, if you do not make payments for current or prior bills by the required due date. Service suspension or cancellation will result in your loss of the number associated with the Service. You acknowledge and understand that service outages due to suspension of your account as a result of billing issues will prevent ALL Services, including 911 or e911 dialing. g) LATE PAYMENT CHARGE: We may add interest charges to any past due amounts at the lower of 1.9% per month or the maximum rate allowed by state law, prorated for each day payment is past due. Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of our rights to collect the full amount of your charges for the Service. Notice of any disputes must be in writing and received by us within 30 days after you received your bill or you will waive any objection. You agree to reimburse us for reasonable attorneys' fees and any other costs associated with collecting delinquent or dishonored payments. If charges cannot be processed
4 through your credit card or if your check is returned for insufficient funds, we will charge you an additional $ If the state law where you receive the Service requires a different fee, we will charge you that amount. h) TAXES AND OTHER CHARGES: You are responsible for, and shall pay, any applicable federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to you as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide LEVEL365 with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date LEVEL365 receives such certificate. i) NO CREDIT ALLOWANCES FOR INTERRUPTION OF VOICE365 IP SERVICE: You acknowledge and agree that the Services are provided as is. Credit allowances for interruption of Voice365 IP Service, including international calling services, will not be provided. 9) INDEMNIFICATION YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD LEVEL365, ITS AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT FOR THE SERVICE, HARMLESS FROM CLAIMS OR DAMAGES RELATING TO OR ARISING OUT OF THIS SERVICE, THE IP TELEPHONE OR TELEPHONE ADAPTER, OR ITS INSTALLATION, OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE LACK OF 911 DIALING OR DIALING ASSOCIATED WITH A SECURITY SYSTEM. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT LEVEL365 SHOULD NOT BE RESPONSIBLE FOR ANY THIRD PARTY CLAIMS AGAINST US THAT ARISE FROM YOUR USE OF THE SERVICES. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER THE AGREEMENT ENDS. 10) LIMITATIONS OF LIABILITY BY ENROLLING IN, ACTIVATING, USING OR PAYING FOR THE SERVICES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE LIMITATIONS OF LEVEL365 VOICE365 IP SERVICE DESCRIBED HEREIN. LEVEL365'S LIABILITY TO YOU ON ACCOUNT OF ANY ACT OR OMISSION OF LEVEL365 RELATED TO THIS AGREEMENT, INCLUDING ACTS OR OMISSIONS RELATED TO 911 DIALING, SHALL BE LIMITED TO ACTUAL DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY LEVEL365'S INTENTIONAL MISCONDUCT OR RECKLESSNESS. EXCEPT FOR DAMAGES THAT ARE THE DIRECT RESULT OF LEVEL365 S WILLFUL OR INTENTIONAL MISCONDUCT, YOU WILL NOT BE ENTITLED TO ANY OTHER DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION. LEVEL365 AND OUR EMPLOYEES, AGENTS, CONTRACTORS AND REPRESENTATIVES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF, ANY OF YOUR SOFTWARE, FILES, DATA OR PERIPHERALS. 11) WARRANTIES EXCEPT AS THIS AGREEMENT EXPRESSLY STATES, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE MATERIALS ACCOMPANYING THE LEVEL365 EQUIPMENT, WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICES OR EQUIPMENT AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, LEVEL365 EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. 12) DISPUTE RESOLUTION BY BINDING ARBITRATION Any dispute or claim between Customer and LEVEL365 arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Indianapolis, Indiana and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join a punitive or certified any class action to of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. Customer acknowledges that this arbitration provision constitutes a waiver of any right to a jury trial. 13) MISCELLANEOUS a) NO THIRD PARTY RIGHTS: This Agreement does not provide any third party with a remedy, claim, or right of reimbursement. b) ACTS BEYOND OUR CONTROL: failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. c) ASSIGNMENT: We can assign all or part of our rights or duties under this agreement without notifying you. If we do that, we have no further obligations to you. You may not assign this Agreement or the Services without our prior written consent. d) NOTICES: Notices from you to LEVEL365 must be provided as specified in this Agreement. Notice from you to LEVEL365 made by calling LEVEL365 at is effective as of the date that our records show that we received your call. LEVEL365 s notice to you under this Agreement will be provided by one or more of the following: posting on our web site, recorded announcement, bill message, bill insert, newspaper ad, postcard, letter, call to your billed telephone number, or to an address provided by you. e) SEPARABILITY: If any part of this Agreement is found invalid, the rest of the Agreement will remain valid and enforceable. f) GOVERNING LAW: This Agreement is governed by the Federal Communications Act to the extent applicable, and otherwise this Agreement will be governed by the law of the State of Indiana, without regard to its choice of law rules, except that the arbitration provisions in Section 11 are also governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services. g) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements or proposals concerning the Service, including representations, whether written or oral. This Agreement can only be amended as provided in Section 7(d) and Section 12(h) herein. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor LEVEL365 is relying on any representations or statements by the other party or any other person that are not included in this Agreement. h) CHANGES TO THIS AGREEMENT: LEVEL365 may change this Agreement from time to time. If we make any changes to the prices or charges, we will comply with our notice commitments described in this Agreement. IF YOU CONTINUE TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICES AFTER ANY CHANGES IN THE PRICES, CHARGES, TERMS OR CONDITIONS, YOU AGREE TO THE CHANGES.
5 SERVICE LEVEL AGREEMENT Availability Guarantee: Data365 T1 or Greater When the service is provisioned at a Customer location over a Level365 provided broadband connection of T1 speed or greater a credit allowance will be given for interruptions in the voice service application preventing inbound or outbound calling on any or all phone extensions or complete outage of any or all voice mail boxes at that Customer location in excess of 30 minutes for each seat affected. The time attributed toward Voice Service Unavailability begins when Customer with Level365 opens the Trouble Ticket reporting the outage and ends when the affected service is again operational. Two or more interruptions of 15-minutes or more during any one 24- hour period will be combined into one cumulative interruption. Length of Interruption Credit Per Seat Affected 30 Minutes to 1 Hour 1/2 Day 1 hour 1 minute to 24 hours 1 Days 24 hours 1 minute or more 3 Days The Voice Service Availability guarantee is subject to the following limitations: 1) Voice Services used at locations other than locations using Level365l provided T1's are excluded from this SLA 2) No credit allowance will be made for any interruption in service: a) Due to the negligence of or noncompliance with the provisions of the Level365 Voice365 IP Terms and Conditions (including its payment terms) b) Due to the failure of power at the customer premise c) Due to the failure of customer premise equipment (CPE) or other Hardware d) Due to the failure of equipment, systems, connections or services not provided by Level365 e) Due to circumstances or causes beyond the reasonable control of Level365 f) During any period in which Level365 is not given full and free access to its facilities and equipment for the purposes of investigating and correcting interruptions 3) Inability to access the Web-based voice portal will not give rise to service credits outlined in this SLA The amount of credit available per month is subject to a cap described in the Agreement. Concurrent Calls Guarantee: Level365 ADSL and SDSL LEVEL365 PROVIDES BUSINESS VOIP OVER ADSL AND SDSL AS A BEST EFFORT SERVICE WITH NO WARRANTIES (INCLUDING WARRANTIES REGARDING CONTINUOUS SERVICE UPTIME OR VOICE QUALITY) EXCEPT THOSE, IF ANY, EXPRESSLY STATED HEREIN. Should a Level365 provided ADSL or SDSL ("DSL") circuit fail to support the Customer's service deployment by not providing sufficient capacity to support the target maximum number of concurrent calls (Target MNCC) stated in the Service Order when there is no other traffic on the circuit, and Customer notifies Level365 of four (4) such failures in any calendar month within five (5) calendar days of each failure, and Level365 is unable to resolve such failure within five (5) business days, Level365 will propose a circuit and/or speed upgrade more suited to the customer's needs. Upon proposal of this upgrade by Level365, Customer must accept or decline such upgrade within twenty-five (25) calendar days. Should customer elect to accept this upgrade, Level365 shall upgrade the circuit and Customer's DSL billing shall be adjusted to reflect the change in service. Should customer decline this upgrade, Customer may cancel its Level365 VoIP service without being charged the termination, cancellation or minimum term commitment fees normally associated with the early termination of the VoIP service. In the event that Customer should elect to decline the upgrade, customer must provide advance notice to Level365, effective within thirty (30) calendar days of Customers receipt of Level365's proposal to upgrade the DSL service, either revising its target MNCC to a lower value, consistent with the actual circuit performance, or canceling the Level365 VoIP service. Should customer fail to report a failure, fail to accept or decline a proposed upgrade or fail to cancel the service or revise the target MNCC within the allotted time(s) as allowed herein, Level365 will determine Customer to have accepted the VoIP service, as is, and Customer will not be eligible for further remedies under this guarantee. The Concurrent Calls guarantee is subject to the following limitations: 1) Voice Services used at locations other than locations using Level365 provided DSL connectivity are excluded from this SLA 2) No allowance will be made for any failures in Concurrent Calls: a) Due to the negligence of or noncompliance with the provisions of the Level365 Business VoIP Service contract (including its payment terms) b) Due to the negligence of or noncompliance with the provisions of the Level365 DSL Connectivity contract (including its payment terms) c) Due to the failure of power at the customer premise d) Due to the failure of customer premise equipment (CPE) or other Hardware e) Due to the failure of equipment, systems, connections or services not provided by Level365 f) Due to circumstances or causes beyond the reasonable control of Level365 g) During any period in which Level365 is not given full and free access to its facilities and equipment for the purposes of investigating and correcting failures h) When failures of the VoIP service not related to the throughput capacity of the DSL circuit i) When concurrent call failure is simultaneous with the transfer of other data on the DSL circuit. In the event that Customer should elect to cancel VoIP service as allowed herein, Customer shall be responsible for all charges for services used, including any and all usage fees and all charges for hardware, and shall continue to be bound by Customers other obligations in regard to other services purchased from Level365, including, but not limited to, those relating to the purchase of the DSL circuit.
6 GENERAL CREDIT AND PAYMENT PROCEDURE To receive credit for the Voice Service Application Unavailability Guarantee, Customer must contact Level365 and open a trouble ticket at the time of trouble. Level365 applies service credits to the Customer's invoice within two (2) billing cycles. Credits are based on the Customer's Basic Phone Extension Fee and may arise from multiple service guarantees outlined in this SLA. The total combined credits applied to the Customer's Level365 Business VoIP Service will not exceed the Basic Phone Extension Fees in any calendar month. For purposes of calculating Service Credit, one (1) day credit of the Level365 service fee is equal to 1/30.33 of the monthly recurring Level365 Business VoIP Service charge at the time of the outage for the Level365 Business VoIP Service Seats adversely affected. The Customer will pay its entire service bill, and shall not setoff any Service Credits it would anticipate receiving from Level365. Customer shall cooperate with Level365 in any Service Claim investigations. To receive Service Credit, Customer must be in good financial standing with Level365 and must be compliant with the terms and conditions of its Level365 Business VoIP Service agreement. A Customer's failure to comply, including without limitation a failure to pay charges on a timely basis, will invalidate the Guarantees. Service Credits delivered as remedies in conjunction with this SLA represent Level365's sole responsibility and the Customer's sole remedy related to Level365's Level365 Business VoIP Service. POLICY CHANGE Level365 reserves the right to change, amend, or revise this SLA policy at any time. Changes or revisions to the SLA will be deemed effective upon posting the applicable revision on Level365's website.