Terms and Conditions

Terms of Service (“TOS”)

Services: Services (“Services”) are as set forth on the associated order form (“Order Form”) and are provided by Nationwide Communications Group Inc.  and/or its affiliates and/or subsidiaries (“Company”). Provision of Services is subject to Company tariffs (the “Tariffs”), as modified from time to time, on file with applicable federal and state regulatory agencies. In the event of a conflict between these Terms Of Service (TOS) and the Order Form(s), this Terms Of Service (TOS) shall govern.

Availability of the Services: The Company’s obligation to furnish Services is dependent upon its ability to obtain (i) access to suitable facilities and services without unreasonable expense and (ii) all necessary governmental authorizations. Services may be (i) temporarily refused due system capacity limits or to other circumstances beyond Company’s control or (ii) temporarily interrupted due to facilities modifications, upgrades, relocations or repairs. Company reserves the right to modify Services from time to time. Customer shall obtain no property right in the use of any facility, connection, equipment, number, process or code.

Order Acceptance: No order for Services shall be binding upon Company until such order has been accepted in writing by Company. Company, in its sole discretion, may decline to accept any order for Services. All orders are subject to credit approval.

Term: The initial term shall be as set forth on the Order Form and shall commence on the earlier of (i) the Service activation date or (ii) 15 days after notice by the Company of its readiness to activate Service. The term shall automatically extend for 1 year periods, unless Customer notifies Company in writing of its intent not to renew at least 30 days prior to the end of the current term. Fees may apply in the event that (i) Customer cancels a service order prior to service activation or (ii) if Customer discontinues Services prior to the end of the current term or (iii) Company terminates Services as a result of Customer’s breach of this TOS.

Rates and Charges: Rates and charges for Services are set forth on the Order Form or on Company’s standard pricing list. All listed rates and charges are exclusive of federal, state and local sales, use, value added, excise, duty and other taxes, as well as amounts paid by Company, directly or indirectly, to governmental or quasigovernmental authorities, which amounts may be passed on to Customer by Company, with associated administrative fees. Installation, change, expedite, disconnection, reconnection, repair and other non-recurring charges may apply.

Warranty: COMPANY SHALL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE, BUT MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING SERVICES OR FACILITIES OR EQUIPMENT BY MEANS OF WHICH SERVICES ARE PROVIDED, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY CANNOT AND DOES NOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY GIVEN TIME OR SPEED, OR THE INTEGRITY OF DATA STORED OR TRANSMITTED VIA SERVICES.

Force Majeure: Neither party shall be liable for any delay or failure in performance, other than timely payment of amounts due hereunder, due to Force Majeure, which shall include, without limitation, acts of God, labor disputes, terrorist activities, changes in law or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, third party non-performance, equipment failures, or other occurrences which are beyond the delayed party’s reasonable control.

Limitation of Liability: COMPANY SHALL NOT BE LIABLE FOR DAMAGES, INJURY OR COSTS ARISING OUT OF (I) DELAYS, MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS OR DEFECTS IN TRANSMISSION; (II) INADVERTENT DISCLOSURE, CORRUPTION OR ERASURE OF DATA; (III) SERVICES OR FACILITIES NOT FURNISHED BY COMPANY; (IV) ANY ACT OR OMISSION OF A THIRD-PARTY FURNISHING ANY PORTION OF SERVICES OR FACILITIES USED TO PROVIDE SERVICES; OR (V) ANY EVENT THAT PREVENTS COMPANY FROM PERFORMING OBLIGATIONS UNDER THIS TOS BEYOND THE REASONABLE CONTROL OF COMPANY. COMPANY’S LIABILITY, IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED AN AMOUNT EQUAL TO CHARGES INCURRED BY CUSTOMER FOR THE SERVICE PERIOD IN WHICH THE LIABILITY WAS INCURRED. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ECONOMIC LOSS OR LOSS OF USE, PROFITS, REVENUE, OR GOODWILL, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, EVEN IF COMPANY HAD BEEN ADVISED OF THE POSSIBILITY.

Indemnification: Customer agrees to defend, indemnify and hold harmless Company and its employees, officers, directors or agents from any losses, damages, or costs, including costs and reasonable attorney’s fees, attributed to, arising out of or resulting from Company’s provision or Customer’s use of the Services and/or Equipment.

Call Recording: Customer shall not use Automatic Call Recording, request Provider enable Automatic Call Recording or dial any feature codes to enable Call Recording without written advice of legal counsel.  If enabled Customer agrees to notify all parties at the beginning of each call of the following (a) call may be recorded (b) the contents of the recording shall enjoy no privacy protection (c) all parties who do not understand or agree with these terms shall terminate the call immediately.  Customer shall prominently display warning notices on each Provider device advising employees, contractors and others calls may be recorded and may be made publicly available.   

Taxes and Fees: During the Term, the Customer shall pay all applicable taxes, assessments, and license and registration fees on the Equipment. The Customer shall, on request, provide the Provider with proof of such payments and copies of any tax returns and reports filed or prepared concerning the Equipment.

Option to Renew: If the Customer is not in default of this TOS then the Customer may cancel after the TOS has been fulfilled. At that time with written notice the customer may cancel. Notice of cancellation must be made to the address found at www.ncgus.com  under the “Contact Us” section and sent certified mail with a receiving signature.

ELECTRONIC SINGNATURE: This TOS may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this TOS, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.

Termination: Company may temporarily suspend or permanently terminate Services without notice or liability to Customer (a) in the event that Customer (i) fails to timely pay amounts due to Company, and/or leasing company (ii) provides fraudulent billing information or (iii) violates this TOS, the Acceptable Use Policy, Tariffs or applicable laws or regulations; (b) by reason of an order of a court or other governmental authority; (c) upon institution by or against Customer of a proceeding for relief under the Bankruptcy Code or the appointment of a receiver of Customer’s property; or (d) Company deems such action necessary to protect itself or third parties against fraud or to protect its personnel, agents or services. Company may also pursue such other remedies as may be available to it at law or in equity. Neither termination nor expiration of Customer’s Services shall relieve Customer of liabilities previously accrued hereunder.Acceptable Use Policy: Services shall be used only for lawful purposes. In using Services, Customer shall not engage in any illegal, abusive or unethical activity, including display or distribution of pornography or other obscene, vulgar, profane or sexually explicit

materials, perpetration of fraud, libel, defamation or other violations of privacy, hacking, spreading computer viruses, pirating software or other materials, promoting or conducting gambling, publishing threats or racial, ethnic or sexual slurs or engaging in intimidation or other forms of harassment. Customer shall not upload, post or otherwise transmit any content that it does not have a right to transmit under any law or under contractual or fiduciary relationships, including, but not limited to, insider information, proprietary and confidential information, or content which violates or infringes any copyright, trademark, patent, statutory, common law or proprietary rights of others. Customer shall not transmit unsolicited messages, list Company in any spammed message or reply-to address or send large volumes of unsolicited e-mail to individuals or to individual business accounts.

Additional Customer Responsibilities: Customer shall supply space, equipment, network, wiring and, electrical power suitable for, and compatible with, Company’s provision of Services. Any equipment provided by Company shall remain property of Company and shall be promptly returned to Company in good working order upon termination or expiration of the term. Customer is responsible for all use of Services, with or without its knowledge or consent. Customer is solely responsible for the security of its account, password, files, network and user access. Customer agrees that Company does not monitor, review or restrict information, communications, software, photos, video, music, sounds, services or other material available from third parties via Services (“Content”), and that Customer bears all risks associated with the accuracy, completeness, reliability or usefulness of said Content. Customer shall be liable for damage to Company equipment and network facilities caused by (i) Customer, or Customer’s agents, employees or suppliers or (ii) malfunction or failure of any equipment or facility provided by Customer or its agents, employees or suppliers.

Handset: Customer understands that phones will be configured and programmed by Nationwide Communications, to work only on the Nationwide Communications networks. Once phone(s) have been delivered and installed at the customer’s location, all fees are non-refundable.

Installation: Customer represents that it has or has secured the authority necessary for installation of all equipment necessary to provide Services. Customer shall secure all permits, rights-of-way and other arrangements necessary for such installation. Customer shall allow Company reasonable access to Customer’s premises for equipment installation and maintenance. Customer agrees to pay a fee if (i) Customer cancels a scheduled appointment on less than 24 hours’ notice or; (ii) an Installation Technician is unable to complete installation because Customer is not available and/or unable to grant access to all areas required for successful installation.

Intellectual Property: Company grants Customer a non-exclusive, non-transferable, revocable, limited license to use Services and all hardware and software necessary to access Services, in strict accordance with this TOS, said license to automatically terminate upon termination of Company’s provision of Services to Customer. Title, property rights, software and hardware licenses, including all Intellectual Property Rights (“IP Rights”), shall remain with Company, whether or not embedded in Services. Customer will not acquire or claim any right, title or interest in or to the IP Rights through purchase and use of Services. IP addresses assigned by Company for Customer’s use shall revert back to Company upon discontinuance of Services.

Dispute Resolution: The parties shall attempt to resolve all disputes cooperatively without formal proceedings. Any claim, dispute or controversy (whether in contract, tort or otherwise) relating to the sale or provision of Services or this TOS which cannot be so resolved (other than the collection of amounts due for the Services and requests for injunctive relief) shall be the subject of mandatory arbitration. Such arbitration shall be conducted in accordance with the U.S. Arbitration Act (Title 9, U.S. Code), and under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Wilmington, Delaware. The decision of the arbitrator shall be final and binding upon the parties. Judgment upon the arbitration award may be entered in any court of competent jurisdiction.

Miscellaneous: All notices hereunder shall be in writing and deemed given when received by the party to whom the notice is directed. Customer may not transfer any of its rights or obligations under this TOS without the express, prior written consent of Company. The rights and obligations under this TOS shall survive any merger or sale of a party and shall be binding upon the successors and permitted assigns of each party. This TOS shall be binding upon and inure to the exclusive benefit of the parties hereto, and their respective permitted assigns, heirs, successors and legal representatives. It is not the intent of the parties that there be any third party beneficiaries of this TOS. Unless otherwise provided herein, this TOS and the Order Form may be amended only by an instrument in writing duly executed by both parties. No waiver by a party of a breach of this TOS by the other party shall be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other provision hereof. No failure on the part of either party to exercise, or no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof. This TOS, the Order Form and the Tariffs set forth the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and collateral covenants, arrangements, communications, representations and warranties, whether oral or written, by either party (or any officer, director, employee or representative thereof) with respect to the subject matter hereof. If any provision of this TOS is determined to be invalid or contrary to any existing or future law of any jurisdiction or any order or regulation of a court or governmental authority, such invalidity shall not impair the operation of or affect those provisions in any other jurisdiction or any other provisions hereof which are valid, and the invalid provisions shall be construed in such manner as shall be as similar in terms to such invalid provisions as may be possible, consistent with applicable law. This service arrangement shall be governed by the laws of the State of Delaware without regard to its choice of law provisions. Both parties consent to the jurisdiction and venue of the Delaware courts located in Wilmington, Delaware. All provisions of this TOS which because of their nature continue beyond its term shall be deemed to survive termination or expiration of this TOS.

Authorization to Use CPNI: Customer hereby authorizes Company to use and to disclose and permit access by its affiliates and partners to customer’s Customer Proprietary Network Information (“CPNI”) to enhance Company’s ability to offer products and services tailored to Customer’s needs. CPNI is information that relates to the quantity, technical configuration, type, destination and amount of use of Services by Customer and that is available to Company solely as a result of Company’s provision of Services to Customer. Under federal law, Company has a duty to protect Customer’s CPNI and Customer has the right to prohibit certain uses of its CPNI. Although Customer’s authorization to Company to use, disclose and permit access to Customer’s CPNI will remain in effect until Customer affirmatively revokes such authorization, Customer may withdraw its authorization at any time by notifying Company in writing. Denial of authorization to use, disclose and permit access to Customer’s CPNI will not affect Company’s provision of the Services to Customer.

VOIP Service Warnings: I. E-911. Certain limitations exist in the E-911 service associated with the Company’s VolP services. E-911 service may not be available in the event that you relocate and use the Company’s VoIP-compatible equipment at a location other than your premises. E-911 service will also not be available through the Company’s VolP service if (i) your VoIP-compatible equipment fails, (ii) your broadband connection fails, (iii) you lose electrical power to your VoIP-compatible equipment, or (iv) your VolP, broadband or ISP service is suspended or terminated. Finally, E-911 service may not be available through the Company’s VOIP service (i) if you use a telephone number with your VolP service which is not native to the geographic area in which you are located or (ii) during the period in which the physical location at which you are registered to use your VolP service is being uploaded into pertinent databases. II. Reconfiguration. Installation of VoIP Service may require reconfiguration of the Customer’s LAN, including router and firewall settings. The Company will not be liable for security issues resulting from changes in the Customer’s data network. TERMS SPECIFIC TO Nationwide Communications SERVICE, including service levelassurances, contract termination liability and installation requirements and options, can be viewed at www.ncgus.com