1. Service Orders:
Customer may submit service orders to Victory Telecom to purchase information technology and related services under this Agreement ("Service Orders"). The Service Orders describe the information technology and related services that are available for purchase ("Services"). When fully executed by both Parties, the Service Order(s) provides acceptance of these Standard Terms and Conditions and form the final written agreement between the Parties ("Agreement"). Customer will be responsible for having its own agreement for service orders with the End User in regards to services, pricing and terms and conditions. Services are offered subject to availability, and Victory has the right not to accept a Service Order submitted by Customer. If a Service Order has been accepted by Victory, Victory will provide Services for the term agreed to in such Service Order ("Service Term"). Service Terms are effective upon the turn-up date of the accompanying service. Services may have turn-up dates on multiple dates. As such, each Service is effective for the Term (e.g. 36 months) for each particular service.
2. Term of Standard Terms and Conditions:
The term of these Standard Terms and Conditions will commence upon signature by both Parties and will continue to govern Service Orders entered into by the Parties unless and until the Agreement is terminated in accordance with Sections 12 or 13 herein, or is otherwise superseded by a subsequent written agreement between the Parties. This Master Service Agreement is posted at www.Victory.technology/msa-terms are subject to change at any time. Customer can view the current terms of service anytime at the website address previously stated. By accepting and executing a Service Order and/or accepting or continuing to accept any Victory Technology Service, Customer accepts the Standard Terms and Conditions.
3. "Modification", “Service Move” and "Expedite Charges":
(a) Modification. Customer may request in writing the modification of any Service Order(s). Such request shall result in a Modification Charge. If Victory receives a written modification request for delay of installation less than 3 days prior to the planned installation date, Customer must pay, in addition to the Modification Charge, the monthly recurring charge ("MRC") applicable to the delayed Service for the shorter of one billing month or the period from the original due date to the requested installation date. Victory reserves the right to limit the number of requests to delay the planned installation date. Victory reserves the right to deny modification requests if such request has already been fulfilled upstream by Victory Technology.
(b) Service Move. In the event that End User moves office locations, Customer needs to advise to the End User that internet services are non-transferable/movable to a location other than the original contract office address unless Victory makes an exception. A new internet service contract will be required and the remaining MRC (Monthly Recurring Charges) balance according to contract “Term” on the internet circuit at the original contract address will become due upon move date.
(c) Expedite. Customer may request an expedited installation date. If Victory accepts the expedited installation date, Customer must pay an Expedite Charge.
(d) Third Party Charges. In addition to the charges set forth in (a), (b) and (c) above, Victory may bill Customer for any third party charges it incurs in order to complete Customer's request to cancel, modify, or expedite the Service Order(s).
4. Victory Network, Access and Interconnection:
(a) Responsibilities. The Victory Network will remain Victory's personal property regardless of where located or attached. Victory has the right to upgrade, replace or remove the Victory Network in whole or in part, regardless of where located, so long as the Services continue to perform. Victory has the right to limit the manner in which any portion of the Victory Network is used to protect the technical integrity of the Network. Neither Customer nor End User may alter, move or disconnect any parts of the Victory Network and Customer is responsible for any damage to, or loss of, the Victory Network caused by Customer's (or its end users') breach of this provision, negligence or willful misconduct. Victory has no obligation to install, maintain or repair any equipment owned or provided by Customer, unless otherwise agreed to in a writing executed by the Parties. If Customer's equipment is incompatible with the Service, Customer is responsible for any special interface equipment or facilities necessary to achieve compatibility.
(b) Access. Customer must provide Victory with access to the premises to install and maintain Services and Victory's Network. Customer must ensure that End User provides, 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 Victory Network at and into End User’s premises. Customer must pay a Modification Charge if End User does not provide the Premise Requirements prior to the scheduled installation date. In addition to the Modification Charge, Victory may charge Customer for the reasonable time and materials incurred and documented by Victory that are incurred because of Customer's failure to timely provide the Premise Requirements plus any third party charges assessed against Victory. Customer authorizes Victory and its employees, agents, contractors and representatives to enter premises (the "Premises") to install, maintain, inspect, alter, repair and remove the Victory Equipment. All such services shall be conducted at a time agreed to with Customer. If Customer is not the owner of the Premises, upon Victory's request, Customer shall supply Victory with the owner's name and address, evidence that the Customer is authorized to grant access to the Premises on the owner's behalf, and (if needed) written consent from the owner of the Premises. Customer also grants its consent to Victory to contact such owner for the purpose of entering into one or more Right of Access and/or Site Lease(s). Customer must provide Victory with a primary site contact that will be responsible for ensuring Victory access to Customer premise.
(c) Demarcation Point and Inside Wiring: Victory shall be responsible for provisioning Service up to the Demarcation Point and Customer must advise End User that it is responsible for providing and maintaining any necessary wiring and facilities on End User’s side of the Demarcation Point unless Victory is otherwise contracted to render additional services. "Demarcation Point" means the Victory-designated physical interface between Victory's Network and Customer's equipment, which point shall be either (i) in the case of a Service terminating at an Victory owned or controlled premises, Victory's designated distribution panel or network interface device located within such Victory premises or (ii) in the case of a Service terminating at End User's premises, the distribution panel or network interface device located at the common telecommunications ("telco") demarcation at the End User premises (e.g., entry point for telco facilities, telco closet or common telco room). If requested by Customer, Victory may install, co-ordinate or otherwise arrange for installing or obtaining from third parties, facilities on Customer's side of the Demarcation Point ("Inside Wiring"). Customer agrees to pay Time and Materials rates for any Inside Wiring performed by Victory personnel and agrees that Victory may bill Customer for any third party charges it incurs to provide such Inside Wiring.
(d) Letter of Authorization / Carrier Facility Assignment. If Customer intends to connect the Services to facilities that neither it nor Victory owns, it must provide Victory with and maintain (for the Service Term) a current letter of authorization and carrier facility assignment, as applicable.
5. Installation and Maintenance:
(a) Installation. Victory will notify Customer when the Service has been successfully installed and is available for End User’s use ("Service Date"), Unless Customer notifies Victory by the close of business on the Service Date that the Service is not operational, the Service Term will commence. The Service Date will not be delayed or postponed due to problems with End User’s equipment or End User’s lack of readiness to accept or use Service. Victory has full discretion to move the Service Date of any service based on current implementation schedule as well as the availability of Victory’s employees and/or contractors.
(b) Maintenance: (i) Scheduled Maintenance. Victory will monitor Victory's Network 24 hours per day. Scheduled Maintenance will be performed between the hours of midnight and 6:00 a.m. (local time where the maintenance is being performed) unless another time is agreed to by the Parties for the particular circumstance. Victory 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.
(ii) Emergency Maintenance. If Victory has to perform maintenance outside of the Scheduled Maintenance window set forth in Section 5(b)(i) above, then Victory will provide as much prior notice to Customer as is practicable under the circumstances.
6. Charges, Billing, Taxes and Payment:
CUSTOMER IS FULLY RESPONSIBLE FOR PAYMENT OF ALL CHARGES REGARDLESS OF END USER PAYMENT STATUS. If Customer is past due in payment or is deemed by Victory to be a liability, Victory reserves the right to absorb End User as its own and transfer all End User contractual obligations to Victory. Customer must in their terms and conditions with End Users advise that Victory Telecom, LLC d/b/a Victory Technology reserves the right to absorb End User as a Customer and End User will be subject to the Standard Terms and Conditions of Victory Telecom, LLC d/b/a Victory Technology. Should Victory absorb End User as a customer, Customer will not receive residual commissions for End User.
(a) Services are billed on a monthly basis commencing with the Service Date and are due upon receipt. Services are invoiced in advance, but usage charges and hourly consulting charges (if applicable) are invoiced in arrears. Any installation or other non- recurring charges, which are non-refundable, will appear on the first monthly invoice.
(b) Victory may require a deposit prior to the provision of any new Service. Victory also may require a deposit as a condition to its obligation to continue to provide Service(s) if Customer has failed to timely pay for Service(s) on two occasions during any six month period.
(c) Victory will invoice Customer for applicable Taxes (defined below) and, whenever possible, will identify such charges as a separate line item on the invoice. Customer will be liable for Taxes which were assessed by or paid to an appropriate taxing authority within the applicable statute of limitations period. If Customer fails to pay any Taxes properly billed, then as between Victory and Customer, Customer will be solely responsible for payment of the Taxes, and penalty and interest. "Tax" or "Taxes" mean any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated, imposed, or sought to be imposed, on or with respect to purchases by Customer from Victory for consideration under this Agreement or for Victory's use of public streets or rights of way, which Victory is required or permitted by law or a tariff to collect from Customer; provided, however, that the term "Tax" will not include any tax on Victory's corporate existence, status, income, corporate property or payroll taxes. If either Party is audited by a taxing or other governmental authority, the other Party agrees to cooperate reasonably by responding to the audit inquiries in a proper, complete and timely manner. Victory will cooperate, at Customer's expense, with reasonable requests of Customer in connection with any Tax contest or refund claim. The Customer will ensure that no lien is attached to or allowed to remain on any asset of Victory as a result of any Tax contest. Customer will indemnify and hold Victory harmless against any liabilities, damages, losses, costs or expenses arising out of such Tax proceedings, including without limitation any additional Taxes, interest, penalties and attorney's fees. If Customer claims an exemption for any Taxes, Customer must provide Victory with a proper tax exemption certificate as authorized by the appropriate taxing authority. Customer must pay the applicable Taxes to Victory until it provides Victory with a valid tax exemption certificate. If applicable law exempts a Service under this Agreement from a Tax, but does not also provide an exemption procedure, then Victory will not collect such Tax if Customer provides Victory with a letter signed by one of its officers: (i) claiming a right to the exemption; (ii) identifying the applicable law that allows such exemption and does not require an exemption certificate; and (iii) agreeing to indemnify and hold Victory harmless from any tax, interest, penalties, loss, cost or expense asserted against Victory as a result of its not collecting the Taxes from Customer.
Payment for all undisputed amounts due under this Agreement must be received by Victory by the Due Date specified on the bill. Any payment or portion thereof not received by this date is subject to a late charge on the unpaid amount of 5% of the amount due or the maximum amount permitted by law. In addition to the Late Fee and any other rights and remedies it may have, if Customer fails to pay any invoice by the applicable Due Date, Victory reserves the right to place orders on hold and request a deposit and/or a wire transfer for such late amount. Victory may also suspend provision of any or all Services of End User if Customer fails to pay any past due amounts within five (5) days of receipt of written notice.
Customer shall reimburse Victory for reasonable attorney’s fees and any other collection costs, including collection agency fees, associated with collecting delinquent or dishonored payments. If Victory engages a collection agency to collect delinquent or dishonored payments from Customer, then the parties stipulate and agree that the reasonable costs of such collection will be thirty-five (35%) of the amount due to Victory.
All End User billing disputes will solely between the Customer and the End User. If Customer disputes any charges with Victory, the dispute must emailed to email@example.com. Customer will only initiate a billing dispute if it has a good faith belief that it has been invoiced an amount in error, and all such billing disputes must be initiated within thirty (30) days of the invoice date of the disputed invoice or such dispute shall be deemed waived. Upon disputing any charges, Customer shall: (i) pay all undisputed charges by the Due Date; (ii) present by the Due Date a written statement of amounts disputed with reasonable detail and supporting documentation; and, (iii) negotiate in good faith to resolve any dispute within thirty (30) calendar days from the date such billing dispute was initiated. Any disputes related to Service outages shall be governed by Section 8 of the Agreement. Disputed charges resolved in favor of Victory, together with the applicable Late Fee, are due and payable within five (5) calendar days of Victory’s written notice denying the dispute, which shall be the Due Date for such payment. Disputed charges resolved in favor of Customer will be credited to Customer on the following month’s billing cycle and no Late Fees shall apply.
8. Service Levels :
Service Level Agreement ("SLA"). The SLAs provided by Victory are set forth at http://www.ally.technology/sla.
9. Governmental 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.
(a) Victory may discontinue or impose additional requirements to the provision of 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 Victory providing the Service. Customer is not responsible for the termination liability set forth in Section 14 below if Victory discontinues the Service under this subsection.
Customer ("Indemnnor") shall indemnify, defend and hold harmless Victory ("Indemnitee") from all losses or damages arising from or related to bodily injury or physical damage to tangible property caused by the negligence or willful misconduct of Indemnitor. Customer shall indemnify, defend and hold Victory harmless from all losses or damages arising from Customer's violation of third party intellectual property rights, all claims of any kind by Customer's end users, or any act or omission of Customer associated with any Service.
11. Limitation of Liability:
Except for the Parties' respective obligations set forth in Section 14 herein, neither Party is liable to the other for indirect, consequential, special, incidental, or punitive damages of any kind or nature whatsoever (including without limitation lost profits, lost revenues, lost savings, lost opportunity or harm to business), whether or not foreseeable, whether or not the Party had or should have had any knowledge, actual or constructive, that such damages might be incurred, and regardless of the form of action, nature of the claim asserted or the frustration of either Party's purpose. Indirect damages include, but are not limited to, damages of the kinds specified in the preceding sentence that are incurred by a third party and are asserted against a Party (including attorneys' fees and expenses). Victory's liability to Customer for direct damages may not exceed one month's calculation of the applicable MRCs regardless of the form of action, nature of the claim asserted or the frustration of either Party's purpose. Victory has no liability for the content of information that End User passes through Victory's Network, End User transmission errors, or any failure to establish connections outside of the Victory Network.
12. Termination by Victory:
(a) Termination With Notice. Victory may disconnect all Service(s) associated with a delinquent account upon ten (10) days’ notice (written or e-mail) for Customer's failure to pay amounts due under this Agreement which remain uncured at the end of the notice period; or upon thirty (30) days’ notice (written or e-mail) for: (i) Customer's breach of a non-economic, material provision of this Agreement or any law, rule or regulation governing the Services which remains uncured at the end of the notice period; (ii) Customer's insolvency, bankruptcy, assignment for benefit of creditors, appointment of trustee or receiver; and/or (iii) any governmental prohibition or required alteration of the Services; (iv) Customer’s uncured security issue: Victory will notify customer stating termination is necessary to protect Victory's Network from unauthorized access deriving from End User software and/or hardware, unauthorized call usage (blast calling using a dialer) or other similar unauthorized access that may adversely affect Victory’s network; Victory will suspend services on notice of the security issue and Customer will have 30 days to have End User cure the security issue once notified. If cured, Victory will restore services. If uncured, Victory will have cause to terminate.
(b) Termination Without Notice. Victory may terminate or suspend Services without notice if: (i) Victory has reasonable evidence of Customer's or End User’s illegal, improper or unauthorized use of Services; or (ii) required by legal or regulatory authority.
(c) Post Termination. Any termination or disconnection shall not relieve Customer of any liability incurred prior to such termination or disconnection, or for payment of unaffected Services. Victory retains the right to pursue all available legal remedies if it terminates this Agreement or disconnects Service(s) in accordance with this Section. All terms and conditions of this Agreement shall continue to apply to any Services not so terminated, regardless of the termination of this Agreement. If Victory terminates Service in accordance with this section, and Customer wants to restore such Service, Customer first must pay all past due charges, a reconnection charge and a deposit equal to 2 months' recurring charges. All requests for disconnection will be processed by Victory in 30 days or less. Customer must pay for Services until such disconnection actuVictory occurs.
13. Termination by Customer:
Customer may terminate this Agreement and/or any Service Order hereunder upon thirty (30) days prior written notice, without incurring termination liability, for Victory's (i) breach of a material provision of this Agreement which remains uncured and is defined as uncured by Victory at the end of the notice period and/or (ii) insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event. Items excluded from any breach of material provision include but are not limited to hardware owned by customer and any third party software.
14. Termination Liability:
If Victory terminates this Agreement or any Service Order(s) pursuant to Section 12 above (other than subsections a (iii) and/or b (iii)), or if Customer terminates this Agreement or any Service Order(s) for any reason other than as set forth in Section 13 above, all monthly recurring charges and any outstanding non-recurring charges associated with the terminated Service(s) for the balance of the applicable Service Term shall become immediately due and payable.
Neither Party may assign this Agreement without the prior written consent of the other Party, not to be unreasonably conditioned, withheld or delayed, except that: (1) Victory may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantiVictory all its assets, or (c) for purposes of financing; and (2) Customer may assign its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, or (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantiVictory all its assets, provided that any assignment by Customer pursuant to this exception is subject to the following conditions: (i) the proposed assignee satisfies Victory's credit and deposit standards; (ii) Customer has fully paid for all Services through the date of assignment; and (iii) the proposed assignee agrees in writing to be bound by all provisions of this Agreement.
16. Entire Agreement:
This Agreement, together with the 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 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. Force Majeure: Either Party shall be excused from performance if inability to perform is due to a cause or causes beyond such Party's reasonable control, including without limitation, acts of God, fire, explosion, vandalism, acts of terrorism, cable cuts caused by a third party, adverse weather conditions, labor strikes and governmental action ("Force Majeure"). If such inability to perform continues for sixty days or longer, the other Party may terminate the affected Services. Customer's invocation of this clause does not relieve Customer of its obligation to pay for Services actuVictory received.
18. Governing Law - Litigation: The interpretation of the rights and duties of the Parties and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and subject to the laws of the State of Texas, excluding its principles of conflicts of law. Any litigation arising must be filed in Collin County, Texas. If either Party commences litigation under this Agreement, the prevailing Party is entitled to reimbursement of its costs and attorneys' fees from the other Party.
Headings herein are for convenience only and are not intended to have substantive significance in interpreting this Agreement.
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, (iii) by overnight courier, or email notice. A notice is deemed given (i) when delivered, if personVictory delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, (iii) at the time the party or its representative executes the delivery receipt, if delivered via courier or (iv) if Victory confirms email delivery. Victory must provide such notice to Customer's billing address, and Customer must provide such notice to Victory at 2800 North Dallas Parkway, Suite #110, Plano, TX. 75093, Attn: General Counsel, except that if Customer is disconnecting Services for any reason, it must deliver notice to Victory either by facsimile to 214-380-9370 or by email to "firstname.lastname@example.org". Notice by facsimile or email is deemed given when delivered.
21. No Waiver:
Either Party's failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
22. Public Releases, Use of Name:
Neither Party may issue a news release, public announcement, advertisement nor other form of publicity regarding this Agreement nor the Services provided hereunder without the prior written consent of the other Party. Customer may not use Victory's name, logo or service mark without Victory's prior written consent. Victory may use Customer's name and logo in materials presented to analysts and investors.
23. Representations and Warranties:
Each Party represents and warrants that it, and the person signing on its behalf, is fully authorized to enter into this Agreement. Victory represents and warrants that the Services will be performed by qualified and trained personnel. Victory does not guarantee, represent or warrant that the Service(s) will be without interruption. Victory MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, AND DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR OR ORDINARY PURPOSE.
If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the Parties' original intent.
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.
26. Relationship of Parties; No Third Party Beneficiaries:
The Parties are independent contractors, and nothing herein creates or implies an agency, joint venture or partnership relationship between the Parties. This Agreement shall bind and inure to the benefit of Victory, Customer, and permitted successors and assigns. The Parties do not intend to create any rights for the benefit of any third parties.
Each Party may disclose confidential information to the other Party in connection with this Agreement. Confidential information includes this Agreement, Service Orders, Service Level Agreements, all pricing information and any other information that is marked confidential or bears a marking of like import, or that the Party disclosing such information states is confidential and then confirms such confidentiality in writing within ten (10) days ("Confidential Information"). Confidential Information may only be used in connection with performance under this Agreement. Confidential Information may not be disclosed except to those employees or affiliates of the receiving Party who have a need to know, or to consultants or subcontractors of the receiving Party who agree to be bound by this Section. Confidential Information does not include information that is generVictory available to the public through no wrongful act of the receiving Party or is independently developed by the receiving Party. Upon termination or expiration of this Agreement, the receiving Party will return the confidential information or destroy it. The obligations of this provision will survive for five years after the termination or expiration of this Agreement.
28. Ownership of Equipment.
All Victory Equipment and Software shall at all times remain the property of Victory or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the Victory Equipment or Software, nor shall Customer or End User relocate the Victory Equipment outside the Premises. Customer shall pay to Victory the full manufacturer's suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Victory Equipment or part thereof, together with any incidental costs incurred by Victory relating to the replacement of the Victory equipment. Victory may, at its option, install new or reconditioned Victory Equipment. If equipment is directly purchased by Victory Telecom as hardware for resale the equipment is assumed as being owned by the customer. Any hardware purchases have a 30 day return policy from the date the customer receives the equipment. After 30 days Victory is no longer responsible for the customer hardware and any hardware issues/maintenance or replacements must be directed to the hardware manufacturer.
29. Back-up Requirements:
The installation, use, inspection, alteration, maintenance, repair or removal of the Victory Equipment and Software may result in a service outage or potential damage to Customer Equipment, software and loss of data. Customer covenants that End User is to back-up all existing computer files by copying them to another storage medium prior to the installation of Victory Equipment and Software. Customer acknowledges, understands and accepts the risks of not making such a backup, including but not limited to the loss of some or all of End User’s software or data, or damage to Customer Equipment. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT TO THE CONTRARY, Victory SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR DESTRUCTION OF END USER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA.
30. VoIP Description:
VoIP 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. VoIP may be genericVictory referred to as "voice over IP." It is separate and distinct from standard local, local toll and long- distance services. PBX phone systems include VoIP local and nationwide direct dialed calling within the United States for up to 1500 minutes per channel (a.k.a SIP) trunk. Per channel overages will be charged at $12.95 per 1000 minute overage. Certain calling and call management features or advanced features associated with VoIP, including additional features or advanced features which Victory, in its sole discretion, may add, modify, or delete from time to time. VoIP does not support 0+ calling (including without limitation collect, third party billing or calling card calling). VoIP may not support 900, 311, 511 and/or other x11 services in one or more (or all) service areas. Customer acknowledges and agrees that VoIP is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and VoIP provided by Victory. VoIP is subject to different regulatory treatment than telephone service. VoIP phone systems rely on bandwidth in order to operate. Customer acknowledges that if End User’s bandwidth is inadequate or has outages, the VoIP system will be rendered inoperable. If End User’s bandwidth is supplied by a carrier other that Victory, any VoIP outages or interruptions cannot not be resolved, tested or investigated by Victory and Customer must contact the ISP directly to resolve issues. VoIP phone systems also rely on the End User’s local network and changes to the End User’s network, switches, firewall and routers can affect the VoIP phone system. Customer acknowledges that End User’s local network administrators are solely responsible for Customers local internal network and Victory shall not be held responsible for any changes made by local network administrators which affect the VoIP phone system. Consulting fee’s may apply to resolve any issues caused by the End User’s local network. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
31. Privacy and Security:
VoIP communication utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Customer acknowledges and agrees that Victory cannot guarantee that calls utilizing the Service are private or secure. Victory is not liable for any lack of privacy or security that Customer may experience with regard to the Service. End User is responsible for taking precautions and providing security that best suits the intended use of the Service.
32. Non-recommended Configuration:
Victory has informed Customer of the recommended minimum computer hardware requirements, if any, (the "Minimum Requirements") for operating the Service. If Customer allows the installation of the Service utilizing hardware that does not meet the Minimum Requirements (a "Non-recommended Configuration"), Customer acknowledges and agrees that (a) other than testing the quality of the signal delivered to Customer's IP phone or media converter, Victory does not provide any support for Services utilizing a Non-recommended Configuration, (b) Victory DOES NOT REPRESENT OR WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE AN END USER TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICE, and (c) INSTALLATIONS UTILIZING A NON- RECOMMENDED CONFIGURATION MAY CAUSE DAMAGE TO THE END USER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA. Victory DISCLAIMS ANY AND ALL LIABILITY, AND CUSTOMER HEREBY ASSUMES ALL SUCH LIABILITY, FOR ANY AND ALL DAMAGE TO END USER’S EQUIPMENT OR SOFTWARE, ANY LOSS OF DATA, OR THE INABILITY TO ACCESS THE SERVICE, IF END UERS USES A NON-RECOMMENDED CONFIGURATION.
33. Credit Inquiries:
Customer authorizes Victory to make inquiries and to receive information about Customer's credit experience from others, enter this information in Customer's file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. Victory reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of this Agreement. Customer authorizes Victory to offset any amounts due to Victory against the security deposit.
34. Fraudulent Calls:
Customer must advise End User that it is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and Victory shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder. Customer shall indemnify, defend and hold Victory harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event Victory discovers fraudulent calls being made, Customer consents to Victory taking any and all action that it deems necessary, without notice to End User, reasonably necessary to prevent such calls from taking place. Notwithstanding the foregoing, it is Customer acknowledges and agrees that Victory is under no obligation to investigate the authenticity of calls charged to Customer's account, is not under any obligation to take any action to prevent such calls from being made, and is not be liable for any fraudulent calls processed by Victory and billed to Customer's account.
35. Access Cost Recovery Surcharge:
The Access Cost Recovery Surcharge is a charge assessed by VTI associated with payment of government imposed fees and to recover the cost of compliance with government imposed regulatory requirements. It is not a tax or charge which the government requires VTI to collect from its customers. This charge is subject to change as the cost of compliance to regulatory requirements change.
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