Avatel Purchase Terms and Conditions
CERTIFICATION: Company certifies that it will purchase Products and Services only as a bona fide end user, for its own internal use, and except for used Products, will not resell same, unless otherwise provided in this Agreement.
Thank you for the opportunity to be of service to your business. The outlined above will be performed on “time and materials” basis. Unless the work is on a fixed price basis, the final billings will reflect the actual time spent on the job at our prevailing rates as well as the price for any materials used. There is no minimum or maximum billing for this work. If an estimate is or was given, it shall not be binding on AVATEL Technologies, Inc. It is a good faith estimate of the
anticipated (not actual) billing based upon the work that is to be completed as outlined in the attached agreement. We may or may not have visited your site in advance. Additions, changes or deletions to the work will affect the quoted price. The quote assumes some delays, however, any of the delays listed below may cause the work to take longer and increase the price (even if the work was quoted at a fixed price).
- Customer Delays (Denying Installers Needed Access, Rescheduling of Number Porting)
- Delays By Moving Companies
- Delays Caused By Inability to Obtain Electrical Power
- Changes Requested By You, the Customer
- Delays Caused By the TELCO Utility (Service Not Ready)
- Delays Caused By the Internet Utility (Service Not Ready/Bandwidth Not Sufficient)
- Delays Caused By Others (Contractor, Data, etc)
- Furniture (we are prohibited from moving heavy furniture)
We are assuming a normal installation environment exists unless otherwise stated. Abnormal conditions included, but are not limited to, brick or cement walls that cables must pass through, air plenum ceilings, special ceiling tiles (1x1), no access to equipment rooms when needed, etc.
PREVAILING TERMS AND CONDITIONS: Except in the event of AVATEL Technologies, Inc. financing of the Products and Services hereunder, the terms and conditions of this Agreement, and the terms and conditions contained in any Appendices to this Agreement and/or accompanying End User License Agreements and/or Sub Service Terms and Conditions, together form the entire agreement between the parties. Any terms or conditions contained in any Company purchase order, request for quotations, acceptance or other purchasing documents concerning Products and Services which are inconsistent with, different from or in addition to the terms and conditions of this Agreement are void.
APPROVAL OF ORDERS: This Agreement and all Company purchase orders for Products and Services under this Agreement are subject to acceptance by AVATEL Technologies, Inc including if appropriate, approval by AVATEL Credit Department. Upon notice by AVATEL, Company will furnish AVATEL such financial information as AVATEL may be responsible for this approval. AVATEL may in its sole discretion, cancel this Agreement at any time or delay shipment of Products if Company fails to meet credit requirements established by AVATEL.
PRODUCTS AND SERVICES: Products and Services covered by this Agreement, and the quantities thereof, are only those specifically identified in this Agreement. Customer understands that in some cases additional products and/or services may be needed that are either too small to itemize or unknown to AVATEL Technologies, Inc. during the initial quotation and agreement stage based on undisclosed environmental requirements, data requirements, and other Customer needs. Products and/or Services may be added to this Agreement only by the parties’ agreement in writing and will be on the final invoice generated for products and services implemented and/or rendered. AVATEL may make changes to Products and/or Services that do not adversely affect their form, fit or function without prior approval of or notification to the Company. AVATEL will give Company prior notice if AVATEL makes changes to Products and/or Services that affect their form, fit or function or discontinues any Products and/or Services prior to fulfillment hereunder. In such event, AVATEL will use reasonable efforts to find a substitute Product and/or Service acceptable to Company, in Company’s sole discretion, but failing that, then either party may cancel any Company purchase order for Products and/or Services to the extent not previously fulfilled by giving the other notice, and neither party will be liable to the other for damages resulting from that cancellation. Should the Customer choose to cancel the order at any time prior to installation of products, the Customer will be charged restocking fees on all products, with the exception of any licenses, which are non-returnable and will be charged to the Customer at the full retail price identified in this agreement.
PRICES AND PAYMENT: Company will pay AVATEL those prices indicated in this Agreement for Products and/or Services. Unless otherwise provided, AVATEL may change prices for any Products and/or Services whose estimated delivery dated indicated in this Agreement is more than sixty (60) days after the date hereof, by giving Company prior notice. If because of any price increase Company does not wish to purchase Products and/or Services previously fulfilled by giving AVATEL notice within (10) days of notice. Unless otherwise provided in this Agreement, Company must pay for Products and/or Services in full within thirty (30) days of their invoice date. Company may not make deductions or offsets of any kind from payments due AVATEL unless Company has received a written credit memorandum from AVATEL authorizing that deduction or offset.
ADDITIONAL CHARGES: Company will pay AVATEL all additional charges that may become required above and beyond those prices and charges indicated in this Agreement for Products and/or Services as a result of the following:
- 15% Equipment Restocking fee for any returned equipment. Company is responsible for checking all equipment listed on the Agreement for Products and/or Services to ensure the products listed are correct and in the correct quantities agreed upon.
- Additional Time and Material billing will be assessed, if the time and material required to complete the installation exceeds the time and material included in this agreement.
- Additional CALL SWEET Licenses will be billed, if the number of Extensions in Use exceed the number of licenses purchased on this agreement at anytime during the term purchased.
- Additional and/or Upgraded Service Licenses required for any services will be billed, if the number of users exceed the number of licenses purchased on this agreement and/or if the Company requires upgraded licenses due to additional capability requirements at any time during the term purchased.
- Service Overages will be billed monthly, if the service (minutes, bandwidth, etc) used exceeds the maximum service limits provided monthly in this agreement during the term purchased.
- Telephone Number Porting Changes:
- Any ports that are cancelled within two business days of their FOC date incur a $100 fee per number.
- Any ports that are cancelled before two business days of their FOC date incur a $10 fee per number.
- Port requests may not be cancelled on their FOC date.
- Telephone Number Port Out Charges:
- Any Local or Toll Free number ported out within 12 months of activation will incur a $5 fee per number.
- Any Local or Toll Free number ported out within 12 months of porting in to Avatel SIP service will occur a $5 fee per number.
TRANSPORTATION COSTS: Unless otherwise provided in this Agreement, the prices for Products indicated in this Agreement exclude all transportation costs, including but not limited to freight, insurance and special handling and packaging. AVATEL will prepay these costs and invoice them to the Company.
TAXES, FEES, and SURCHARGES: The prices for Products and/or Services indicated in this Agreement exclude all taxes, including but not limited to, sales, excise or use taxes, regulatory fees, and surcharges for billing, compliance, etc. Company shall pay all local, county, state, and federal sales, use, ad valorem, excise and/or any other taxes imposed on either party by virtue of this agreement, except for taxes based on AVATEL’s net income. AVATEL will invoice Company for any of these taxes, fees, and surcharges AVATEL is legally obligated to collect from Company.
ADJUSTMENTS: If the price for Products and/or Services indicated in this Agreement are prices which have been reduced either based: (a) on Company’s representation that Company would purchase certain minimum quantities of Products and/or Services and Company fails to purchase those minimums; or, (b) on Company’s representation that Company was purchasing Products and/or Services for its own use and not for resale but Company resells same, (c) on Company’s representation that Company would remain compliant with Avatel and/or Sub Services terms and conditions related to accurate and non-fraudulent use of Products and/or Services but Company does not remain compliant, then in addition to any other remedies available to AVATEL under this Agreement or allowed by law for that default, AVATEL may retroactively increase those prices to make them equal to those prevailing for the quantities of Products and/or Services actually purchased by Company and/or for the appropriate resale class of trade, and AVATEL will invoice company for any resulting increase in prices; and/or may discontinue Products and/or Services immediately for non-compliance with any terms and conditions accepted at point of purchase.
FINANCE CHARGES/COST OF COLLECTION: If company fails to pay AVATEL for Products and/or Services when due, then in addition to the cancellation of products and/or services and any other remedies available to AVATEL under this Agreement or allowed by law for that default, Company will pay AVATEL an additional monthly financing charge equal to the lesser of: (a) one and one half percent (1.5%) or, (b) the maximum monthly interest rate allowed by law of any amounts past due, chargeable during each month that payments remains outstanding and AVATEL’s reasonable expenses of collection, including but not limited to attorney’s and experts fees and court costs.
DELIVERY, INSTALLATION, TESTING AND ACCEPTANCE: The system will be installed at the “Installation Site” and/or remotely (described above) by AVATEL according to the manufacturer’s installation specifications and the standard practices of the telecommunications industry. Company shall allow AVATEL’s employees, representatives, and sub-contractors reasonable access to the necessary premises for installation and/or remote access to the Company’s network for remote installation as required. Before and during installation, Company is responsible to ensure the timely and adequate delivery, installation and functioning of the electrical and telecommunications connections, sufficient internet bandwidth to support services, and other environmental requirements, specified in AVATEL’s instructions, including those connections required for Company’s choice of local and long distance telecommunications services. If Company causes a delay in the delivery of the system, Company shall be responsible for storage and other costs incurred by AVATEL and any installments of the Purchase Price due after the delay shall be due and payable on the date specified in the Project schedule Annex. Additional charges may apply if AVATEL must perform extra services or bear additional cost (such as overtime wages) because of an unprepared Installation Site or Network, or due to company’s acts or omissions or conditions at the Installation Site and/or Network that AVATEL was not aware when it signed this Agreement. When the installation has been completed the System will be tested by AVATEL according to the manufacturer’s diagnostic and readiness test specifications and company will be notified when the Products and/or Services are ready to be placed into use (“Cutover”). Within 10 days after Cutover, Company must either accept the Products and/or Services or notify AVATEL in reasonable detail of the terms and manner in which the Products and/or Services do not materially comply with this Agreement. AVATEL shall promptly correct any such items and manner in which the Products and/or Services do not materially comply with this Agreement. Upon such correcting, if Company does not notify AVATEL of any material noncompliance within such time, acceptance of the Products and/or Services shall be deemed to occur. Company shall not unreasonably withhold acceptance.
METHODS AND POINT OF DELIVERY: Unless otherwise provided in this Agreement, AVATEL will choose the carrier for shipping Products and/or delivering Services, and all shipments of Products to company will be (F.O.B.) from an AVATEL U.S. warehouse.
TITLE AND RISK OF LOSS: Title and risk of loss or damages to any Products and/or Services will pass to Company upon AVATEL’s delivery of them to the carrier. All claims for damage to or loss of products must be made by Company directly to the carrier or the insurance company (as may be the case).
INTERCONNECTION WITH CARRIER FACILITIES (Not Implemented by Avatel or its affiliated Service Providers):
Seller’s services shall be limited to the installation of the Equipment on the Customer’s side of the equipment furnished by the local carrier connecting the Equipment to carrier’s network. Seller shall not be responsible in the event the carrier fails to timely make available services nor shall Seller be obligated to pay the carrier’s charges for the services. Seller’s services shall be limited to the installation of the purchased equipment only and shall not(unless specifically so stated) include labor or materials that may be needed to connect the equipment with the incoming facilities (telephone lines) at the utilities demarcation point also known as the Minimum Point Of Entry (MPOE), nor shall Seller be obligated to provide labor or materials (unless specifically so stated) to install, maintain or cross connect to the building’s Intra-building Network Cabling (INC) which is legally owned by the building owner.
The Customer shall, at its expense, on the date of delivery of the Equipment to Customer’s premises, and at all times thereafter during the period of installation services hereunder:
(a) Allow employees or representatives of Seller free access to premises and facilities where the Equipment is to be installed at hours consistent with the requirements of the installation. Premises shall also include all telephone closets, rooms or terminals in the building that access is needed to complete the installation. If there is a fee for this access, it shall be paid for by the Customer. If the building owner requests certificates of insurance Seller shall provide them at a nominal charge to Customer. If there are any delays in gaining access to any of the telephone rooms, closets or terminals not created by Seller, Seller at Seller’s option may bill Customer for such delays at its regular and prevailing hourly rates.
(b) Assure that the premises will meet temperature, humidity controlled, air-conditioning, and other environmental requirements as set forth in the applicable Equipment specifications, and will be dry and free from dust and in such condition as not to be injurious to the employees or representatives of Seller or the Equipment to be installed.
(c) Provide necessary openings and ducts for cable and conductors in floors and walls.
(d) Provide electric current for any necessary purpose with suitable terminals in rooms where it is required.
(e) Provide installed metallic ground or grounds as required.
(f) Provide for the termination of any existing services agreement with the applicable telephone carrier(s) and for the removal of any existing equipment and cable, as required.
(g) Provide suitable and easily accessible floor space to permit storing adjacent to where Equipment will be used, and for secure storage of tools, test sets, etc.
(h) If required, secure permission from building owner, landlord or manager allowing Customer to use buildings Intra-building Network Cabling (INC) to connect equipment to utility company’s Minimum Point Of Entry (MPOE). If a fee is charged for the use of cabling, they shall be paid for by the Customer.
(i) If Music on Hold or Voice Prompts are purchased, the customer is responsible for having the appropriate parties
review and approve the recordings. Once customer approved, any changes requested will be billable.
(j) Secure adequate minimum internet bandwidth requirements to support services to be implemented by Avatel.
(k) Provide required access to Customer’s network to allow for the implementation and on-going maintenance of services implemented by Avatel.
(l) Assume all financial responsibilities for services and billing associated with customer’s previous service carrier prior to, during, and after telephone numbers are ported to Avatel’s services. Avatel bears no financial responsibilities for any charges assessed to the customer from their prior service carrier(s) for any services, cancellation fees, or other related charges.
FORCE MAJEURE: Each party will be excused from any default in its obligations under this Agreement other than the payment of money due, resulting from any act or event beyond its reasonable control or responsibility, Including, but not limited to, acts of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, government action, law, ordinance, rule or regulation, whether valid or invalid, inability to obtain or curtailment of electricity or other types of energy raw material, labor component products or transportation, failure of normal sources of supply, or any similar or different contingency which would make performance or timely performance commercially impracticable. The party relying on any of these acts or events of force majeure must give the other notice thereof promptly after it becomes known to that party. If any of these acts or events of force majeure exceed (60) continuous or cumulative days, then either party may as its sole remedy, cancel this Agreement to the extent not previously fulfilled by giving the other notice, and neither party will be liable to the other for damages resulting from that cancellation.
LIMITED WARRANTY: The warranty cards enclosed with Products state manufacturers limited warranty to Company applicable to those Products. If Products are not accompanied by warranty cards, manufacturers’ then current warranty applicable to those Products will apply. Unless a separate service agreement has been entered into between parties, all repairs to or replacements of Products after the expiration of the applicable warranty period will be Company’s responsibility.
Warranties and Protections afforded to the originating vendors/manufacturers under any additional sub Service Terms and Conditions and/or End User License Agreements for other Services purchased, provided, and initialed on the purchase agreement, shall be extended warranties and protections to Avatel as the reseller of such services.
EXCEPT FOR THE FOREGOING WARRANTIES, AVATEL HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTY WITH REGARD TO ANY CLAIM OF INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 (3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE RESPECTING PRODUCTS IS EXPRESSLY EXCLUDED. AVATEL HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF NON-AVATEL PRODUCTS COMPANY MAY CHOSE TO CONNECT TO PRODUCTS.
LIMITATION OF LIABILITY: THE LIABILITY OF AVATEL, IF ANY, AND COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE, UNDER NO CIRCUMSTANCES WILL AVATEL BE LIABLE TO COMPANY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATIVE TO THIS AGREEMENT INCLUDING BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMBATANTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL, OR FOR ANY OTHER REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO THE CLAIMS OF ANY THIRD PARTY. This limitation of liability will in no way affect Company’s right to seek appropriate relief or law arising from or incident to any death, personal injury or property damage which is in any way connected to AVATEL’s negligence, willful misconduct or strict liability in tort with respect to Products and their use.
Limitations of Liabilities and Protections afforded to the originating vendors/manufacturers under any additional sub Service Terms and Conditions and/or End User License Agreements for others Services purchased, provided, and initialed on the purchase agreement, shall be extended limitations of liabilities and protections to Avatel as the reseller of such services.
DEFAULTS: If Company is in default of any of the terms or conditions of this Agreement or any other agreement with AVATEL, AVATEL may suspend further performances under this Agreement.
TRADEMARKS: Company acknowledges the validity of AVATEL or Originating Vendors/Manufacturers trademarks and trademarks appearing on Products and/or Services and Company will have no right to or interest in any trademarks or trademarks owned, used or claimed now or in the future by manufacturer.
NOTICES: Any notice given under this Agreement will be deemed to be sufficiently given when sent in writing by certified mail or by facsimile or other rapid form of transmission where receipt is acknowledged to the parties at their respective addresses set forth herein or as those addresses may be subsequently changed by giving notice. The date of mailing or transmission of any notice hereunder will be deemed the dates on which that notice has been given.
EXPORT: company will not export any Products or related technology or software in violation of applicable U.S. laws and regulations. Company will be responsible for obtaining any required export licenses for Products and/or Services.
ASSIGNMENT: Company may not assign any of its rights or delegate any of its duties or obligations under this Agreement without AVATEL’s prior written consent, which consent will not be unreasonable delayed or withheld. Any assignment or delegation hereof by Company without AVATEL’s consent will be deemed void.
WAIVER: Either party’s waiver of the other’s default in its obligations under any term or condition of this Agreement will not in any way limit or affect that party’s right to enforce and compel strict compliance with that term or condition at any other time or with any other term or condition.
REMEDIES: each specific right or remedy accorded either party under this Agreement will not be exclusive but cumulative of all other rights and remedies accorded that party hereunder or allowed by law, therefore.
INVALIDITY: If any term or condition of this Agreement is held invalid or unenforceable by any court, in whole or in part, that term or condition will be construed and enforced to the greatest extent possible and the validity of the remaining terms and conditions will not be affected thereby.
CHOICE OF LAW: This Agreement will be construed and enforced in accordance with the laws of the State of Florida, without reference to its conflicts of law principles.
SOFTWARE: Any License Agreement enclosed in the original factory packaging for Products and/or in the delivery of Services will state those additional terms and conditions of any license granted to Company applicable to those Products and/or Services. In all other cases, any software furnished by AVATEL under this Agreement is done so on a non-transferable license to use basis and all right, title and interest therein is and will remain vested exclusively in AVATEL or its licensors. Company will not decompile, disassemble, or otherwise derive the source code of any software, except that Company may make one (1) copy of each such software Product and/or Service (if applicable) for backup purposes only. Company will return or destroy all copies of software upon cessation of related Product usage. All software furnished by AVATEL is to be considered confidential information and will be held by company in strict confidence and disclosed on a need-to-know basis to only those of its employees who have agreed in writing to maintain the confidentiality of Company provided third party confidential information.
ENTIRE AGREEMENT: This Agreement and any Appendices to the Agreement supersedes, terminates, and otherwise voids any and all prior written and/or oral agreements between the parties with respect to Products. There are no warranties, representations or understandings of any kind or description whatsoever made by either party to the other, except such as are expressly set forth herein. This Agreement may be modified only by a written instrument signed by both parties making specific reference hereto.