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1.0 GENERAL.
Gafachi is in the business of providing Voice over Internet Protocol ("VoIP") services. Customer desires to purchase from Gafachi, and Gafachi desires to sell to Customer such services in accordance with the terms and conditions set forth in this Agreement.
2.0 DEFINITIONS.
"Site" shall mean the Gafachi website.
"Affiliate" shall mean any person or entity, which (i) is owned by Gafachi, or (ii) owns Gafachi in part or whole, or (iii) is under common control and/or ownership with Gafachi.
3.0 DESCRIPTION OF SERVICES.
Gafachi, directly and/or through its affiliates, subsidiaries, and underlying carriers, shall provide the Services, and Customer shall purchase and utilize the Services per the terms and conditions of this Agreement. The Parties may, by mutual agreement, add and incorporate additional services by executing additional schedule(s) and incorporating them herein.
4.0 TERM.
This Agreement shall become effective as of the Effective Date. Unless otherwise provided in the Terms and Conditions of an applicable Service Exhibit, if attached hereto, this Agreement shall remain effective until terminated as provided hereunder. Either Party may terminate this Agreement by providing the other with notice of such termination, which shall be effective immediately upon delivery of such notice to the other Party. Furthermore, Gafachi may terminate this Agreement immediately for any breach of this Agreement or any applicable policy of Gafachi as posted on the Site from time to time. No reimbursements for any fees charged in connection with Service(s) offered on the Site shall be issued where reason for termination is due to the violation of any of the terms and conditions set forth herein or in any other policy posted on this Site. In the event of termination or expiration, the following sections shall survive: TERM; PAYMENT; NO LIABILITY; IDEMNIFICATION; GOVERNING LAW; CONFIDENTIALITY; NOTICE; and MISCELLANEOUS.
5.0 PRICING.
5.1 For the Services provided pursuant to this Agreement, Customer shall pay Gafachi per the pricing and provisions of the then current relevant pricing. Pricing is subject to change, unless otherwise provided for in the relevant Service Exhibit, if attached. Current pricing shall be posted on the Site and shall become effective immediately. Unless specified explicitly by Gafachi to the contrary, all prices are in U.S. dollars.
5.2 For the purpose of assessing rates for Origination from and Termination to the continental United States, Gafachi uses Standard and Tiered rate tables. To be eligible for Standard rates for a particular day, the distribution of Customer's combined continental United States Origination and Termination usage, in minutes, for that day must fall within the then current per Tier ratio requirements ("Standard Usage Guidelines"). Each NPA-NXX has a Tier assigned for each Interstate Termination, Intrastate Termination, Interstate Origination, and Intrastate Origination defined in the then current "Tier Table" which shall be considered a component of Standard Usage Guidelines. The routing number for a particular call is used to identify the appropriate NPA-NXX for purposes of determining the applicable Tier to which the call belongs. If the actual routing number, as determined by Gafachi in its sole discretion, is not available at the time of the call, the Tier to which the call is assigned as well as the tier distribution and usage charges may be recalculated as appropriate. If Customer's daily usage does not satisfy the ratio requirements, Gafachi may, at its exclusive option, assess Tiered rates whereby for each Tier, the Termination usage is assessed the Termination rate for that Tier, and the Origination usage is assessed the Origination rate for that Tier ("Tiered Rates"). Tiered Rates are defined for each rate schedule. Standard Usage Guidelines are subject to change. Current Standard Usage Guidelines shall be posted on the Site and shall become effective immediately unless otherwise specified explicitly by Gafachi.
6.0 PAYMENT.
6.1 Payment for Service(s) and applicable taxes and/or surcharges is billed on a pre-pay basis, unless otherwise provided in, if attached, the "Financial Terms and Conditions" set forth in Addendum 1 to the Agreement. Customer understands that Service(s) will not be provisioned unless and until sufficient pre-payment is made, and Customer further understands that Service(s) may be suspended immediately if sufficient pre-payment is not made. It is Customer's ongoing responsibility to ensure that sufficient pre-payment is made prior to use of the Services.
6.2 Unless otherwise set forth in Addendum 1 (if attached) to this Agreement, Customer shall pay by wire transfer or credit card. Gafachi may immediately, upon notice made on the Site, temporarily or permanently, refuse to process certain credit cards or types of credit cards. Customer understands that credit card processing is subject to availability. Gafachi shall use commercially reasonable effort to post wire transfer payments to Customer's account once Gafachi receives notification of the receipt of the wire transfer. Customer understands that any type of payment made may be delayed in posting to Customer's account, and that service may be interrupted due to a lack of sufficient positive balance during any such delay.
6.3 Gafachi reserves the right to charge Customer, and Customer agrees to pay Gafachi, for any reasonable fees incurred as well as Gafachi's administrative expenses associated with credit card processing, wire transfer receipt, and other bank surcharges, fees, and penalties associated with Customer's payments.
6.4 Gafachi reserves the right to debit Customer's credit card(s), in addition to other means provided by law and/or equity, in order to recover any and all charges assessed.
7.0 TECHNICAL SUPPORT.
Gafachi provides Customer technical support at its sole discretion and as limited to the services and equipment provided hereunder. Technical support is rendered from Gafachi's or a partner's premise, as available via email and telephone. Support for other applications and uses is not provided or implied.
8.0 NO LIABILITY.
Customer agrees not to hold Gafachi, Gafachi's principals, agents, employees, officers, directors, Affiliates, or participants liable for any advice, representations and/or Service(s). Customer releases Gafachi, Gafachi's principals, agents, employees, officers, directors, Affiliates, and/or participants from claims, demands and damages (actual or consequential) of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or in any way connected with any such disputes that may arise through the use of the Site and/or Service(s).
9.0 INDEMNIFICATION.
Customer agrees to defend, indemnify and hold Gafachi, its Affiliate(s) and its vendors harmless from any claims or damages relating to this Agreement.
10.0 GOVERNING LAW.
The laws of the State of New York govern this Agreement. Customer acknowledges and agrees that New York courts have jurisdiction over this agreement, that Monroe County, New York is an appropriate place for venue of any litigation, and that all litigation, to the extent possible, shall be in Rochester, New York.
11.0 CONFIDENTIALITY.
For the entire term of this Agreement and for a period of one (1) year after its termination, each Party shall maintain the confidentiality of all information or data of any nature provided to it by the other Party that contains a conspicuous marking identifying it as "Confidential" or "Proprietary" (the "Information"). Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect Information it receives from the other Party as it accords to its own confidential and proprietary information. The above requirements shall not apply to Information, which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party, or any third party, is already publicly available through no breach of this paragraph, or has been previously independently developed by the receiving Party. This Agreement shall not prevent any disclosure of Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of the required disclosure.
12.0 NOTICE.
Except as otherwise provided herein, all required notices shall be in writing, transmitted to the Parties' addresses specified in the signature page or such other addresses as may be specified by written notice, and will be considered given either: (i) when delivered by email, so long as duplicate notification is sent via US Mail; (ii) if sent in the U.S., when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or (iii) when delivered by an overnight courier service.
13.0 EXPORT REGULATIONS.
The Parties acknowledge and agree that both (i) certain equipment, software and technical data which may be provided or utilized in connection with the furnishing of the Services hereunder; and (ii) the use of such services may be subject to export, re-export or import controls under the United States Export Administration Regulations or similar regulations of the United States or of any other country.
14.0 MISCELLANEOUS.
14.1 Any section or any other provision of this Agreement which is or becomes illegal, invalid or unenforceable shall be severed herefrom and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof, which provisions shall remain in full force and effect.
14.2 Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement.
14.3 Failure of either Party to insist on performance of any term of condition of this Agreement or to exercise any right or privilege hereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege.
14.4 The relationship between the Parties shall be that of independent contractors, and nothing herein contained shall be deemed to constitute a partnership or joint venture between them or a merger of their assets or their liabilities or undertakings. Neither Party shall have the right to bind the other Party, except as expressly provided for herein.
14.5 This Agreement represents the entire understanding between the Parties in relation to the matters herein and supersedes all previous agreements whether oral or written made between the Parties in relation to the subject matter thereof.
14.6 Each Party represents and warrants to the other that the execution of this Agreement and the performance of such Party's obligations hereunder have been duly authorized and that this Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms.
15.0 PAYPHONE SURCHARGE.
Gafachi will assess a payphone surcharge, currently $0.59, but subject to change, on 100% of the payphone-originated coinless calls delivered to Customer's platform based on data in Gafachi's real-time call detail records as well as non real-time adjustments based on the information digits from the originating LEC ("Payphone Toll-Free Calls") for the purpose of compensating the Payphone Service Provider ("PSP") and the administrative expenses related thereto ("Payphone Surcharge"). In assessing the Payphone Surcharge, no consideration will be given to whether the call may have been pound re-originated or actually completed to a "called party". "PSP" means a payphone service provider as defined in the FCC Payphone Rules, and includes any person who is an aggregator, agent, assignee, or representative of a PSP for the purposes of collection of dial-around compensation provided by the FCC Payphone Rules. A Payphone Surcharge will be shown in the relevant call detail record, for which later adjustments may be made based on such non real-time data described herein. The effective payphone surcharge can be found in the then-current Terms, at http://www.gafachi.com/product/terms/.
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