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FASCOMM,
L.L.C. (“FASCOMM”) and Purchaser agree
as follows:
1. Services. The term “Services” as
used throughout this Agreement may include all services provided
by or through FASCOMM, and specifically, the Services identified
in any FASCOMM Purchase Orders for Services ordered by Purchaser.
2. Price and Payment. In consideration for the
Services to be provided by FASCOMM, Purchaser will pay FASCOMM a
monthly or quarterly price for Services in accordance with the prices
and form of payment set forth in the FASCOMM Purchase Order (the
“Purchase Order”), incorporated herein
by this reference. Prices are subject to change with thirty (30)
days advance notice to Purchaser. Payment shall be made automatically
by credit card on a recurring basis, one time each month or quarter
in advance for ordered Services. FASCOMM is hereby authorized to
make automatic monthly or quarterly charges against Purchaser’s
credit card. This authorization shall be cancelable by Purchaser
only upon written notice to FASCOMM, delivered either by facsimile
transmission or United States Mail, first class postage prepaid,
within ten (10) business days prior to the first day of the next
succeeding month or quarter. Alternatively, FASCOMM may invoice
Purchaser for Services on a monthly or quarterly basis in advance
of activating Services. Payment shall be due ten (10) days after
the date of FASCOMM’s invoice (the “Invoice
Date”). Purchaser’s payments will not be considered
late until ten (10) business days after the Invoice Date (the “Grace
Period”). A $20.00 late fee shall be assessed for
all payments received after the Grace Period. A service charge of
$25.00 will be assessed for any returned check or credit/debit card
denial. Purchaser also agrees to pay any collection costs and attorneys’
fees to collect past due accounts. There shall be no refund of any
portion of payments made for unused monthly or quarterly Services
upon termination or cancellation of Services by either party, or
for any other reason, except as provided in the Purchase Order.
3. PIN Codes. Purchaser agrees to guard its PIN
codes and to keep them confidential to prevent any unrelated third
party or unauthorized usage on Purchaser’s account. If Purchaser
suspects any unauthorized usage, Purchaser will report it to Customer
Service immediately at 800-507-0577. Purchaser understands that
the right to use one PIN set is concurrent within Purchaser’s
organization. While Purchaser may share its PIN set within its organization,
Purchaser acknowledges and agrees that simultaneous use of its PIN
set will result in placing multiple calls into one conference. Purchaser
agrees that its PIN codes and access numbers may be changed as determined
by FASCOMM in its sole discretion for security and fraud protection
purposes.
4. Term. This Agreement shall automatically renew
each month unless otherwise provided in the Purchase Order (the
“Service Term”). The term of this Agreement
shall be for the Service Term or until Purchaser or FASCOMM terminate
this Agreement as expressly provided for herein and subject to Purchaser’s
payment obligations herein.
5. Cancellation by Purchaser. If Purchaser desires
to discontinue Services, Purchaser shall provide notice to FASCOMM
in writing (as provided herein) thirty (30) days prior to the requested
cancellation date and shall continue to pay for Services until the
expiration of the Service Term. In addition, if
Purchaser has agreed to purchase Services for a specified length
of time and receives a discounted rate, Purchaser understands and
expressly agrees to pay all fees and charges due for the unexpired
portion of such term within ten (10) days of termination.
6. Suspension and Cancellation. FASCOMM may suspend
Services under this Agreement upon (i) Purchaser’s failure
to pay any amounts invoiced hereunder; or (ii) FASCOMM’s determination,
in its reasonable discretion, that Purchaser has used the Services
fraudulently, unlawfully or abusively, or (iii) Purchaser’s
credit is denied to FASCOMM on any monthly or quarterly charge when
Purchaser is paying monthly or quarterly on an automated basis.
Purchaser expressly acknowledges that FASCOMM has the right to cancel
any and all Services at any time, without prior notice or liability
therefore, for conduct which FASCOMM, in its sole discretion, determines
is in violation of this Agreement or is otherwise harmful to FASCOMM’s
interests or the interests of others. No suspension or cancellation
of Services hereunder shall excuse Purchaser from its payment obligations
hereunder.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
AND INDEMNITY. PURCHASER UNDERSTANDS AND AGREES THAT (A)
ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”,
WITHOUT WARRANTY OF ANY KIND; (B) FASCOMM DOES NOT WARRANT THAT
ANY SERVICES WILL BE RECEIVED UNCORRUPTED OR UNINTERRUPTED OR WITHIN
A REASONABLE PERIOD OF TIME; (C) FASCOMM DOES NOT CONTROL, HAS NO
OBLIGATION TO MONITOR AND MAKES NO WARRANTY OR REPRESENTATION REGARDING
THE INFORMATION THAT MAY BE RECEIVED OR DISCLOSED WHILE USING THE
SERVICES; AND (D) WHILE USING THE SERVICES, INFORMATION THAT MAY
BE OFFENSIVE AND INDECENT MAY BE RECEIVED AND FASCOMM CANNOT PREVENT
SUCH RECEIPT. PURCHASER FURTHER AGREES THAT FASCOMM, ITS OFFICERS,
DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS
AND THEIR AFFILIATED ENTITIES (COLLECTIVELY, THE “RELEASED
PARTIES”) SHALL NOT BE LIABLE FOR ANY LOSS, LIABILITY,
DAMAGE OR EXPENSE (INCLUDING ATTORNEYS’ FEES) DIRECTLY OR
INDIRECTLY ASSOCIATED WITH OR RELATED TO ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (COLLECTIVELY, THE “CLAIMS”)
BASED ON OR ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES, EVEN
IF SUCH CLAIM RESULTS FROM OR IS ATTRIBUTABLE TO THE NEGLIGENCE
(BUT NOT THE WILLFUL MISCONDUCT) OF ANY OF THE RELEASED PARTIES
OR ANY PARTY FOR WHICH ANY OF THE RELEASED PARTIES MAY BE RESPONSIBLE,
AND PURCHASER HEREBY RELEASES EACH OF THE RELEASED PARTIES THEREFROM.
THE AGGREGATE MAXIMUM LIABILITY OF ANY RELEASED PARTY, WHETHER IN
TORT, CONTRACT OR STRICT LIABILITY, SHALL NOT EXCEED THE AMOUNT
OR PRORATED PORTION THEREOF THAT PURCHASER PAID FOR THE SERVICES.
IN NO EVENT SHALL FASCOMM BE LIABLE TO PURCHASER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES,
EVEN IF FASCOMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
INCLUDING BUT NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OF ACCESS
TO SERVICES, LOSS OF DATA, DELAYS DUE TO NON-DELIVERIES, MIS-DELIVERIES
OR INTERRUPTIONS IN SERVICES REGARDLESS OF THE CAUSE. PURCHASER
WILL INDEMNIFY AND HOLD FASCOMM HARMLESS AGAINST ANY STATE OR LOCAL
SALES OR USE TAX (INCLUDING INTEREST AND PENALTIES THEREON) ARISING,
DIRECTLY OR INDIRECTLY, FROM OR IN CONNECTION WITH ANY SALE OF SERVICES
UNDER THIS AGREEMENT, EXCEPT AND TO THE EXTENT FASCOMM HAS ALREADY
COLLECTED SALES OR USE TAX FROM PURCHASER ON SAID SALE. PURCHASER
WARRANTS TO FASCOMM THAT, UNLESS FASCOMM HAS COLLECTED SALES OR
USE TAX APPLICABLE TO ANY SALE UNDER THIS AGREEMENT, PURCHASER WILL
DETERMINE AND REMIT SUCH TAX. UPON FASCOMM’S REQUEST, PURCHASER
WILL PRODUCE ALL APPLICABLE RECORDS REFLECTING ITS PAYMENTS OF STATE
SALE OR USE TAX ON SALES UNDER THIS AGREEMENT.
8. Force Majeure. Neither party shall be considered
in default of its obligations hereunder if performance of such obligations
is prevented or delayed by acts of God or government, war, terrorism,
riots, acts of civil disorder, labor disputes, failure or delay
of transportation, or such other causes as are beyond such party’s
control (except the payment of money by Purchaser, which shall not
be excused).
9. Notices. All notices given by any party or required
under this Agreement shall be in writing and addressed to the relevant
party at the addresses and facsimile numbers set forth in the Purchase
Order. Any such notice shall be deemed given when (i) deposited
in the United States mail, first class postage prepaid, or (ii)
sent by facsimile transmission, receipt confirmed.
10. Assignment. Purchaser shall not assign or otherwise
transfer its rights or obligations under this Agreement without
the prior written consent of FASCOMM. Any permitted assignment or
transfer hereunder shall not relieve Purchaser of its obligations
under this Agreement.
11. Governing Law and Jurisdiction. This Agreement
shall be construed in accordance with and governed by the laws of
the State of Missouri. The parties hereto expressly agree and submit
to the personal jurisdiction and venue of the court of St. Louis
County, Missouri and the United States District Court for the Eastern
District of Missouri with respect to matters arising in connection
with this Agreement.
12. Entire Agreement. This Agreement represents
the complete Agreement and understanding of the parties with respect
to the subject matter herein, and supersedes any other understanding,
written or oral. This Agreement may be amended from time to time
by additional written purchase orders and/or written confirmation
by FASCOMM of any subsequent Purchase Order which are hereby incorporated
as amendments to this Agreement. The foregoing amendments may change
the scope and nature of the Services and, accordingly, the amount
of the payment due from Purchaser. All such amendments shall be
subject to the terms and conditions of this Agreement. If any provision
within the Purchase Order or any amendment thereto shall contradict
or otherwise conflict with the Conferencing Access Terms and Conditions,
the Conferencing Access Terms and Conditions shall supersede and
control the interpretation and governance of this Agreement. If
any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of
this Agreement will continue in full force and effect.
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