Terms of Service
Service Request Order - A Service request that specifies a type and quantity of Service desired.
Customer - The person, firm, corporation or other entity that orders Service and is responsible for the payment of all charges for Service, as well as compliance with applicable Agreement and Tariff requirements.
Emergency Maintenance - Maintenance which, if not accomplished promptly by Echelon, could result in damage to Echelon's Network, degrade, or cause loss of Service to Customer, or other Echelon Customers.
FCC - Federal Communications Commission, a governing body as duly authorized by the federal government.
Government Charges - Charges, both retroactive and prospective, that Echelon is required or permitted to collect from Customers in connection with its furnishing Service. The charges result from the applications, enforcement or interpretation of existing, new or revised laws or regulations, actions taken by federal, state, local or foreign regulatory authorities, or judicial acts or decisions (collectively, “Government Activity”) that directly or indirectly impose costs on Echelon. Governmental Charges include, but are not limited to, those arising out of local, state, federal foreign and third part actions, programs or requirements, relating to Universal Service, number portability, TRS, E911, access, reciprocal compensation, franchising and CALEA.
Network - The communications and/or telecommunications network of one of the Parties.
Network Address Translation (NAT) - Network Address Translation is a method of network addressing using a primary gateway system to act as a buffer or a proxy between the Internet and an internal network.
Firewall - Any device, appliance or software that serves the purpose of managing, filtering, blocking and securing any network traffic.
Customer Premise Equipment - Any and all equipment required for the Customer to utilize the Service provided by Echelon. Customer Premise Equipment (CPE) is not provided by Echelon, nor shall Echelon offer any technical support for such equipment.
Internet - A public network of interconnected computers and devices.
Packet - A single envelop message of data using any protocol either public or private that may be specified by the IETF or other governing body.
Latency - A delay or amount of time, is an expression of how long it takes for a packet of data to get from one point to another
Jitter - The measurement of the difference between latency which may affect the performance of data transmissions.
Channel – A single channel for voice communication. This is the equivalent of a single telephone call.
Unlimited – Usage not metered or monitored for billing.
DID – Direct Inward Dialed Number. A telephone number that a customer may have assigned in order to receive telephone calls.
Toll Free – A telephone number that has no cost associated to the caller. However the callers telephone service provide may have associated fees for dialing toll-free.
Caller ID – A form of communication that transmits the telephone number of a caller to the recipient.
CNAM – Caller ID with Name is defined as caller ID, however the callers telephone service provider may also transmit the name of the caller along with the telephone number to the recipient.
E911 – Enhanced 911 is an emergency calling service that provides 911 dialing capabilities from a re-assignable address.
Number Porting – The ability to transfer a customers telephone number from a previous telephone service provider (losing carrier) to a new telephone service provider (winning carrier).
Service Term - The subscribed Service shall have a minimum Service term of one calendar month for the services defined herein. After the Service Term has been satisfied, Customer has the option to discontinue service once the Customer has provided Echelon a minimum of a 30-day written notice. If no notice from Customer is received, this Agreement shall continue for another Service Term of one calendar month. The customer is responsible for any outstanding balances as well as any port-out fees that may apply. The Customer must receive confirmation of a service termination request along with a termination confirmation dispatch from 3rd Echelon. It is recommended that the Customer contact 3rd Echelon from our website at http://www.3rdechelon.net/contact.asp for a quicker reponse.
Service Acceptance - Services ordered hereunder will not be binding on Echelon until this Agreement is executed by an authorized representative of the Customer. Acceptance of this Agreement may be subject to credit approval by Echelon. No changes to this Agreement will be accepted by Echelon once the Agreement has been authorized by the Customer. The Customer may not make changes to any part of this Agreement.
Service Term Applicability - These additional terms and conditions shall apply to Service Request Order hereunder for the duration of the ordered service.
Tax and Surcharge - All charges set forth in this Agreement are exclusive of all applicable foreign, federal, state and local taxes, which includes but is not limited to all use, sales, value-added, surcharges, excise, franchise, property, commercial, gross receipts, license, privilege or other similar taxes, levies, surcharges, duties, fees, or other tax-related surcharges (including the Universal Service Fund surcharge), whether charged to or against Echelon or Customer, with respect to the Services or underlying facilities dedicated exclusively to the Services described herein and provided by Echelon.
Invoicing - Echelon will invoice the Customer monthly for all subscribed Services. All non-recurring charges are invoiced in the first billing cycle after initiation of the associated Service, and fixed monthly recurring charges are billed at the beginning of each subsequent month. Any additionally due amounts, overage charges, tax and surcharges as defined herein shall be billed within the next billing period. All invoiced amounts are due upon receipt. Amounts not paid in full, within thirty (30) calendar days from receipt will be considered past due and are subject to an interest charge calculated from the past due date through the date of receipt of payment at the lesser rate of 5% per month or the maximum lawful rate allowable under applicable state law. Any past due amount extended past a period of thirty days (30) may be cause for the associated Services to be interrupted. Additionally, if service is interrupted, the Service Subscriber may be a charged a reactivation fee for services to be restored. The reactivation fee will be added to the next billing cycle for the Service Subscriber. If a Service Subscriber wishes to dispute an invoice, they may do so within 30 days of the invoice date. Service Subscribers are required to pay the full invoiced amount even if the invoice is in dispute. Service Subscribers can file billing disputes by contacting us by completing the contact form located at http://www.3rdechelon.net/contact.asp. Any amounts in dispute and not submited will be considered past due and will be forwarded to collections.
Payments - Echelon makes every effort to provide clear and accurate invoices for Services. With every effort to ensure that invoices can be easily understood the same effort is used in the collection of outstanding balances. Once any balances are marked as past due, the Customer will be notified in an attempt to collect these balances. If Echelon is not successful in the attempts to collect these balances, the balances and all information regarding the attempts and payments will be forwarded to final collections as well, information regarding these attempts will be reported to the appropriate credit agencies. All payments for service must be provided at least 15 days before the month of service. Any associated costs of collections will be charged to the Customer.
Termination - Not withstanding the content in the section titled "Agreement", either Party may terminate this agreement for cause. In addition, either party may terminate this agreement with prior written notice if the other Party (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; (iv) enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations. Upon termination a Customer may be eligible for a credit of up to one (1) month billing if an internal audit verified the service has not been used for that period. No further credits shall be provided under this provision.
Warranty and Disclaimer
Disclaimer of Warranties - Echelon makes no warranties of the fitness of Service as provisioned to the Customer. Echelon shall provide all Services as described herein without the warranty of any third party providers. As any third party provider of Echelon's Services cannot guarantee above 99.9% effectiveness, Echelon can only provide such warranties.
Disclaimer of Damages - WITHOUT LIMITING ANY EXPRESS LIABILITY PROVISIONS PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR ECHELON'S PROVISIONING OF THE SERVICES (INCLUDING BUT NOT LIMITED TO: (I) ANY SERVICE IMPLEMENTATION DELAYS/FAILURES; (II) LOST, DELAYED OR ALTERED MESSAGES/TRANSMISSIONS; OR (III) UNAUTHORIZED ACCESS TO OR THEFT OF SERVICE SUBSCRIBER'S TRANSMITTED DATA), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Liability Limitations - WITHOUT LIMITING THE PROVISIONS, THE TOTAL LIABILITY OF ECHELON TO SERVICE SUBSCRIBER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF: (I) DIRECT DAMAGES PROVEN BY SERVICE SUBSCRIBER; (II) THE AGGREGATE AMOUNT OF SERVICE CREDITS DUE UNDER THE APPLICABLE SERVICE EXHIBIT FOR THE AFFECTED SERVICE; THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. SERVICE SUBSCRIBER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMER AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN three (3) YEARS PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER.
Section 6 – “Force Majeure” and Local Law
Compliance With Laws - Each Party is solely responsible for obtaining all licenses, approvals, and regulatory authority for its operations. The Customer shall indemnify, defend and hold harmless Echelon from and against any third party claims, actions, damages, liabilities, costs, judgments or expenses (including attorney fees) arising out of or relating to any claim that the Customer's use of the Service is illegal and/or infringes upon a third party's intellectual property rights.
“Force Majeure” - Neither Party shall be liable to the other for any delay or failure in performance of any part of this Agreement to the extent that a “Force Majeure” event causes such delay or failure. The Party claiming relief under this Section shall notify the other in writing of the existence of the “Force Majeure” event relied on and shall be excused on a day-by-day basis to the extent of such prevention, restriction or interference until the cessation or termination of said “Force Majeure” event. Each Party will use reasonable efforts to minimize any Service interruptions that might occur as a result of planned system maintenance required to provision the Services.
Governing Law - This Agreement is governed by and shall be construed in accordance with the laws of the State of New York without regard to its choice of law principles, except and to the extent that the Communications Act of 1934, as amended and interpreted by the FCC, applies to this Agreement. Echelon reserves the right to suspend and/or terminate any service without liability where: (i) Regulatory Activity prohibits, restricts or otherwise prevents Echelon from furnishing such service; or (ii) any material rate, charge or term of such service is substantially changed by a legitimate regulatory body, governmental authority, or by order of the highest court of competent jurisdiction to which the matter is appealed. Where not inconsistent with the Regulatory Activity, shall provide service Subscriber with no less than thirty (30) days advance written notice prior to any suspension and/or termination of the services pursuant to this section. The parties consent to non-exclusive personal jurisdiction in any action arising out of this agreement brought in any State or Federal court sitting in New York.
Entire Agreement - This Agreement, together with all sections and Exhibits herein, constitutes the entire Agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior offers, contracts, agreements, representations and understandings made to or with the Customer by Echelon or any predecessors-in-interest, whether oral or written. Any additional or different terms in any purchase order or other response by the Customer shall be deemed objected to by Echelon without need of further notice of objection, and shall be of no effect or in any way binding upon Echelon. All amendments to this Agreement shall be in writing and signed by the parties.
Section 7 – Glossary of Terms
(1) "Affiliate(s)"” means: (i) any individual, corporation, partnership, limited liability company, limited liability partnership, practice, association, joint stock company, trust, unincorporated organization or other venture or business vehicle (each an “Entity”) in which a Party owns a twenty percent (20%) or greater equity interest; or (ii) any Entity which, directly or indirectly, is in control of, is controlled by or is under common control with a Party, as applicable, after applying the attribution rules of Section 318 of the Internal Revenue Code. For the purpose of this definition, control of an Entity shall include the power, directly or indirectly, whether or not exercised: (i) to vote fifty percent (50%) (or such lesser percentage as is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) or more of the securities or other interests having ordinary voting power for the election of directors or other managing authority of such Entity; or (ii) to direct or cause the direction of the management or policies of such Entity, whether through ownership of voting securities, partnership interest or equity, by contract or otherwise.
(2) "Cause" means a failure to perform a material obligation under this Agreement (including a payment obligation) which failure is not remedied, if curable, within thirty (30) calendar days (or alternatively, five (5) calendar days in the event of a payment default) of the defaulting Party's receipt of written notice thereof.
(3) "Direct Damages" means those damages that follow immediately upon the act done and which arise naturally or ordinarily from breach of contract, but as used herein shall expressly exclude any cover-type damages.
(4) "Exhibits" means those exhibits attached hereto pursuant to which Echelon shall provide and the Customer shall purchase the applicable Services.
(5) "Force Majeure" event means an unforeseeable event (other than a failure to comply with payment obligations) caused by any of the following conditions: act of God; fire; flood; sabotage; material shortages or unavailability or other delay in delivery not resulting from the responsible Party's failure to timely place orders therefore; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations, permits or restrictions; failure of a governmental entity to grant or recognize a right of way, war or civil disorder; or any other cause beyond the reasonable control of such Party.
(6) "Interruption" means the period during which any Service element fails to meet any applicable performance specifications as described. Interruptions are specifically not limited to total loss or discontinuance of service. Interruptions shall not include: (a) failures caused solely and directly by the Customer or Customer Premises Equipment; (b) failures during any force majeure condition; (c) failures due directly to the failure of power or equipment provided by the Customer; or (d) failures due to the Customer scheduled maintenance and repair. An Interruption begins when Echelon first becomes aware of the failure through initiation of a trouble ticket regarding the Service outage by the Customer to Echelon, or notification of trouble by internal network surveillance, or if release of the affected Service element is necessary for repair, after such Service element is so released. An Interruption ends when the repaired or restored Service element has been accepted by the Customer in accordance with this Agreement.
(7) "Party" means either Echelon or the Customer, and “Parties” means collectively Echelon and the Customer.
(8) "Past Due Date" means thirty days after the due date of the Customer receipt of Echelon's invoice for Services.
(9) "Regulatory Activity" means any regulation and/or ruling (including modifications thereto) by any regulatory agency, legislative body or court of competent jurisdiction.
Notices required or permitted under this Service Agreement shall be in writing and delivered by hand, certified mail, return receipt requested, certified or confirmed receipt electronic mail or message (e-mail) or by a reputable courier service to the contacts whose titles and business addresses appear within and such notice shall be effective on the date of receipt. Any notice delivered by hand shall be deemed received at the time of delivery and any notice sent by certified mail or courier shall be deemed to have been received on the date shown as received or upon the return receipt. Any electronically transmitted notices must receive a confirmation in order to certify the receipt of the notice.
Section 8 – Service Acceptance Criteria
All Services subscribed herein by the Customer shall meet all standards of such Service. This includes but is not limited to, any Internet Engineering Task Force (IETF) Request For Comment (RFC) specifications, Institute of Electrical and Electronics Engineers (IEEE) specifications and BellCore specifications.
Section 9 - Maintenance
At no cost to the Customer, Echelon shall provide such remedial and preventive maintenance services as are necessary to keep the Services and their component elements in good working order consistent with the terms and conditions of this Agreement and the applicable manufacturers' specifications.
A Service element shall be eligible for maintenance immediately upon the start of Service date for such Service element.
Following receipt of the Customer notification of a suspected failure of, error or trouble in a Service (a “Trouble Call”), Echelon shall exert best efforts to respond to remedy reported failure.
Any maintenance performed by Echelon on any network, system, appliance, software or otherwise which will or could affect any Service provided to the Customer will be coordinated and scheduled through the Echelon Customer notification system.
Acceptable Usage Policies
Echelon shall maintain that the Customer may not use any Service for any activity that may be deemed illegal in any local, state, federal or foreign (where treaties are accepted) purposes. All Service provided is intended for use by the Customer any not any third party of the Customer. Specific information regarding use and law is available on the website for Echelon's acceptable Use Policy at http://www.3rdechelon.net/AUP.
Conditions of Service
Echelon is an Internet, telecommunications and Private Network Service provider. Therefore policies regarding usage may change based on local, state, federal and international law. All policies and conditions are subject to change accordingly and are noted on our online AUP at http://www.3rdechelon.net/AUP. Further information regarding terms of service can be found at http://www.3rdechelon.net/TOS. Echelon reserves the right to change the availability, conditions, rates and access methods of all Services. Echelon shall provide the Customer with a minimum notification of thirty days when any change of Service will commence.
The Customer accepts all terms and conditions set forth within this Agreement and orders Services as described and identified herein.
Should the customer require new DID's or ported DID's the customer must complete the required forms. Inbound service may be affected if these forms are not completed.