Netpro Computer Corp. Terms
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Section A – Managed Services
1.1 Services under this Agreement shall be provided to Customer at a discounted base rate of $120 per hour (“Base Rate”) for work done from Monday through Friday from 8:00 a.m. to 5:30 p.m., and shall apply regardless of whether the Services are performed on-site, remotely or by telephone. Our non-contract rates are $160 per hour.
1.2 The Base Rate shall increase to $150 per hour (“Overtime Rate”) for Services provided to Customer before 8:00 a.m. and after 5:00 p.m. on weekdays, and on Services provided over weekends and during official holidays, unless otherwise stated in writing. Service shall include travel time to or from Customer’s premises or service sites at the base rate. This rate does not apply to afterhour’s work that has been prescheduled and approved by a Netpro computer corp representative.
1.3 In the event the customer request same day service the Base Rate shall increase to $160 per hour (“Rapid Response Rate”) for Services provided to Customer for work done Monday through Friday from 8:00 a.m. to 5:30 p.m., and shall apply for work done the same day. Service shall include travel time to or from Customer’s premises or service sites at the base rate.
1.4 Projects will be billed on a per project basis.
1.5 Company reserves the right to periodically increase its base rate and increased rate, and will provide Customer with no less than 30 days written notice thereof.
1.6 Services are based on actual time spent, regardless of the complexity of the problem or issues addressed. However, there is a one (1) hour minimum charge for services other than telephone calls. Plus a .5 hour travel charge
2. Terms, Payment & Collection Costs:
2.1 Company will invoice Customer upon completion of any additional hours, Rapid Response, 24×7, Help Desk or As Needed hours. Payment terms for any additional hours will be due upon receipt.
2.2 Projects will require a deposit that must cover all hardware and software expenses before commencement with the balance due upon completion.
2.3 Any payment not made within fifteen days of the invoice date shall be subject to a late fee of the maximum rate allowed by law from the date of invoice, until paid.
2.4 If Company enlists the services of a collection agency to collect any amounts due to it from Customer under this Agreement; Customer shall be responsible for and agrees to pay all such collection costs.
4.1 Customer acknowledges that the person paying for billed product and services is authorized to do so and may bind Customer to all the terms and conditions contained herein, and represents and warrants that such person is acting within the scope of his or her authority as an officer, director or duly authorized agent or employee of Customer.
5.1 All notices, requests and communications under this Agreement shall be in writing. Notice shall be deemed to have been given on the date of service if personally served or served by facsimile on the party to whom notice is to be given. If notice is mailed, it shall be deemed to be given within seventy-two (72) hours after mailing, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, and addressed to the party at the address set out below, or any other address that any party may designate by written notice from time to time.
6. Alterations to Services or Equipment:
6.1 If Customer alters any Services or Equipment conducted by Company without the express written consent of Company, Customer does so at its own risk and expense. Company shall not be liable or responsible for problems created as a result of Customer’s alteration of Services, Equipment and/or Customer’s network or system. If Customer wishes Company to correct or fix its alterations or problems relating thereto, such Services by Company will be considered a new project and Customer agrees that the same terms and conditions set out in this Agreement shall apply.
7. Obligation to Back-up Software:
7.1 Customer shall be responsible for maintaining backups of all critical software, documents, and applications on all of Customer’s file servers, personal PC’s, organizers, and other electronic equipment.
8. Reimbursement for Supplies:
8.1 On occasion, Company may need to purchase spare parts, other equipment, supplies, accessories or software; in that case, Customer shall be responsible to and agrees to reimburse Company for all such costs or expenses incurred under this project. No purchases will be made without prior Customer approval.
9. Customer Warranty re Software Licensing:
9.1 Customer warrants that all software it provides to Company for installation, configuration or use in any way, has been legally obtained and is properly licensed. Customer further warrants that it has legally purchased sufficient number of copies of such software and that it has not violated any licensing laws.
9.2 Company has no knowledge regarding licensing of software provided to it by Customer and Customer indemnifies Company for any installation, configuration or use of such software. Customer understands and acknowledges that that it shall be solely responsible and liable for all licensing and purchasing of software.
10. Limitation of Liability:
10.1 Company shall not be liable to Customer for direct damages greater than the amount or price payable hereunder for its Services. Further, Company shall not be liable to Customer for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether the claim alleges tortuous conduct (including negligence) or any other legal theory.
11.1 Company provides Services to Customer hereunder as independent contractor, and this Agreement shall not be construed as a partnership or joint venture.
12. Non Solicitation of Employees:
12.1 Customer acknowledges that Company has a substantial investment in its employees that provide Services to Customer under this Agreement and that such employees are subject to Company’s control and supervision. In consideration of this investment, Customer agrees not to solicit, hire, employ, retain, or contract with any employee of the other, without first receiving Company’s written consent.
12.2 If any employee terminates his or her employment with Company (regardless of the reason for termination), and is employed by Customer (or any affiliate or subsidiary of Customer) in any capacity either during or within a six (6) month period, Customer shall immediately pay Company an amount equal to 50% of the then current yearly salary or wage paid by Company to such employee.
13.1 Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting in any way the remaining provisions hereof or, to the extent permitted by law, rendering that or any other provision invalid, illegal or unenforceable.
14. Entire Agreement:
14.1 This Agreement contains the entire agreement between the parties regarding the subject matter herein, and supersedes any prior agreements or representations, whether oral or written. No agreement, representation or understanding not specifically contained herein shall be binding, unless reduced to writing and signed by Company and Customer.
16. Arbitration & Governing Law:
16.1 Any controversies arising out of or relating to this Agreement or the interpretation, performance or breach thereof shall be settled by binding arbitration in San Diego County. Judgment upon any award rendered by the arbitrator(s) may be entered and enforced in any court having jurisdiction.
16.2 California law shall govern the construction, validity, and interpretation of this Agreement and the performance of its obligations.
SECTION B – VoIP Services
Netpro Computer Corp provides Services with the reasonable skill and care of a competent service provider. Some Services may be provided using various network operators, and Netpro Computer Corp cannot be responsible for faults or interruptions in the Services arising on those networks, including networks operated by foreign network operators; for example, if Customer is making International calls or, for mobile users, using Netpro Computer Corp international roaming service.
Netpro Computer Corp provides 911 services only in certain locations. Netpro Computer Corp is required by federal law to suspend Services to a device should it be physically located at an address where Netpro Computer Corp cannot provide 911 services.
The street addresses provided by Customer are the registered locations and are the addresses that shall be reported to the 911 system. They are also the addresses to which the 911 system shall send emergency help unless callers request that the answering 911 operator send help to another location. Customer has the absolute obligation to notify Netpro Computer Corp of any changes in the registered locations.
Customer understands that the 911 services provided by Netpro Computer Corp are limited by comparison with traditional 911 telephone services. Such limitations include, without limitation, connection failures, degradation of bandwidth, denial of service attacks, worms, hackers, viruses, and any other known or unknown conditions that interfere with the speed or capacity of the Internet or Internet service, loss of electrical power at the registered location, delays that may occur in making a registered location available in the 911 database, or if Customer devices are damaged or defective.
Customer will be subject to a charge of $250 per event if Customer makes calls to 911 from any phone, phone switch, gateway, or other device that is not registered with Netpro Computer Corp. Customer will also be subject to a charge of $250 per event if Customer makes 911 calls after changing Customer’s telephone numbers to a telephone numbers not registered on a phone, phone switch, or gateway connected to Netpro Computer Corp.
Netpro Computer Corp will take commercially reasonable steps to secure Customer’s data and will not use, disclose or otherwise make pubic, internally or externally, any data Customer provides Netpro Computer Corp, whether in writing or virtually, without Customer’s prior written approval or the lawful order of a court.
Acceptable Use Policy
Customer’s use of Netpro Computer Corp’s Services constitutes acceptance of the terms and conditions of this Policy as it may be modified by Netpro Computer Corp from time to time.
Customer must use the Services only in a manner that, in our sole discretion, is consistent with the purposes of such Services. Customer shall not engage in any activity (whether legal or illegal) that results in harm to Netpro Computer Corp or the Services, or any use that interferes with the provision or enjoyment of any of the Services.
Customer will be deemed in violation of this Policy if Netpro Computer Corp determines, in its sole discretion, that any action in connection with the use of the Services is inconsistent with the purposes of such Services or violates any local, state, federal or international law, statute, agency decision, regulation, ordinance, executive order or any other legally binding governmental directive, including without limitation the federal Can Spam Act of 2003, the Computer Fraud and Abuse Act (18 U.S.C. 1030 et seq.), the Telephone Consumer Protection Act (47 U.S.C. 227), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. 1601-1608) and the Federal Trade Commission’s amended Telemarketing Sales Rule, (collectively, “Laws or Regulations”).
Customer will also be deemed in violation of this Policy if Netpro Computer Corp determines, in its sole discretion, that that any action, whether or not in connection with such Customer’s use of the Services, has resulted in any harm to Netpro Computer Corp, its reputation, the Services, or other Netpro Computer Corp users; any third party blacklisting, blocking, filtering, or refusing any email or any other network application or communications protocol from Netpro Computer Corp or Customer, or interference in any manner with the free flow of email or any other network application or communications protocol from or to Netpro Computer Corp or Customer.
INDIRECT OR ATTEMPTED VIOLATIONS OF THIS POLICY, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON ANY CUSTOMER’S BEHALF, WILL BE DEEMED VIOLATIONS OF THE POLICY.
The following are some, but not all, of the actions prohibited under this policy if taken in connection with Customer’s use of the Services or in any other manner that results in harm to Netpro Computer Corp, the Services or any Customer as determined solely by Netpro Computer Corp, including, without limitation:
Creating, posting, storing, displaying, transmitting, retransmitting, forwarding, or distributing any material that, in our sole judgment, is or facilitates:
Obscene, indecent, profane, pornographic, threatening, libelous, defamatory, or otherwise objectionable information of any kind, including material that restricts a civil liberty
An action that restricts or inhibits any person, whether a Customer of the Services or otherwise, in its use or enjoyment of the Services or any other systems, services or products
Intended to solicit our customers for any competitive service
A violation of any rights of any person, including but not limited, to rights protected by copyright, trademark, trade secret, patent, or other intellectual
property or similar Laws or Regulations, such as the dissemination or distribution of “pirated” or other software products that are not appropriately licensed
A violation of any accepted industry standards, whether or not expressly mentioned in this Policy, designed to prevent interference with privacy rights, prohibit misuse of any system resources (including, without limitation, spamming), or stop illegal or otherwise unethical Internet usage
Creating, facilitating, transmitting, retransmitting, forwarding or distributing any:
o “Spam” email or SMS text messages as those terms are generally understood
o Unwanted bulk email or SMS text messages, whether commercial or otherwise, including, but not limited to, bulk mailing or SMS text messaging of commercial advertising, informational announcements, and political tracts
o Email or SMS text messages that contain material that otherwise violates or facilitates a violation of this Policy
o Email or SMS text messages that falsify or hide or are routed so as to falsify or hide the original sender’s address
o Email or SMS text messages that falsify any information for the purpose of defrauding the recipient
o Any harassing email or SMS text messages, whether through language, frequency, or size of messages
o Any email or SMS text message “chain letters” or other “pyramid schemes”
o Email or SMS text messages relayed without the express permission of that site, service, system or network
o Email or SMS text message volume deemed by Netpro Computer Corp to be excessive
o Commercial or bulk email or SMS text messages containing false or misleading subject line, statements, claims, or representations
o Email or SMS text messages that violate any Laws or Regulations
o Email or SMS text messages containing forged header information including, but not limited to, any attempt to circumvent the approval process for posting to a moderated newsgroup
o Consuming excessive resources of the Services, including CPU time, memory, disk space and session time using resource-intensive programs that negatively impact other users or the performance of our Services, systems or networks
o Advertising (including, without limitation, by hosting a website), transmitting, or otherwise making available any software, program, product, or service that is designed to violate this Policy, which includes the facilitation of the means to Spam, initiation of pinging, flooding, mail-bombing, denial of service attacks, and piracy of software
o Sharing the Services’ passwords or accounts of others without their express consent
o Attempting, or facilitating any attempt (whether or not successful) to violate the security of any system, network, or service (examples of system or network security violations include, without limitation, unauthorized access to or use of data
o Collecting or facilitating collection of replies to messages that violate this policy or that would violate this Policy if they had been sent via the Services
o Sending an unsolicited advertisement to a facsimile machine or any other device capable of receiving facsimiles without the prior express consent of the recipient
o Making any call that is prohibited under the Telephone Consumer Protection Act (47 U.S.C. 227), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. 1601-1608) or the Federal Trade Commission’s amended Telemarketing Sales Rule or that otherwise violates any Laws or Regulations
o Invading, or facilitating the invasion of, the privacy of any third party in any way
o Harvesting personal information about other users, including Internet addresses, without express consent of such users
o Gathering or using, without express consent, contact information that is made available through the Services for unwanted mass communications, whether through email, direct mail, telephone, or facsimile
o Using any software downloaded from or provided by Netpro Computer Corp in any manner other than in accordance with the end-user license agreement accompanying the software. All such software is copyrighted by Netpro Computer Corp.
Netpro Computer Corp does not normally monitor the content of websites, email, news groups, or other materials created or accessible over its Services, and is not responsible for the content thereof. However, Netpro Computer Corp reserves the right to monitor the Services, and to take any action it deems appropriate based on information discovered in connection with any such monitoring. Netpro Computer Corp may investigate incidents involving alleged violations of this policy, may cooperate with law enforcement and other third parties, and may take any action it deems appropriate based on information discovered in such investigations. Customer acknowledges that failure by Netpro Computer Corp to take action in response to any violation by any customer of this policy will not be deemed a waiver of Netpro Computer Corp’s right to take action in response to any other violation of this Policy by that or any other customer.
Please report any activity in violation of this Acceptable Use Policy to: abuse@Netpro Computer Corpservices.com or by mail. Please be sure to include a valid return address. Where possible, please include in the complaint: 5 010114A
The IP address used to commit the alleged violation
The date and time of such violation
Evidence of the violation including, if applicable, the complete text of the objectionable message, including all headers.
Please send complete messages, not excerpted parts of a message.
NETPRO COMPUTER CORP MAY, IN ITS SOLE DISCRETION, SUSPEND OR TERMINATE THE PROVISION OF THE SERVICES OR ANY PART THEREOF TO A CUSTOMER AT ANY TIME AND WITHOUT WARNING FOR ANY VIOLATION OF ANY PART OF THIS POLICY. NETPRO COMPUTER CORP MAY ALSO BRING LEGAL ACTION TO ENJOIN VIOLATIONS AND/OR COLLECT DAMAGES CAUSED BY VIOLATIONS OF ANY PART OF THIS POLICY.
Exporting Devices and Software
Customer agrees to comply with all trade regulations and export control laws, both domestic and foreign. Devices, software, and any underlying information accessed or transferred by Customer using the Services may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. § 2401, et seq.) and the Export Administration Regulations (50 C.F.R. § 730-774), as well as the import regulations of other countries. Customer agrees not to export or re-export any devices or software to any foreign country. Any information transferred by Customer using our services to any foreign country, entity, or person must comply with the U.S. Export Administration Act and the Export Administration Regulations.
Netpro Computer Corp offers certain voice, text, video, and data services on an unlimited basis. This policy applies to such services.
Unlimited services are intended for traditional business use.
Unlimited services are intended to be used for the following traditionally limited business purposes:
Internet browsing, non-spam email, and intranet access (including access to corporate intranets, email and individual productivity applications like customer relationship management, and sales force and field service automation)
Live person to person calls.
Unlimited voice or data service plans cannot be used with server devices, host computer applications or other systems that drive continuous heavy traffic or data sessions. Examples of such prohibited uses include, without limitation, call centers, auto-dialers, educational institutions, mass-marketing, polling, web camera posts or broadcasts, continuous file transfers, automatic data feeds, telemetry applications, automated functions or any other machine-to-machine applications. Such sessions cannot be used as substitute for private lines or frame relay connections.
Netpro Computer Corp’s pricing for unlimited services is based on the average usage of an average customer in Netpro Computer Corp’s sole determination.
Netpro Computer Corp reserves the right to deny or terminate services or apply additional charges, without notice, to anyone who, in Netpro Computer Corp’s sole determination, uses unlimited service in any manner prohibited above, or whose use adversely impacts Netpro Computer Corp’s network or service levels.
Similarly, Netpro Computer Corp reserves the right to deny or terminate services or to apply additional charges where usage, in Netpro Computer Corp’s sole determination, is inconsistent with individual business use or otherwise indicates possible resale, abuse or automated use of unlimited plans.
Consistent with this Policy, the limit per month for laptop cards is five gigabytes and tethering any data-enabled handset to another device so as to utilize the data-enabled handset as a wireless modem is prohibited.
Netpro Computer Corp provides remote support for the Services at no cost to Customer. Should Customer experience an issue related to the Services, Customer shall advise Netpro Computer Corp and Netpro Computer Corp will diagnose the issue.
The purpose of the diagnosis is to determine the cause of the issue. If the diagnosis indicates that the problem is due to outage or malfunction on Netpro Computer Corp’s part, Netpro Computer Corp shall take the steps necessary to resolve it in a timely manner.
Unless otherwise specifically provided, Customer agrees to arrange for support other than from Netpro Computer Corp in the event that diagnosis indicates that the problem is not with the Services. If Customer does not have such support and Customer desires Netpro Computer Corp’s support, Netpro Computer Corp may charge Customer on a time and materials basis at our then‐prevailing rates for such support.
HOSTED AND SIP TRUNKING SERVICES
Call Center Applications
Call-center applications including, but not limited to, auto-dialers, and any use not consistent with normal business voice services are prohibited.
A charge of $.10 per call will be applied at Netpro Computer Corp’s sole discretion if a volume of calls does not meet the following:
Answer/seizure ratio of 50 percent or higher
Call duration of 30 seconds or longer
More than one call per minute over a sustained period of time from a single telephone number.
Call Origination Information
Call Origination Information refers to the originating information included in the call header (e.g., calling party number and originating ANI). Customer shall not suppress, 6 010114A
alter, or otherwise manipulate call detail to delete, obscure, or change the Call Origination Information of any traffic delivered to Netpro Computer Corp.
Customer shall not permit end‐users to suppress, alter, or otherwise manipulate call detail to delete, obscure, or change the Call Origination Information of any traffic delivered to Netpro Computer Corp, except when consistent with industry standards for caller identification.
Customer shall indemnify, defend, and hold harmless Netpro Computer Corp, its affiliates, and directors, officers, employees, agents, subsidiaries, affiliates, designees, and assignees from and against any third‐party claims, demands, actions, losses, damages, assessments, fines, penalties, charges, liabilities, costs or expenses, including reasonable attorney fees, arising from Customer’s failure to provide accurate Call Origination Information.
If Call Origination Information is not available, unreadable, or malformed, Netpro Computer Corp or its underlying carriers may consider the call of “Indeterminate Jurisdiction” and will use the rate of $0.10 per minute for the purpose of rating the call.
If originating information is available, Netpro Computer Corp shall use that information to determine jurisdiction (interstate or intrastate) and to assign each call the applicable rate. If originating information is not available, valid or able to be determined, Netpro Computer Corp considers the call of “Indeterminate Jurisdiction” and assign the default Indeterminate Rate.
Customer is solely responsible for selection, implementation, and maintenance of security features for protection against unauthorized calling, and Netpro Computer Corp shall have no liability therefore. Customer is solely responsible for payment of long distance, toll, and other charges incurred through the use of the Services. Customer shall defend, indemnify and hold harmless Netpro Computer Corp from all claims and losses arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused under any circumstance from paying Netpro Computer Corp for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event Netpro Computer Corp discovers fraudulent calls being made, nothing contained herein shall prohibit Netpro Computer Corp from taking immediate action that is reasonably necessary to prevent such calls from taking place.
By default, and to protect Customer from fraudulent call charges, Netpro Computer Corp does not permit calling to high-cost destinations. Customer may request that this restriction be removed, in whole or in part, at any time in writing. Customer’s signature on said waiver Customer’s continuing agreement that Customer is responsible for the costs of any calls that may be made, including any associated charges.
Notwithstanding the foregoing, it is understood that Netpro Computer Corp is under no obligation to investigate the authenticity of calls charged to Customer’s account and shall not be liable for any fraudulent calls processed by Netpro Computer Corp and billed to Customer’s account.
Remote Number Services
Netpro Computer Corp’s Remote Number Service shall be used for one concurrent call.
If at any time Customer connects to the Services using a service provider other than Netpro Computer Corp (including, without limitation, cable, DSL, dedicated circuit from a third party, or wireless), Customer agrees that Customer does so at Customer’s own risk, and that Netpro Computer Corp is not responsible for the quality of service or reliability of such connections, and that Netpro Computer Corp does not provide support for such connections.
Unless specifically included, our setup of Services on Customer’s behalf does not include hardware, software licenses, hardware and software maintenance, or customizations as required to meet Customer’s specific requirements. Charges also do not include integration with Customer’s phone system, unless specifically provided.
Netpro Computer Corp is not responsible for equipment or infrastructure beyond the demarcation point located at the Customer premises or equipment, infrastructure or services provided by third parties, including but not limited to analog modems, fax machines, and other communications devices, alarm circuits, PBXs or key systems voicemail systems, firewalls, databases, or software of any kind.
Customer agrees to arrange, at Customer’s expense, for any extension of the existing demarcation point within Customer’s facilities, should such extension be required for delivery of the Services.
Unless otherwise specifically provided, Customer is responsible for protecting Customer’s network and equipment from hackers, worms, viruses and other traffic from the Internet, and agrees that Netpro Computer Corp is not liable, at law or in equity, for any damage of any kind that Customer may sustain as a result of security breaches.
Customer is responsible for providing power at Customer’s premises. Customer further agrees to provide UPS to all equipment used to deliver Services, and to ensure that Customer’s facilities are properly grounded.
Access to Customer Premises
In the event Netpro Computer Corp or a provider of Third‐Party Services needs access to Customer’s site to maintain or repair or otherwise affect the Services, Customer shall cooperate in a timely manner and provide access. In the event Customer does not provide the required assistance and/or access, Netpro Computer Corp may suspend the Services until such access has been granted. 7 010114A