This Hosted Service Terms and Rental Agreement, hereinafter referred to as “AGREEMENT” is made effective as of the date the quote was signed by the client representative and constitutes a contract between Diverse CTI, Inc. and the client entity named on the quote. This client entity is hereinafter referred to as “CUSTOMER”. The following states the terms, conditions, and definitions of the agreement between the aforementioned parties as follows:
SERVICES SUBJECT TO RENTAL AGREEMENT. Diverse CTI, Inc. shall rent, with no arrangement to own anything including, but not limited to SERVICES, software, telephone number, or other tangible or intangible hardware, software, firmware, or other product or service, to the CUSTOMER, the SERVICES listed on the quote, hereinafter referred to as SERVICES.
DATE OF ACTIVATION: The date of activation of SERVICES shall be a reasonable date and will be determined by Diverse CTI, and will hereinafter be referred to as DATE OF ACTIVATION.
PAYMENT TERMS. The CUSTOMER shall make monthly payments based on the formula below, hereinafter referred to as PAYMENT. The monthly PAYMENT will be based on the quote. Payments shall continue to be due on the 1st of each month, with the first payment due on the 1st of the first full month of service. These payments shall be due whether or not the CUSTOMER has received notice of payment due.
TAXES AND FEES. During the term of this AGREEMENT, the CUSTOMER shall pay all applicable taxes, assessments, and license and registration.
RENTAL PAYMENT RATE. The monthly PAYMENT will be calculated by multiplying the Quantity of each Item by the Per Unit per Month Price in the quote. PAYMENT shall be cumulative in nature.
SERVICE CHARGE. If any rental installment is not paid within 15 days after the due date, the CUSTOMER shall pay Diverse CTI, Inc. a service charge of $30.00. NON-SUFFICIENT FUNDS. The CUSTOMER shall be charged $30.00 for each check that is returned to Diverse CTI, Inc. for lack of sufficient funds.
RENTAL AGREEMENT TERM. This AGREEMENT shall begin on the above effective date and shall terminate after three full years of service unless otherwise noted in the quote. This AGREEMENT shall be in force until midnight, the day before the above effective date plus three years and will be known hereinafter as the TERMINATION DATE. This AGREEMENT can be terminated before the aforementioned TERMINATION DATE if the CUSTOMER purchases and implements a qualified telephone system server purchased from Diverse CTI, Inc. The TERMINATION DATE will be adjusted to the last day of the month of the date of the installation and cutover of said qualified telephone system server purchased from Diverse CTI, Inc.
TERMINATION. In the event of Customer’s early termination of this Agreement prior to the expiration of any fixed Term, CUSTOMER shall pay Diverse CTI, Inc all charges for service provided through the effective date of such termination, plus the balance of the Term’s monthly recurring costs. It is agreed that Diverse CTI, Inc.’s damages, if service were terminated prior to the expiration of the rental agreement term, would be difficult or impossible to ascertain. Accordingly, the terms of this paragraph are intended as liquidated damages and not as a penalty in the event of early termination. Termination of service shall not relieve CUSTOMER of its obligation to pay all fees for service accrued and owing up to and including the date of termination or any other amount payable to Diverse CTI, Inc.
RENEWAL OF TERM. At the expiration of the TERMINATION DATE, this agreement shall continue in full force and effect on a year-to-year basis unless thirty (30) days written notice of termination is given by either party to this agreement prior to the expiration of the current term. The CUSTOMER shall be required, upon termination of this Rental Agreement, to return any SERVICES or equipment which were not purchased to Diverse CTI, Inc.
TELEPHONE NUMBERS. All telephone numbers originally adopted on behalf of the CUSTOMER from the telephone company shall be ported back to the CUSTOMER or other entity designated by the CUSTOMER upon written request and upon lawful termination of this agreement. If no such request is made, all telephone numbers will become property of Diverse CTI, Inc. and retained, disconnected, returned to service, or otherwise at Diverse CTI, Inc.’s discretion. All telephone numbers rented to the CUSTOMER by DIVERSE CTI, Inc. may be changed, replaced, removed, terminated, or otherwise restricted from the use of the CUSTOMER at any time for any reason at the discretion of Diverse CTI, Inc.
CARE AND OPERATION OF SERVICES. The SERVICES may only be used in a proper and lawful manner. Use of services must comply with all laws, ordinances, and regulations.
MAINTENANCE AND REPAIR. Diverse CTI, Inc. shall maintain, at no cost to the CUSTOMER, the SERVICES in good repair and be operational according to the terms of TERMS OF SERVICE.
ACCEPTANCE OF SERVICES. The CUSTOMER shall test each item of SERVICES delivered pursuant to this AGREEMENT. The CUSTOMER shall immediately notify Diverse CTI, Inc. of any discrepancies between such items of SERVICES and the description of the SERVICES in the quote. If the CUSTOMER fails to provide such notice in writing within 10 days after delivery of the SERVICES, the CUSTOMER will be conclusively presumed to have accepted the SERVICES as specified in the quote.
WARRANTY. Diverse CTI, Inc. warrants that the SERVICES will remain in good working condition and agrees to maintain the SERVICES according to the terms of TERMS OF SERVICE. LIABILITY AND INDEMNITY. Liability for injury, disability, and death of workers and other persons caused by the SERVICES during the term of this AGREEMENT is the obligation of the CUSTOMER, and the CUSTOMER shall indemnify and hold Diverse CTI, Inc. harmless from and against all such Liability.
DEFAULT. The occurrence of any of the following shall constitute a default under this rental agreement:
RIGHTS ON DEFAULT. In addition to any other rights afforded Diverse CTI, Inc. by law, if the CUSTOMER is in default under this AGREEMENT, without notice to or demand on the CUSTOMER, Diverse CTI, Inc. may take over the SERVICES as provided by law, deduct the costs of recovery (including attorney fees and legal costs), repair, and related costs, and hold the CUSTOMER responsible for any deficiency. The rights and remedies of Diverse CTI, Inc. provided by law and this AGREEMENT shall be cumulative in nature. Diverse CTI, Inc. shall be obligated to sell, lease, or rent the SERVICES, otherwise mitigate the damages from the default, only as required by law.
NOTICE. All notices required, or permitted under this AGREEMENT shall be deemed delivered when delivered in person or by mail, postage prepaid, addressed to the appropriate party at the address shown for that party at the beginning of the AGREEMENT.
ASSIGNMENT. The CUSTOMER shall not assign or sublet any interest in this AGREEMENT or the SERVICES or permit the SERVICES to be used by anyone other than the CUSTOMER or CUSTOMER’s employees, without prior written consent from Diverse CTI, Inc.
ENTIRE AGREEMENT AND MODIFICATION. This AGREEMENT constitutes the entire agreement between the parties. No Modification or amendment of this AGREEMENT shall be effective unless in writing and signed by both parties. This AGREEMENT replaces any and all prior agreements between both parties.
GOVERNING LAW. This AGREEMENT shall be construed in accordance with the laws of the State of Oklahoma.
SEVERABILITY. If any portion of this AGREEMENT shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this AGREEMENT is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
WAIVER. The failure of either party to enforce any provision of this AGREEMENT shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this AGREEMENT.
CERTIFICATION. The CUSTOMER certifies that the application, statements, trade references, and financial reports submitted to Diverse CTI, Inc. are true and correct and any material misrepresentation will constitute a default under this AGREEMENT.
ARBITRATION. Any controversy or claim relating to this AGREEMENT, including the construction or application of this AGREEMENT, will be settled by binding arbitration under the rules of the American Arbitration Association, and any judgment granted by the arbitrator(s) may be enforced in any court of proper jurisdiction.
PERFORMANCE: In the event of material breach of this agreement, either party may cancel this agreement upon 60 days written notice, this being the exclusive remedy available. DIVERSE CTI, Inc. does not make any warranties in respect to the SERVICES either express of implied, except as provided in this agreement. All warranties shall be void as to equipment damage, or equipment rendered unserviceable by negligence, misuse, theft, vandalism, or by moving, repair, relocation, or alteration not authorized by DIVERSE CTI, Inc. DIVERSE CTI, Inc. shall in no event be liable for any special, incidental, or consequential damages for loss, damages or expense directly or indirectly arising from CUSTOMER’s inability to use the SERVICES either separately, or in combination with any other SERVICES or from any other cause. CUSTOMER hereby grants DIVERSE CTI, Inc. full and unrestricted access to the premises on which the SERVICES is located for maintenance purposes.
PERIPHERAL SERVICES: Peripheral “plug in” items such as headsets, dialers, UPS SERVICES, answering machines & cordless/wireless telephones etc., which are not provided by DIVERSE CTI, Inc, are not covered by this agreement.
CABLING AND SUITE PREPARATION: Cabling, termination of jacks, and all other infrastructure preparation related to the activation of SERVICES is not included or in any way provided for in this AGREEMENT, and will need to be ordered by CUSTOMER from DIVERSE CTI, Inc. at least 10 working days before DATE OF ACTIVATION.
DATA NETWORK READINESS: The CUSTOMER takes full responsibility for the physical data network, including but not limited to patch cables, physical interfaces, cabling, patch systems, switches, routers, wireless appliances, firewalls, computer network servers of any and all types, printers, appliances. The physical data network as described in the previous sentence, shall hereinafter be referred to as the DATA NETWORK. The CUSTOMER takes full responsibility for the flow of data packets on the DATA NETWORK and the condition of the DATA NETWORK including but not limited to internet connectivity, packet delivery and condition of packets within the network and over the internet or wide area network to which it is communicating regardless of protocol, voice over internet protocol of all types and codecs, hereinafter referred to as VoIP, packet delivery, conversation quality, telephone related services, quality of service, traffic policing, traffic shaping, packet fragmentation and reassembly, bandwidth utilization, bandwidth overhead, packet prioritization, software, licenses. The CUSTOMER agrees to remit payment to DIVERSE CTI for any and all invoices or charges related to labor, service, equipment, configuration, troubleshooting, problem solving, delays, waiting periods, etc. related to making the DATA NETWORK acceptable for installation or EQUIPMENT. DIVERSE CTI may at it’s discretion postpone installation until it determines the DATA NETWORK is suitable for installation of EQUIPMENT. A network assessment may be purchased by the CUSTOMER from DIVERSE CTI however the customer remains responsible for charges related to DATA NETWORK readiness even after the assessment is satisfied.
VOICE OVER IP DISCLAIMER:
DIVERSE CTI does not guarantee, warranty, or in any way make any promise, as to the quality, reliability, or fidelity of any and all voice over IP related technologies. In the event of any problem, interruption or failure of voice over IP related service, DIVERSE CTI shall not be held legally or financially responsible, liable, or answerable. DIVERSE CTI shall not be held legally or financially responsible, liable, or answerable, for any interruption or failure of voice or data service, including but not limited to missed calls, missed words or parts of conversations, loss of income or revenue, internet access, server access, software access, file access, printer access, or data network appliance access. DIVERSE CTI will not be held legally or financially responsible, liable, or answerable, for any service level agreement, contract, contract provision, cancellation costs and/ or penalties or any other financial, material, or other loss incurred from internet providers, telephone service providers, or other third party service providers. DIVERSE CTI will not be held legally or financially responsible, liable, or answerable, for any health related harm, including but not limited to sickness, illness, tumors, cancers, or other health problems due to any equipment, installation, or services we recommend, install or sell. In no event shall DIVERSE CTI be liable for any direct, indirect, incidental, punitive, or consequential damages of any kind whatsoever with respect to voice over IP related technologies or the DATA NETWORK.
TERMS OF SERVICE: In consideration of the mutual agreement herein contained, Diverse CTI, Inc. agrees to service the SERVICES described in the quote in accordance with the following terms & conditions:
