1. Agreement : This agreement between the Customer (may also be referred to as “You”) and DynaLink, sets forth the legal rights and obligations governing the DynaLink offer. This Agreement consists of the SOA, including the following terms and conditions (“T&C”), the general Service terms and conditions (“Web Terms”), the DynaLink Acceptable Use Policy (“AUP”), both set forth at www.dynalink.com/terms-and-conditions, any Schedules, Addendums, Appendices, and Exhibits attached hereto and applicable tariff (collectively, the “Agreement”). Some Services offered by DynaLink under this Agreement are offered pursuant to applicable tariffs, which are filed with applicable regulatory agencies (“Tariffed Services”). In the event of a conflict between this Agreement and a tariff, the tariff shall control. Upon cancellation of any tariff, this Agreement shall control. You acknowledge and agree the Services are offered “as is”, “as available”, “without warranties” and that DynaLink’s obligation to provide the Service(s) is subject to its having obtained all of the requisite licenses and consents related thereto. “Service Order” shall collectively refer to any service order(s), authorization form(s) or order form(s) that describes and sets forth the pricing for the Service(s) purchased by Customer from DynaLink.
2. Term: The term of the Agreement shall commence on the Start of Billing Date and shall continue thereafter until the end of term, unless earlier terminated in accordance with this agreement. Unless notified by either party at least sixty (60) days prior to the end of a term, or a renewal period, of an intend not to renew, the Service Term shall automatically renew in successive 1, 2, or 3 year terms based on the original term. In all circumstances (Even on a Month to Month contract, or on a renewal period), a precise cancellation date is required, sixty (60) day prior to the actual cancellation date. If the customer chooses to postpone the cancellation date, a new cancellation order, will need to be placed and an additional sixty (60) day notice with a precise cancellation date will be required. From time to time, Customer may order additional Service(s) by executing a Service Order. Any additional Service Orders agreed by the parties shall be governed by the terms of this Agreement, including the Terms and Conditions.
3. Billing; Payment; Deposit:
A. Billing: Customer is responsible for the payment of all charges for Services furnished by DynaLink under the Agreement at rates set forth on the applicable Service Order(s) and, for services provided to Customer, and not included in a Service Order at DynaLink’s then-current standard rates. Rates for international Services are subject to change on five (5) day’s notice from DynaLink, and new rates are automatically effective on the 6th day from the date of such notice. Customer acknowledges that rates to International Mobile are higher than the standard International rates.
B. Usage Charges: Customer is solely responsible for all usage of the Services, fraudulent or otherwise. Claims of fraudulent usage shall not constitute a valid basis for dispute of an invoice. The parties agree that Customer, shall bear all risk of loss arising from fraudulent or unauthorized use of the Services, will pay all associated costs for which, they will be billed by DynaLink for those fraudulent calls. DynaLink reserves the right, but has no duty, to take any action it deems appropriate to prevent any fraud or abuse in connection with the Services.
C. Unlimited Usage: Unlimited calling plans are meant to be used for ordinary person to person calling and faxing. They are not to be used for Telemarketing, Auto Dialers, Fax Broadcasting, conference bridges, modem poling or any activity that is meant for excessive use. In addition, if the customer has more than one trunk group connected to their PBX, it is not allowed to route all or a portion of outgoing calls to certain destination types, to the lines with unlimited usage. If DynaLink Communication deems that it is being used for one of the above, the cost per minute will be $0.05 outbound domestic calling.
Unlimited SIP Trunks or POTS have a cap of 2,000 minutes per trunk and 20,000 minutes, per group of 23 lines. If a location has less than 23 lines, then the limit is 20,000 minutes for the entire location. For the avoidance of doubt, the above mentioned is not allowed, even if less than those amounts are used. E-Fax is limited to 500 minutes per phone number.
D. Start of Service: The “Start of Service Date shall be, regardless of whether or not Customer uses the Service. a. Three (3) business days of circuit install. b. The date on which DynaLink notifies Customer that the Service is installed and available for Customer to use. Whichever occurs earlier. Billing for each Service shall commence on the Start of Service Date (“Billing Commencement Date”).
E. Service Delivery: Customer agrees to cooperate with DynaLink to accomplish Service activation by providing commercially reasonable access to the Customer's premises, when DynaLink deems it to be necessary. DynaLink shall not be liable for any damages whatsoever resulting from delays in meeting Service delivery dates requested or specified by Customer, or inability to provide Services. Customer may not cancel this Agreement if there is a delay in installation related to the Services unless such delay is solely due to DynaLink and such delay is longer than ninety (90) days beyond the parties agreed Start of Service Date; provided however, in no event may Customer cancel if DynaLink has agreed to construct or is constructing Communications Facilities to provide Service to Customer.
F. MAC and Dispatch Charges: A $45.00 fee will apply for any MAC (Move, Add or Change) order. Dispatch fees for MAC or repairs that turn out to be a non DynaLink issue, will be charged at a rate of $225.00 for the first hour and $150.00 for each additional hour. The above pricing may vary, depending on the particular situation.
G. Payment Terms: Customer will be invoiced monthly for all amounts due and owing to DYNALINK. All invoices shall be deemed final and binding unless Customer notifies DYNALINK in writing of any alleged discrepancies no later than thirty (30) days from the date of such invoice(s).
All payments are due at midnight of the first day of the following month of the invoice date, (An invoice generated in December is due on January first). The charges and fees under this Agreement are exclusive of any national, state, municipal, or other governmental excise, sales, value-added and occupational taxes and other fees, surcharges and levies, third party installation charges, all of which Customer shall be responsible for and will pay in full. Customer will be deemed to be in default hereunder if payment is not received by the Due Date and, in addition to its other remedies, DYNALINK may charge Customer interest equal up to 1½% per month on any amount(s) past due.
H. Credit Approval: The provision of Service(s) under this Agreement is contingent upon DYNALINK’s initial and continuing credit approval of Customer. At any time during the Agreement Term, DynaLink may require a deposit or other acceptable form of security if it reasonably deems itself insecure with respect to Customer’s ability to pay. In addition to the termination rights under this Agreement, DynaLink may, immediately suspend the Service(s) if Customer fails to comply with these security obligations. Suspension of Service because of Customer’s failure to comply with the security requirements is not considered an interruption or outage for the purposes of this Agreement.
4. Compliance with Laws and Acceptable Use: Customer agrees that it and its end users will comply at all times with all applicable laws and regulations and will not use the Services in a fraudulent manner or in a manner that exposes DynaLink to legal liability. Customer agrees to be bound by the DynaLink AUP, s listed on www.dynalink.com/terms-and-conditions.
5. Delivery Method: DynaLink retains the right to change, increase or decrease from time to time, in its discretion and without liability to Customer, the methods, processes and/or the suppliers by which DynaLink provides Services to Customer, as well as the right to change, add to or delete Service or Service offerings with appropriate notice to Customer.
6. Facility Construction: In the event DynaLink is required to construct and/or acquire communication facilities to provide Service to Customer, Customer acknowledges and agrees that DynaLink will incur significant costs in provisioning Service to Customer. In addition to any other rights and remedies DynaLink may have, Customer agrees that if Customer cancels, terminates or breaches this Agreement after execution but prior to the Termination Date, the Customer will be required to reimburse DynaLink for all costs DynaLink incurred in constructing and/or acquiring such communication facilities.
7. Disclaimers of Warranty: the service(s) are provided “as is” and “as available” and DynaLink makes no warranties or representations, whether express, implied or statutory, regarding the services, software or equipment or any results to be achieved through use of the service(s), software or equipment. This disclaimer includes, but is not limited to, any warranties of merchantability, quality, fitness for a particular purpose, non-infringement and title, and all implied warranties arising from a course of dealing, usage, or trade practice. DynaLink specifically disclaims any responsibility for the accuracy or quality of information obtained through its service(s), the use of which is at customer’s own risk.
8. Default; Termination:
A. Termination Liability: Should Customer choose to terminate any service offering after the notification of the install date and prior to the expiration of the term. Customer is responsible for payment of the monthly recurring charges (“MRCs”) as stated in the SOA times the number of months remaining in the contract
For usage-based Services, Customer shall pay an additional early termination charge that shall be equal to 75% of Customer’s average monthly usage for the three (3) months prior to the termination month (or such lesser period if fewer than three (3) months of Service were utilized), times the number of months remaining in the Term of the Agreement.
B. Termination prior to notification of install date: Customer If Customer cancels, terminates or breaches this Agreement after execution of the Agreement but prior to notification of install date, Customer shall pay DynaLink as follows. (a) An early termination charge of three (3) months of the anticipated monthly recurring charges, (b) All nonrecurring charges. (c) Any charges incurred by DynaLink to provide Service to Customer.
C. Default: Except as otherwise required by law or applicable regulation, if, at any time during a term, Customer: (a) fails to pay any amount required under this Agreement or any other agreement with DynaLink when due and such failure continues for ten (10) days; (b) fails to perform any material obligation under this Agreement which failure is not remedied within ten (10) days after receipt of written notice from DynaLink (unless a shorter notice period is expressly set forth in the Agreement or notice, in which case the shorter notice period shall apply); (c) becomes Insolvent; or (d) cancels or terminates Service, including any part of a service offering at any time before completed of the Service Term or any renewal Term, then DynaLink may elect to pursue one or more of the following courses of action, as applicable: (i) terminate in whole or in part Customer’s Service, whereupon Customer shall be liable and shall pay to DynaLink, at DynaLink sole option, and within ten (10) days of such termination, (i) the termination charges set forth in the applicable Service Order or Web Terms, or (ii) the cumulative total of the balance of all monthly charges remaining on this Agreement through the end of the applicable Service Term(s); plus (z) any charges accrued but unpaid as of the effective date of termination. In addition customer is liable to pay any legal fees associated with the collection of the above amount.
All of the preceding shall be immediately due and payable by Customer. Termination by DynaLink, shall not preclude DynaLink from pursuing any other rights or remedies available to it at law or in equity. Customer acknowledges that the amounts payable pursuant to this Section are equitable compensation to DynaLink and are intended to reasonably compensate DynaLink for the losses which are occasioned by Customer’s failure to honor Customer’s obligations hereunder and not intended as a penalty.
9. Indemnification: Customer shall indemnify, defend and hold DynaLink its affiliates, officers, directors, licensees, licensers, and vendors harmless from any and all claims, losses, damages and expenses, including, without limitation, reasonable attorney’s fees and court costs, or liabilities arising from or related to: (i) Service Misuse or a violation of any other provision of this Agreement; (ii)any claim of infringement of any intellectual property or other proprietary interest resulting from the possession or use of any Service(s), software or equipment; (iii) the Content; (iv) any acts or omissions of Customer, its employees, agents, contractors, invitees, licensees, visitors, and/or customer/end-users; and/or (v) any injury or damage to the person, property, or business of DynaLink, its employees, agents, contractors, invitees, licensees, visitors, and/or customer(s)/end-user(s).
10. Severability / Waiver.: In the event any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. DynaLink’s failure to insist upon or to enforce strict performance of any provision of this Agreement shall not be construed as a waiver of this or any other provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
11. Limitation on liability: In no event shall DYNALINK, its affiliates, service providers, suppliers or agents be liable to customer or any third party for any indirect, incidental, special, punitive or consequential damages or for any lost or imputed profits or revenues, lost data or cost of procurement of substitute services resulting from delays, non-deliveries, mis-deliveries or service interruption, however caused, arising from or related to the service(s) or this agreement, regardless of the legal theory under which such liability is asserted, whether breach of warranty, indemnification, negligence, strict liability or otherwise, and whether liability is asserted in contract, tort or otherwise, and regardless of whether DYNALINK has been advised of the possibility of any such liability, loss or damage. The total aggregate liability of DynaLink and its suppliers to customer and/or any third party in connection with this agreement shall be limited to direct damages proven by customer; such direct damages not to exceed an amount equal to the total net payments received by DynaLink for the affected service which gives rise to such liability in the three (3) month period immediately preceding the date in which the claim was filed. The parties acknowledge that the limitations referenced in this Section are material terms to this Agreement. Customer acknowledges that DynaLink has set its prices, and other charges in reliance on the foregoing limitations of liability, which form an essential basis of the bargain between the parties.
12. Notices: Any notice required to be given hereunder shall be in writing and shall be deemed to have been delivered when (i) email was sent (ii) sent by facsimile, and electronically confirmed, (iii) Delivered via United States mail (registered or certified mail), return receipt requested, with adequate postage affixed, or (iv) delivered via a national overnight courier service and addressed to the persons set forth herein. Notice for monetary default may be sent by e-mail, facsimile, or other written format.
13. Miscellaneous: This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby and supersedes any other prior or simultaneous agreement related to such matters. Any modification to the Agreement must be signed by a senior management of DynaLink. Customer may not assign this Agreement or any portion hereof without DynaLink’s prior written consent, which consent shall not be unreasonably withheld. Any such assignment without DynaLink’s prior written consent shall be void. The parties agree that any dispute arising under this Agreement shall be governed by and construed in accordance with the laws of the State of New York, except for its principals for resolving conflicts of law. The parties agree that any disputes arising under this Agreement shall be resolved in arbitration, within the city of New York. All provisions in this Agreement, which by their nature are intended to survive expiration or termination shall survive any expiration or termination of this Agreement. In the event of a conflict between or among the terms in this Agreement, the Service Order(s) and any other document made a part hereof, the documents shall control in the following order: the Service Order with the latest date, the AUP, Web Terms and this Agreement. The Web Terms, AUP and tariffs may be modified from time to time at DynaLink’s discretion or as required by applicable law. Customer agrees to review such changed items from time to time and be bound by such changes, as they pertain to your particular services. Unless subject to tariffs or the terms of this agreement, DynaLink may not change the rates, fees or charges set forth herein, in the midst of a contractual term without customer consent. If customer determines changes to the AUP and/or tariffs will materially and detrimentally affect customer’s service or rights and are not mandated by law or regulation, customer may provide DynaLink written notice of objection. DynaLink will review such notification and if the parties cannot come to an agreement within thirty (30) days, customer may terminate such service(s) without incurring charges for early termination, provided that customer’s account is current. If customer uses the services and does not contest within five (5) business days, it is deemed that the customer has accepted the terms and conditions mentioned hereon. The above does not apply, if the modification was required by an applicable law.
14. Equipment: installed by/for DynaLink for use of the service, including but not limited to equipment, that is billed monthly to the customer is the property of DynaLink Communications and must be returned upon termination of such services. If not returned within five (5) business days, customer will be liable to pay DynaLink for the equipment.
15. Equipment Warranted: Any Customer Premises Equipment (“CPE”) that is provided to the customer, has a one (1) year replacement or repair (at DynaLink’s discretion) warranty, for manufacturer’s defects. At DynaLink’s discretion, any equipment supplied as replacement equipment for a CPE with manufacturer’s defects may be new, recertified, or refurbished as long as it is equivalent in functionality. Any CPE supplied as a replacement CPE will carry the remainder of the one (1) year warranty described above. DynaLink shall have no obligation or liability in connection with (a) any equipment not purchased through DynaLink even though, it was configured by DynaLink, its Vendors or Contractors. (b) for any abuse (c) reconfiguration, repair or misuse of any equipment by any party. After the initial year, the customer shall be liable to pay for replacement equipment including standard wear and tear.
16. Mobile: End User shall comply with and abide by the terms listed on www.dynalink.com/terms-and-conditions, which may be revised from time to time by DynaLink Communications.
Additional software, hardware and/or subscription may be required for certain features. Additional charges and device restrictions may apply for access to corporate email/intranet sites and business DynaLink does not guarantee coverage. Charges will be based on the location of the site receiving and transmitting the call, not the location of the subscriber.
Text, picture, video and instant messages must be sent to and/or received from within the DynaLink nationwide coverage area. Mobile to Mobile calling applies to direct calls to and from U.S. mobile numbers only. For coverage information and maps, please visit www.wireless.att.com/coverageviewer.
Your plan may include the capability to make and receive calls or transmit data while roaming internationally. If you take your phone abroad, (as described in www.dynalink.com/terms-and-conditions) The charges for voice and data are as listed in http://www.dynalink.com/global-overage.html will apply. Charges apply for incoming and outgoing calls, calls to VM, even if no message was left. DynaLink in its sole discretion, may block your International roaming and calling capability, until eligibility criteria are met. All countries may not be available for roaming. Availability, quality of coverage and services while roaming are not guaranteed. Substantial charges may be incurred if Device is taken out of the U.S. even if no services are intentionally used.
Third-party content or service providers may impose additional charges, of which DynaLink has no control over its content or pricing.
DynaLink is not responsible for loss or disclosure of any sensitive information you transmit. DynaLink’s wireless services are not equivalent to landline Internet.
Mobile wireless deployments.
WE DO NOT GUARANTEE YOU UNINTERRUPTED SERVICE OR COVERAGE. WE CANNOT ASSURE YOU THAT IF YOU PLACE A 911 CALL YOU WILL BE FOUND. AIRTIME AND OTHER SERVICE CHARGES APPLY TO ALL CALLS, INCLUDING INVOLUNTARILY TERMINATED CALLS. DYNALINK COMMUNICATIONS MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, ACCURACY, SECURITY, OR PERFORMANCE REGARDING ANY SERVICES, SOFTWARE OR GOODS.
Certain type of data sessions are prohibited, for example: (i) server devices or host computer applications; (ii) “auto-responders, or similar routines which generate excessive amounts of net traffic, or which disrupt other users; (iii) “spam” or unsolicited email (iv) any activity that adversely affects the ability other people or systems. DynaLink reserves the right to deny, disconnect, modify and/or terminate Service, without notice, to anyone it believes is using the Service in any manner prohibited.
DynaLink does not guarantee delivery of messages. Text, Instant, Picture, and Video messages, including downloaded content, not delivered within 7 days will be deleted, which time period, may be changed.
When a Single message sent to multiple recipients, it will be charged per recipient received and sent.
Installation of fixed wireless deployment in an offnet area is prohibited.
Unlimited voice Services are provided primarily for live dialog between two individuals, other uses are prohibited. Use of unlimited voice Services for conference calling or call forwarding in excess of 750 minutes per month is prohibited.
If service is discontinued on financed equipment or if the equipment is returned, the full amount of the remaining contractual period plus 20% will be due immediately. If there is a credit card on file, the card will be charged the full amount due.
Our fifteen (15) day return policy applies only if the equipment is in brand new condition