1. EFFECTIVE DATE and TERM:
This Agreement shall become effective on the date that the Customer’s signed Service Agreement is accepted by BNC. Unless otherwise agreed to in writing by BNC, all Service shall be provided for a minimum Term as indicated on this Service Order and Agreement. Such Term shall commence on the date upon which the Service is made available for use by Customer, and shall continue until the expiration of the Term or until this Agreement is otherwise terminated as set forth herein. Following the initial Term, this Agreement shall continue on a 1-year term basis until terminated upon (90) ninety-days’ prior written notice by either party hereto, or until the parties enter into a new Service Agreement.

2. BILLING and PAYMENT TERMS:
The fees for Service are as set forth on this Service Agreement. All metered calls are rated individually and rounded to the nearest penny. Customer shall also be responsible for payment of any applicable local, state, or federal taxes, fees, and government-imposed charges or surcharges, which may include Universal Service Fund assessments, PICC fees, and payphone compensation charges. Other than the Initial Invoice, Services are provided and invoices are issued on a monthly basis for actual usage of Service. An “Initial Invoice” is generated when Customer’s Service starts and shall bill in advance all monthly recurring charges. Any set-up, installation or equipment charges shall be paid at contract signing unless a (12) twelve, (24) twenty-four, or (36) thirty-six month payment option is chosen on the Equipment Purchase Order. Then such set-up, installation or equipment shall be billed for (12) twelve, (24) twenty-four, or (36) thirty-six months, as per the Equipment Purchase Order at an annual finance rate of 20%. The finance rate is calculated, including Amortization, for the total finance period chosen by Customer and divided by the appropriate finance period. If provided equipment is lost, stolen, damaged or not returned, the client shall be invoiced the un-depreciated value of the item, plus installation and delivery. In the event of any dispute regarding a billing invoice, Customer shall notify BNC in writing within ten (10) days of receipt of the electronic or paper invoice. Thereafter, said invoice shall be deemed to be correct and binding.

Payment is due immediately upon receiving the electronic or paper invoice. Any amount not paid within (30) thirty-days after the invoice date shall incur a Late Payment charge of $25. In addition, invoices not paid by the thirtieth (30th) day from receipt of invoice will not be eligible for quoted volume or term discounts and are subject to Service Interruption.

Customer is responsible for paying the entire amount billed on the electronic or paper invoice, including reasonably disputed charges, whether or not documented in writing to BNC. Any dispute resolved in Customer’s favor shall be credited on Customer’s next invoice. Customer shall not seek legal or equitable remedies, including without limitation, injunctive relief, which would require BNC to continue providing Service to Customer while any delinquent amount payable to BNC remains unpaid. The client is responsible for all charges resulting from toll fraud, abuse or other misuse of service provided.

Customer understands that they may be charged a fee of $50 per location for reactivation of any service as a result of Service Interruption due to non-payment.

3. SERVICE and RATES:
Initial rates for the Service plan are set forth on this Service Agreement or in the separate pricing form furnished to customer. Except where otherwise required by applicable law or the provisions of this Agreement applicable to Term plans, BNC may revise the rates for Service from time-to-time without prior notice, to reflect changes in regulatory-imposed fees, the cost to provide service, service charges and tariffs, or otherwise. BNC reserves the right to move Customer to a different Service or rate plan if usage or other criteria are not met for the plan to which Customer has subscribed or in which Customer currently is enrolled.

4. LIMITATION of LIABILITY:
Customer acknowledges that BNC is not liable to Customer or to any third party for calls not completed or for any errors in transmission. BNC is not liable to Customer for any act of or representation made by independent Distributors or Agents who sell BNC Service, unless expressly approved by an officer of BNC in writing or unless contained in a document provided by BNC to Customer.

Customer recognizes the complex nature of telecommunications technology. BNC shall not be responsible for any customer premise hardware except as specifically set forth herein or in any attachment or addendum, the Service and related software and/or equipment provided by BNC, if any, are provided on an “as is” and “as available” basis. Except for BNC’s undertaking to maintain the quality of its network consistent with prevailing industry standards and sound business practice, BNC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. Certain states do not allow any limitation of implied warranties and, therefore, certain provisions may not apply to Customers located in those States. Under no circumstances shall BNC have any liability for: (a) any act or omission of any connecting carrier or any underlying carrier or local exchange company whose services are resold by BNC, or any other third-party provider of connections, equipment, facilities or service to Customer or BNC; (b) any act or omission of Customer, its agents, servants, employees, invitees or guests; or (c) any failure of equipment, facilities or connections provided by the Customer. Neither shall BNC have any liability for mistakes, omissions, interruptions, errors, delays, defects in transmission or failure to transmit, when caused by acts of God, fire or other natural disaster, war, riots, labor disturbances, cable cuts, Government authorities, or an other causes beyond BNC’s control.

IN NO EVENT SHALL BNC, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST REVENUE, PROFIT, CUSTOMERS, GOODWLL OR DATA, ARISING FROM OR RELATED TO THE SERVICE, INCLUDING ERRORS, MISTAKES, OMISSIONS, INTERRUPTIONS OR DELAYS BY BNC, ITS PROVIDERS, AGENTS, SERVANTS OR EMPLOYEES IN THE COURSE OF ESTABLISHING, FURNISHING, REARRANGING, MOVING, BILLING, TERMINATING OR CHANGING REGULATED OR NON-REGULATED SERVICES OR FACILITIES AS CONTEMPLATED HEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER A CLAIM IS ASSERTED FOR BREACH OF WARRANTY OR ANY OBLIGATON ARISING THEREFROM, AND WHETHER A CLAIM IS ASSERTED IN CONTRACT, TORT OR STRICT PRODUCT LIABILITY, IRRESPECTIVE OF WHETHER BNC HAS ADVISED OR BEEN ADVISED OF THE POSSBILITY OF ANY SUCH LOSS OR DAMAGE. BNC’S LIABILITY TO CUSTOMER HEREUNDER SHALL NOT EXCEED THE LESSER OF CUSTOMER’S ACTUAL DAMAGES OR THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS (THE “AFFECTED SERVICE”), CALCULATED FROM COMMENCEMENT OF THE AFFECTED SERVICE TO THE DATE A CLAIM IS MADE. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.

5.  TERMINATION:
In the event of Customer’s early termination of this Agreement prior to the expiration of any fixed Term, Customer shall pay BNC all charges for service provided through the effective date of such termination, plus an early termination charge in an amount equal to the greater of (a) the balance of the recurring monthly service charges for such terminated Service, which would otherwise have been payable for the unexpired balance of the term, or (b) an amount equal to the average of the prior three months usage charges, but not less than $500.00, times the remaining months of the term. It is agreed that BNC’s damages if Service were terminated prior to the expiration of the Term would be difficult or impossible to ascertain. Accordingly, the terms of this Paragraph 6 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 BNC.

6. CANCELLATION:
BNC may discontinue Service or cancel an application for service, without incurring any liability, for any of the following reasons: (a) non-payment when due of any sum payable to BNC for service; (b) violation of any law, rule or regulation of any governing authority having jurisdiction over the service; (c) by order of a court or other governmental or quasi-governmental authority having such jurisdiction; (d) in the event service charges exceed the amount of any deposit which BNC may have required or any established credit limit; (e) if Customer provides false or misleading credit information; (f) if, in the sole discretion of BNC, Customer’s financial condition has deteriorated or if Customer is involved in any bankruptcy or similar proceeding; (g) in the event of any violation giving rise to a right of termination as set forth in BNC’s applicable tariffs; (h) fraudulent use of the Service; or (i) any material default under this Agreement including, but not limited to, violation of BNC’s Acceptable Use Policy, as applicable.

7. EMERGENCY SERVICES – 911 DIALING
The Service supports traditional 911 or E911 access to emergency services in locations where BNCVoice provides Network Services. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing” which is a limited emergency calling service available only on BNC-certified Devices or Equipment. The 911 Dialing feature may not work with Soft Phones, Remote DID’s, or Customer provided CPE. Our 911 Dialing feature is not automatic; BNCVoice must separately take affirmative steps, as described on www.bncvoice.com, to register the address where you will use the Services in order to activate the 911 Dialing features. BNC will not institute Service if this has not been put into effect. If Customer moves BNC-certified Devices or equipment without BNCVoice being notified, Customer understands that the “911 Dialing” service will no longer be applicable. Customer agrees that additional information is available on our website www.bncvoice.com and that customer has read the information set forth on the site for 911 and E911 service.

8. MISCELLANEOUS:
This Agreement shall be governed by and construed in accordance with the substantive and procedural laws and practices of the State of New York, and any action commenced hereunder shall be brought exclusively in a court of competent jurisdiction in the State of New York.
If a dispute arises and BNC refers this Agreement to an attorney for collection, Customer shall pay all costs of collection, including interest, court costs, fees and reasonable attorney’s fees.
No provision of this Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing signed by the party against whom the enforcement of such waiver, amendment or modification is sought.

Each party represents that it has the full right, power and authority to enter into this Agreement and to perform all of the obligations on its part contemplated herein. Customer may not assign this Agreement or resell, sublicense or transfer any interest in the Service without BNC’s prior written consent. Any notice required or permitted to be given under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, or by overnight courier, to the Customer at the address supplied on this Service Order and Agreement, and to BNCVoice at 280 N. Bedford Road, Suite 207, Mount Kisco, NY 10549, Attention: Chief Executive Officer. Either party may, at any time, notify the other of a change of address for notices, by giving written notice in accordance with this Paragraph. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any order submitted by Customer or the terms of any other agreement between Customer and BNC. 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 shall remain in full force and effect. BNC may collect from Customer its costs (including reasonable attorneys’ fees) incurred in enforcing this Agreement.

Notwithstanding the cancellation or natural expiration of the Term of this Agreement, if Customer has accumulated unpaid charges for any Service, BNC may refuse any request for release or other transfer of Toll-Free numbers to a third party, and may reject any request for change in Toll-Free service to another carrier, including a change request from a Responsible Organization, without liability to BNC, until such charges are paid in full to the date of termination of service. BNC reserves the right to re-assign any terminated Toll-Free number(s).
Customer represents and warrants that this is a commercial and business transaction, and not a consumer transaction. In the event of dissolution of BNC for any reason, a minimum of 30-days notice will be given to customer in order to provide the opportunity to switch carriers without an interruption in service.

9. VERIFICATION and CREDIT APPROVAL:
BNC credit is approved in the following ways: (1) Customer shall provide a valid credit card for payment applied at all invoice dates, (2) Customer shall provide a deposit for one month’s invoice and a valid credit card on file as security with payment by check at net-15 terms, (3) Customer will provide information as requested for a full credit check to allow net-15 terms paid by check without credit card security. BNC reserves the right to withhold initiation or implementation of Service under this Agreement pending credit review. BNC requires one of the above approvals for a Service order submitted by Customer or as a condition to continuation of Service. Such deposit or credit card information shall be held by BNC as security for payment of charges, and BNC may draw upon such deposit or charge the credit card without any notice to Customer immediately when such account becomes past due on the 16th day after invoice date. At such time as the provision of Service to Customer is terminated, the amount of any unapplied deposit shall be credited to the Customer’s account and any credit balance, which may remain, shall be refunded without interest thereon. In the event Customer’s order is provisioned prior to completion of verification and credit check, said provisioning shall be deemed conditional and may be canceled immediately in the event of an unsatisfactory credit report or failure on the part of Customer to provide a required cash deposit or valid credit card number.

10. NO ASSIGNMENT; ENTIRE AGREEMENT:
Customer may not assign this Agreement without the prior written consent of BNC, which may be withheld in its sole discretion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective affiliates, successors and permitted assigns. This Agreement, together with any attachments, constitutes the entire Agreement and understanding between Customer and BNC as to the subject hereof.