Terms

Terms and Conditions

1.0 Services
1.1 CLIENT agrees to purchase from NETRIO, and NETRIO agrees to provide services (“Services”) to CLIENT. NETRIO shall develop and provide to CLIENT a Statement of Work (the SOW), substantially in the form of the attached SOW describing the desired services for CLIENT review and approval. NETRIO shall have no obligation to provide Services to CLIENT unless and until a SOW has been duly executed by CLIENT.

1.2 The parties may, by mutual agreement, make changes (“Changes”) to the scope, content, deliverables, schedule or other substantive aspects of the Services agreed to in any SOW. The party requesting a Change shall prepare a written “Change Order,” specifying in adequate detail the requested Change(s), and shall submit it to the other party for review and, if accepted, approval thereof. In no event shall any Change be effective or acted upon in any way or implemented until a Change Order defining such change has been approved in writing by the duly authorized representatives of both parties.

2.0 CLIENT Undertakings
2.1 NETRIO provision of the Services is dependent upon CLIENT cooperating with NETRIO and performing the tasks as reasonably requested by NETRIO. CLIENT will cooperate with and assist NETRIO in the performance of the Services by timely providing such information and access to personnel and other resources as may be necessary in connection with such performance. The parties agree that, to the extent that CLIENT declines, fails or delays in performing the obligations set forth in this Section 2.1 for any reason, NETRIO obligations, performance times and/or charges for the Services shall be appropriately extended, adjusted or excused, as determined by NETRIO in its discretion.

2.2 CLIENT shall be responsible for obtaining and maintaining, at its sole cost and expense, CLIENT network, including all hardware, software and related services. In addition, CLIENT shall obtain all consents, licenses or other rights from third parties necessary for NETRIO to perform the Services without incurring any liability to such third parties and shall find an alternative solution in the event a third party refuses such consent.

2.3 CLIENT shall provide to NETRIO any information, data and/or documentation (collectively, “Data”) that NETRIO, reasonably requests from CLIENT necessary for NETRIO to properly perform its obligations hereunder. Such information shall be provided by CLIENT in the form reasonably specified by NETRIO by the dates reasonably specified by NETRIO and shall be kept confidential by NETRIO in accordance with Section 4 NETRIO, agrees to promptly assess such information, data and/or documentation received from CLIENT with respect to accuracy and usability and notify CLIENT of any resultant impact on NETRIO performance of the Services.

3.0 Price and Payment Terms
3.1 Unless otherwise set forth in an applicable SOW, invoices for Services performed shall be submitted to CLIENT by NETRIO on a monthly basis in advance, on the first day of each month during the Term, and all sums payable hereunder shall be due thirty (30) days from the date of NETRIO invoice. In the event amounts are not paid within thirty (30) days of their due date, NETRIO reserves the right to: (i) suspend the Services until such amounts are paid, and (ii) charge interest on such amounts from their due dates at the rate of one and one-half percent (1½%) per month, eighteen percent (18%) per annum, or the maximum percentage allowable by law (whichever is less).
3.2 The labor rates and fees for Services do not include any federal, state or local sales, use or excise taxes or the like assessed against or payable by NETRIO in connection with this Agreement and CLIENT shall pay to NETRIO the amount of any tax which NETRIO may be required to pay on account of its performance under this Agreement except for any franchise tax or tax based upon NETRIO net income.
3.3 The term for each Service as described in the SOW will be as indicated on the SOW (“Service Term”). If no Service Term is stated on the SOW, the Service Term is deemed to be twelve (12) months. At the end of the Service Term for any Service, such Service shall continue on a month-to-month basis (“Extension Period”) unless either Party gives written notice to the other Party that the Service(s) shall be terminated, such notice to be delivered at least ninety (90) calendar days before the end of the Service Term or any Extension Period. If Service continues on a month-to-month basis after the Service Term, NETRIO may adjust the rates for Service to its then-current month-to-month rate, and CLIENT may terminate such Service upon thirty (30) days written notice. CLIENT’s charges, as set forth in the SOW, for Services provided by NETRIO during the Service Term shall continue to apply to the Service throughout any Extension Period, unless modified pursuant to the terms of this Agreement.
3.4 Payment Default. A “Payment Default” shall occur if CLIENT fails to make full and timely payment for all Services as required under this Agreement (except for Billing Disputes as described in Section 3.5) and such failure remains uncorrected for five (5) calendar days from the Due Date. In the event of a Payment Default, NETRIO may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to CLIENT upon forty-eight (48) hours prior written notice; (ii) cease accepting or processing SOW for Services; and/or (iii) terminate this Agreement. If this Agreement is terminated because of a Payment Default, such termination shall not affect or reduce CLIENT’s minimum monthly commitments required under this Agreement, if applicable, and all Early Termination charges shall apply.
3.5 Billing Disputes. (a) Upon disputing any charges, CLIENT shall: (i) pay all undisputed charges by the Due Date; (ii) present by the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and, (iii) negotiate in good faith to resolve any bona fide dispute within sixty (60) calendar days. (b) Disputed charges resolved in favor of NETRIO, along with any owed Late Fees per Section 3.1 above, will be due and payable on the next Billing Cycle invoice. Disputed charges resolved in favor of CLIENT will be credited to CLIENT on the next Billing Cycle invoice and no late fees shall apply.

4.0 Confidential Information
4.1 Except as expressly allowed herein, each party will hold in confidence and not use or disclose any Confidential Information of the other party and shall similarly bind its employees in writing. Each party acknowledges and agrees that due to the unique nature of the Confidential Information of the other party, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the receiving party or third parties to unfairly compete with the delivering party resulting in irreparable harm to the delivering party, and therefore, that upon any such breach or any threat thereof, the delivering party shall be entitled to appropriate equitable relief (without the posting of any bond) in addition to whatever remedies it might have at law. “Confidential Information” means any information, technical data, or know-how relating to a party’s business, research, products, software, services, development, inventions, processes, engineering, marketing, techniques, pricing, internal procedures, business, and marketing plans and business opportunities. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how that: (i) the receiving party can prove through written documentation was in its possession at the time of disclosure; (ii) becomes part of the public knowledge not as a result of any action or inaction of the receiving party; (iii) is disclosed to the receiving party by a third party not in violation of any obligation of confidentiality; or (iv) is independently developed by the receiving party without reference to any Confidential Information, which can be proven through written documentation.

5.0 Proprietary Rights
5.1 As between NETRIO and CLIENT, NETRIO owns and will continue to own all worldwide right, title, and interest in and to all NETRIO software, technology, know-how, data, databases, information, processes, procedures, ideas and works of authorship (“Technology”) owned, created or licensed by NETRIO before or after the Effective Date, and all accompanying intellectual property rights throughout the world.

5.2 Technology used to provide the Services is licensed, not sold, and CLIENT is granted only a limited, non-exclusive, non-transferable, royalty-free license to use the Technology solely to the extent necessary to make proper and authorized use of the Services. In the event any Technology is delivered to CLIENT and/or installed on any CLIENT equipment, CLIENT shall not access, modify, revise, copy, transfer or otherwise make use of such Technology except to the extent permitted by NETRIO in its written instructions to CLIENT. NETRIO reserves all rights in the Technology not expressly granted to CLIENT hereunder.

6.0 WARRANTIES
6.1 NETRIO, warrants for a period of three (3) months from the date the Services were performed that such Services were performed in a good and workmanlike manner. In the event of a breach of this warranty of which CLIENT notifies NETRIO in writing during the warranty period, NETRIO sole obligation and CLIENT’s exclusive remedy shall be for NETRIO to correct those circumstances in which the Services performed do not conform to such warranty.
6.2 EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION 6 AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, NETRIO HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE TECHNOLOGY, TECHNICAL ELEMENTS AND/OR SERVICES PROVIDED BY NETRIO UNDER THIS AGREEMENT. FURTHER, NETRIO SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NETRIO DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT ANY TECHNOLOGY, TECHNICAL ELEMENTS AND/OR SERVICES PROVIDED BY NETRIO UNDER THIS AGREEMENT WILL BE ERROR-FREE, THAT THEIR USE WILL BE UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE OR RELIABLE. NETRIO ACCEPTS NO LIABILITY FOR FAILED NOTIFICATION DELIVERY, ALARMS OR OTHER SIMILAR FAILURES, WHETHER OR NOT CAUSED BY NETRIO AND ITS SYSTEMS.

7.0 LIMITATION OF DAMAGES
7.1 TO THE EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT OR OTHER THEORY (A) FOR INTERRUPTION OF USE, FOR LOSS OR INACCURACY OR CORRUPTION OF SOFTWARE OR DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS AND PENALTIES OR INTEREST ASSESSED OR LEVIED BY GOVERNMENT AGENCIES, OR (C) FOR ANY AMOUNTS IN EXCESS OF FEES PAID TO NETRIO HEREUNDER DURING THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM AROSE, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL NETRIO, BE LIABLE TO CLIENT FOR DAMAGES ARISING AS A RESULT OF CLIENT’S NETWORK FAILING OR OTHERWISE BEING UNAVAILABLE, INCLUDING WITHOUT LIMITATION FOR LOST PROFITS OR PENALTIES OR OTHER DAMAGES INCURRED BY CLIENT, WHETHER OR NOT AS A RESULT OF NETRIO ACTS OR OMISSIONS. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (X) ANY CLAIMS FOR PERSONAL INJURY OR DEATH, (Y) DAMAGES RESULTING FROM A PARTY’S VIOLATION OF THE OTHER PARTY’S PROPRIETARY RIGHTS, CONFIDENTIALITY AGREEMENT OR FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 4 ABOVE, OR (Z) AMOUNTS PAYABLE UNDER SECTION 3.

8.0 Term and Termination.
8.1 Term. This Agreement will commence on the Effective Date and will continue for a period of three (3) years unless earlier terminated in accordance with Section 8.2. Thereafter, this Agreement will automatically renew for additional one (1) year periods. The initial one-year period and all one-year renewal periods shall collectively be designated as the “Term”.

8.2 Termination. Either party may terminate this Agreement upon written notice in the event the other party has committed a material breach of this Agreement or any SOW that remains uncured for ten (10) days after written notice of such breach (or ten (10) days in the event of CLIENT’s nonpayment of amounts due NETRIO (hereunder). Additionally, CLIENT will the right to terminate Agreement upon 180 day notice.

8.3 Events Upon Termination. Upon the expiration or termination of this Agreement for any reason: (i) all SOWs shall terminate; (ii) all licenses granted herein shall automatically and immediately terminate and NETRIO shall have no further obligation to provide or perform any Services for CLIENT; (iii) NETRIO shall invoice CLIENT for all accrued fees, reimbursable expenses and all other amounts due hereunder, and CLIENT shall pay the invoiced amount immediately upon receipt of such invoice; and (iv) each party will return or destroy (at the request of the disclosing party) all documented Confidential Information of the other party in its possession or control, and certify its compliance with this provision to the disclosing party in writing. All provisions which by their terms or their nature should survive termination shall do so; by way of example but not limitation all payment obligations and duties of confidentiality shall survive.

8.4 Early Termination / Order Cancellation. If CLIENT desires to terminate any Service after NETRIO’s acceptance of the SOW and prior to the expiration of the Service Term, (a “Terminated Service”), CLIENT may do so by providing notification thereof to NETRIO at least 180 days in advance of such termination. Unless otherwise agreed by the Parties in the SOW for such Terminated Services, in the event of any such termination of such Service, CLIENT shall pay to NETRIO, prior to the effective date of such termination, an amount equal to the Termination Charge, which shall be equal to the sum of (i) the Monthly Recurring Charge applicable to the Terminated Service multiplied by the number of Billing Cycles then remaining until the end of the applicable Service Term established pursuant to the SOW for such Terminated Service and (ii) any termination costs paid by NETRIO to any third party associated with terminating any portion of the applicable Terminated Service being provided using a third party’s facilities or services and any reasonable internal costs that are not otherwise recovered by NETRIO through the payment of the amount set forth in (i) above. If CLIENT terminates any NETRIO Service during an Extension Period (month-to-month) as provided in Section 3 above, CLIENT is responsible for any charges not yet paid by CLIENT. It is the express intent and understanding of the Parties that, this Agreement and all Service Orders hereunder being one integrated agreement and not separate, severable contracts, CLIENT’s right to early termination of any Service is not a right to “reject”, on an individual basis, any Service or any SOW pursuant to federal bankruptcy laws. Order Cancellation, In the event CLIENT desires to terminate services prior to delivery of the Service, then a cancellation charge will be applied equal to one month’s monthly recurring charge plus any other incurred cost by NETRIO for the canceled service.

9.0 Dispute Resolution
9.1 The parties agree that any and all disputes or controversies of any nature whatsoever, arising from or regarding the interpretation, performance, enforcement or breach of this Agreement shall be resolved by confidential, final and binding arbitration (rather than trial by jury or court or resolution in some other forum) to the fullest extent permitted by law, and further agree that either party may initiate an arbitration. Any arbitration proceeding pursuant to this Agreement shall be conducted by the American Arbitration Association (“AAA”) in Dallas, Texas under the then existing AAA arbitration rules. A single arbitrator who is knowledgeable in the field of information technology shall be agreed upon by the parties; provided, however, that if the parties cannot agree upon an arbitrator within ten days of the initiation of the arbitration, a single arbitrator who is knowledgeable in that field shall be appointed by the AAA. The Federal Rules of Evidence and Federal Rules of Civil Procedure shall apply to any arbitration proceeding. The costs and expenses of arbitration, including, without limitation, reasonable attorneys’ fees, shall be borne ultimately as the arbitrator directs. The parties hereby consent to the jurisdiction of any arbitration held in said locale and in connection herewith, and hereby agree to comply with the decision and any award therein made. The arbitration award may be enforced by any court of competent jurisdiction in the same manner as a judgment by a court of law or equity. The foregoing shall in no way limit or effect either parties rights to seek equitable relief for breach of its intellectual property or confidential rights.

10.0 Other Defaults and Remedies.
10.1 An “Other Default” shall occur if either party fails to perform or observe any material term or obligation, excluding payment terms, contained in this Agreement, and any such failure remains uncorrected for fifteen (15) calendar days after written notice from the non-defaulting party. In the event of an Other Default by CLIENT, NETRIO may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to CLIENT; (ii) cease accepting or processing SOW’s for Services; and/or (iii) terminate this Agreement. If this Agreement is terminated because of an “Other Default by CLIENT”, such termination shall not affect or reduce CLIENT’s minimum commitments required under this Agreement, if applicable, and all Early Termination Charges shall apply. In the event of an Other Default by NETRIO, CLIENT’s remedies are limited to its proven direct damages, unless this Agreement provides for exclusive remedies in the applicable Service Order, in which case CLIENT’s remedies are as described therein. If CLIENT uses the Services for any unlawful purpose or in any unlawful manner, NETRIO shall have the right immediately to suspend and/or terminate any or all Services hereunder without notice to CLIENT. If CLIENT violates any provisions or restrictions applicable to certain products, and if such activity is affecting NETRIO’s network, or other parties on NETRIO’s network, NETRIO shall have the right immediately to suspend and/or terminate any or all Services hereunder without notice to CLIENT

11.0 Indemnity
11.1 (a) CLIENT. CLIENT’s authorized users and NETRIO will defend, indemnify and hold harmless the other from and against any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, relating to damage to tangible property or bodily injury, or wrongful death, and including without limitation, all reasonable costs and expenses (including reasonable litigation costs and attorneys’ fees) arising out of, resulting from or based upon any complaint, claim, action, proceeding or suit of any third party (“Claim”), to the extent such Claim arises out of the negligence or willful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with this Agreement or the provision of Services hereunder. (b) CLIENT will defend, indemnify and hold harmless NETRIO and its officers, directors, employees, contractors and agents from and against any claim based upon an alleged defect in or failure of Service or failure to obtain approval, consent, or authorization relating to the content transmitted over NETRIO’s network, including but not limited to, claims relating to any violation of copyright law, export control laws, or that such transmissions are libelous, slanderous, an invasion of privacy or illegal.

12.0 Force Majeure
12.1 Either Party may adjust or suspend its performance (other than the obligation to make payment) to the extent performance is beyond its reasonable control for reasons including, without limitation, Acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut (to the extent not caused by NETRIO’s negligence), governmental action, national emergencies, war, riot, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts. If the force majeure event continues for a period of thirty (30) calendar days, then either Party may, without incurring liability, terminate the affected Services or circuits.

13.0 Proprietary Information
13.1 Except as required by law or stock exchange rule, the terms and conditions of this Agreement and all proprietary information exchanged by the Parties and all documents referenced herein (including invoices) are confidential and shall not be disclosed without prior written consent of the other Party.

14.0 Assignment:
14.1 Neither Party shall assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld; provided, however, either Party may freely assign this Agreement, its rights or its obligations, upon notice to the other Party, to an affiliate (defined as an entity that controls, is controlled by or is under common control) or, in the event of a sale of all, or substantially all of its assets, to the purchaser of those assets, or in the event of a merger, acquisition or recapitalization of the assigning party to the surviving entity (the sale of assets, merger, acquisition or recapitalization to be referred to as a “Change of Control”). In the event of a Change of Control of CLIENT or assignment to an affiliate, the acquiring or surviving entity or assignee (as applicable) must be at least as creditworthy as CLIENT and no such Change of Control or assignment will release CLIENT from CLIENT’s obligations herein, including, but not limited to payment, except to the extent that the acquiring or surviving entity or assignee meets its obligations under this Agreement.

15.0 Notices
15.1 All notices to be sent to a Party pursuant to this Agreement shall be in writing and deemed to be effective upon (a) personal delivery, (b) three days after mailing certified mail return receipt requested, or (c) on the day when the notice has been successfully transmitted via email is successfully received with a confirmed acceptance by Email by the other Party.

16.0 Miscellaneous
16.1 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

16.2 Entire Agreement. This Agreement, including all schedules, exhibits and attachments attached hereto, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.

16.3 Non-solicitation. For a period of two (2) years after the Effective Date, (i) NETRIO and CLIENT will not recruit or solicit either parties employees that has provided any Services to CLIENT and NETRIO hereunder, without either parties prior written consent, and (ii) neither party will engage in business that is directly competitive with the other party.

Schedule of NETRIO Products and Services
SCHEDULE A
Voice Services (includes SIP Trunking and Cloud Based PBX)

1.0 Monthly Minimum Usage (if applicable on service order). For any billing cycle during the Service Term, if CLIENT’s charges for all metered, usage-based Services during a billing cycle total less than the “Monthly Minimum Usage Commit” noted on the Service Order, then CLIENT shall pay the shortfall for such billing cycle.

2.0 Billing Increments. Unless otherwise noted, NETRIO will calculate for billing purposes the length of each U.S. domestic metered call based upon a minimum billing period of thirty (30) seconds with rounding to the next higher six (6) seconds. Decimal Rounding will be to 4 places.

3.0 Call Detail Records. For usage based services purchased by CLIENT, NETRIO shall, upon request, make available to CLIENT its call detail records (“CDRs”) via a website or FTP site within ten (10) business days from the completion of each billing cycle.

4.0 Voice Acceptable Usage Policy. All voice service rate plans, whether unmetered (monthly flat-rated) or metered (usage-based) on NETRIO Product Description and SOW provided to CLIENT are based on standard business use and standard call distribution. Examples of non-standard usage include but are not limited to excessive amounts of the following: short duration calls, failed call attempts, intrastate calling, invalid CPN (inadequate signaling-related information, non-RBOC/non-major mobile carrier calls and average per line minutes of usage on unmetered product plan.

4.1 CLIENT’s Signaling Responsibilities for IP Terminating traffic. CLIENT may not deliver excessive amounts of traffic that does not contain signaling information identifying the telephone number of the calling party and if different, of the financially responsible party. In this regard, CLIENT will normally be deemed the “financially responsible party.” If CLIENT does not populate information in the CPN parameter NETRIO reserves the right to do so. This requirement applies to all SS7 information including, but not limited to CPN and Charge Number. This requirement also applies to Internet protocol signaling messages, such as calling party identifiers contained in Session Initiation Protocol (SIP) header fields, and to equivalent identifying information as used in successor technologies.

4.2 If CLIENT’s use of Service(s) exceeds business usage and call distribution standards, NETRIO reserves the right at its sole discretion to change CLIENT’s rates with seven (7) days written notice and/or block certain traffic as necessary to conform with NETRIO’s acceptable use standards per section 4.6 of this agreement. NETRIO also reserves the right to block any traffic that it deems harmful to the functioning of its network. If CLIENT exceeds NETRIO’s Voice Acceptable Usage Policy by going over the unmetered line size or the traffic blend then NETRIO reserves the right to change rates, rate plans, and apply surcharges to the excessive usage.

4.3 For metered Rate Deck based services purchased by CLIENT NETRIO may change its prices at its sole discretion. Each rate change notice must include the effective date of the rate change along with the new rates. Rate changes shall only be effective on a going-forward basis, effective upon the notice period to CLIENT (“Notice Period”) specified in the applicable Service Order. Rate changes shall not apply to Service previously provided to CLIENT by NETRIO. Notice of price changes by NETRIO shall be communicated to CLIENT by email. In the absence of CLIENT’s formal acceptance of any such price change, CLIENT shall be deemed to have accepted such price change when NETRIO sends email, or by continuing to use NETRIO’s Services. CLIENT will provide email address for receiving Rate Change notifications on the applicable service order.

4.4 Dialer Traffic & Short Duration Surcharge. CLIENT shall not use NETRIO to terminate Dialer with Short Duration calls. A Short Duration call is a completed call that is six (6) seconds or less in duration. CLIENT will not intentionally send Short Duration traffic. It is CLIENT’s responsibility to monitor its traffic for SD traffic. If, however, Short Duration traffic is sent to NETRIO, the number of Short Duration calls during any billing cycle must not exceed the following threshold of 10% of calls to NETRIO. Short Duration traffic percentages are calculated based on the total traffic associated with the CLIENT terminating traffic trunk to NETRIO. For SD Threshold violations, NETRIO will charge, without notice and in addition to the per minute rates (Interstate Long Distance, Intrastate Long Distance and Local, if applicable) a surcharge equal the higher of our costs from our underlying carriers or a $0.01 per Short Duration call exceeding the applicable SD Threshold during that billing cycle for the item in the Service Order.

5.0 Calling Scope. For outbound calls terminating on NETRIO’s network, the calling scope for outbound Local Calls (if applicable) will be as defined on the Service Order. All other outbound calls not part of the local calling scope will be either charged the applicable Long Distance usage rate when within the U.S. 50 states plus Canada or charged the applicable International Service usage rate.

6.0 Fraudulent Usage. CLIENT is liable for all completed calls made utilizing the Service, whether authorized or unauthorized. CLIENT shall not hold NETRIO liable for any fraudulent calls that may occur on CLIENT’s network, including any fraud related to unauthorized access of CLIENT’s network. Regardless of whether or not NETRIO blocks Service, CLIENT shall still be fully liable for all fraudulent calls made. CLIENT agrees to be liable for any usage cost that NETRIO incurs including areas not covered in SOW or CLIENT provided Rate Deck.

6.1 For CLIENT’s that use NETRIO for International and Extended Domestic calling, CLIENT understands there are additional risks and CLIENT is liable for these calls as noted in Section 6.0 above.

7.0 Third Party Networks. At times, NETRIO may utilize the public Internet and third party networks outside of its control in conjunction with the provision and maintenance of the Services and its websites. In such cases, NETRIO makes no representation that the Internet or any such third party network will adequately secure or protect the privacy of CLIENT or any end user’s personal information, and NETRIO expressly denies any associated liability. Actions or inactions caused by these third party networks can result in situations in which NETRIO CLIENTs’ connections may be impaired or disrupted. Although NETRIO will use commercially reasonable efforts to remedy or avoid such events, NETRIO expressly disclaims warranties with respect to these third party networks or any disruptions that may occur thereon.

8.0 Emergency 9-1-1 Calling. With respect to Emergency 9-1-1 calling, NETRIO only offers 9-1-1 services in certain areas. CLIENT agrees to verify 9-1-1 calling availability with NETRIO prior to offering the Service. CLIENT shall be required to provide NETRIO with the area code and number assigned to a particular device and provide NETRIO with the true, accurate and complete street address at which the device will be used. CLIENT further agrees not to move such device to another location without first providing NETRIO with notification of such move and the new address on a change of address form designated by NETRIO. CLIENT understands that the address registered with NETRIO as being associated with a device and area code and number will be the address provided when Emergency 9-1-1 service is accessed from such device and/or area code and number. If not a NETRIO Hosted PBX Service, then CLIENT’s premises equipment must out pulse a valid Calling Party Number (“CPN”) via the CPN field with an area code and telephone number previously registered with NETRIO on NETRIO’s approved form. The CPN that is out pulsed, and the associated address previously registered with NETRIO will be used for 9-1-1 routing. All out pulsed numbers must be registered with a true, accurate and complete street addresses for NETRIO’s Emergency 9-1-1 service. CLIENT dialed Emergency 9-1-1 calls using unregistered CPN will be routed to a National Call Center where agents will try to determine which local PSAP the call needs to be routed to and transfer the call accordingly. The CLIENT surcharge for these unregistered Caller ID’s will be $170 per call or at NETRIO’s current rate.

Also with respect to Emergency 9-1-1 calling, there are certain circumstances in which Emergency 9-1-1 service will not function properly or be available, including without limitation (a) any loss of power to the system, equipment or a particular telephone device, (b) the telephone device to which a particular number has been assigned is moved to another location or area where it was originally installed and registered (Service does not cover “nomadic” devices), and (c) there is an outage, degradation or other disruption to CLIENT’s broadband connection. NETRIO recommends that CLIENT provides stickers that may be placed on telephone equipment alerting users of the above limitations.

9.0 Equipment. CLIENT understands and acknowledges that installation and delivery of the Services may require the use of certain CLIENT Equipment and/or NETRIO Equipment. CLIENT represents that is owns or otherwise has the right to use the CLIENT Equipment in connection with the Services. CLIENT shall be fully responsible for the installation, repair, and operation of any CLIENT Equipment and shall ensure the compatibility of any CLIENT Equipment with NETRIO Equipment will not (a) relocate, rearrange, repair, disconnect, or otherwise modify the Service or any NETRIO Equipment without NETRIO prior written consent; or (b) create or allow any liens or other encumbrances to be placed on any NETRIO Equipment. CLIENT will use commercially reasonable efforts to protect and maintain NETRIO Equipment in a secure location at the CLIENT Premises within conditions (including room temperature) that customary and reasonable for such equipment, and shall be fully liable for all costs, charges, or expenses associated with damage to or loss of NETRIO Equipment beyond normal wear and tear. Any NETRIO Equipment (and any replacements thereof) may be refurbished equipment, so long as the equipment is of good quality and appearance and supports the Services.

10.0 Equipment Return upon Termination. Upon the termination of this Agreement or any Service, CLIENT shall securely pack, ship and return to NETRIO all NETRIO Equipment at CLIENT’s expense, to the address designated by NETRIO. If the NETRIO Equipment has not been timely returned within ten (10) days after the termination of the applicable Service, NETRIO shall invoice CLIENT and/or charge CLIENT’s method of payment, and CLIENT shall pay, for the full replacement value of any NETRIO Equipment. NETRIO Equipment remains the property of NETRIO at all times and NETRIO reserves all other rights and remedies including retrieval. CLIENT will not withhold access to NETRIO to retrieve unreturned equipment, NETRIO may charge CLIENT’s selected method of payment, and CLIENT will pay and be liable for up to a one thousand dollar ($1,000.00) equipment return fee per CLIENT location.

11.0 Ancillary Options & Fees. The below mentioned services and features will be addeded as needed or requested by customer to the order. The associated rates and cost for these Ancillary Options & Fees shall be billable to customer if required regardless if identified in the Service Order.

Ancillary Options and Fees
Toll-Free Numbers $1.00 MRC $10.00 NRC Per number (additional per MOU usage rates will apply)
DID Numbers $.50 MRC $1.00 NRC Per Number ( for Hosted 1 DID is included per seat. A per MOU uage rate may apply per the Service Order)
Number Porting Fee $6.00 NRC Per number for Toll-Free and DID’s
DID Directory Listing $10.00 NRC Per number
DID CNAM Registration $5.00 NRC Per DID with registered Caller Name (for outbound appearance)
CNAM Inbound Deisplay $2.50 MRC $10.00 NRC Per DID that displays Caller Name (for inbound appearance on Hosted customers only. SIP Trunking customer will be charged based on higher metered rate on Service Order)
911 Service Fees $1.50 MRC $10. 00 NRC Per registered 911 number (typically 1 per site)
Pay Phone Access $0.95 per call Per call for Toll-Free calls originated from payphones
Domestic Directory Assistance No Charge This is provided free with BING or comparible directory assistance service. There is a best effort only service
International & Extended Domestic Rates per International Rate Deck Billing Increment 60 Second minimum / 60 Second rounding
Supplemental Order Minimum Requirement A minimum NRC of $10 may be applied for each additional service order submitted by customer
Supplemental Technical Support For additional technical support NETRIO’s hourly rate will be $75 per hour with a two hour minimum during business hours and $125 per hour with four hour minimum during non business hours.

*Note: NRC indicates Non Recurring Charges
MRC indicates Monthly Recurring Charges
MOU indicates Minutes of Usage
DID indicates Direct Inward Dial (Telephone Number)

Schedule of NETRIO Products and Services
SCHEDULE B
Managed Services for Data, Circuits, Wireless, Broadband and related Equipment

1.0 CLIENT Premises; Title to Equipment. If access to non-NETRIO facilities is required for the installation, maintenance, grooming, movement, upgrade and/or removal of NETRIO network or equipment, CLIENT will, at its expense: (a) secure such right of access and (b) arrange for the provision and maintenance of power and HVAC as needed for the proper operation of such equipment and network. Title to NETRIO provided equipment (including software) remains with NETRIO. CLIENT will not create or permit to be created any encumbrances on NETRIO provided equipment.

2.0 Point of Termination-Demarcation. Point of Termination or Demarcation (DMARC) means the location where NETRIO’s Service responsibilities end and CLIENT or End User’s responsibilities begin. NETRIO will designate the physical DMARC location. If required, CLIENT will be responsible for all costs, including any facility cross connects, should the DMARC location need to be extended or changed.

3.0 Burstable Usage. If Burstable rates are applicable for the Service, usage model will be determined in the SOW else as determined by Underlying Carrier model.

4.0 Acceptable Use Policy (AUP). All use of the Service must comply with the NETRIO Acceptable Use Policy posted at https://www.NETRIO.com/Terms/AUP and incorporated herein. NETRIO may immediately suspend, limit or terminate all or any part of the Service, or do any or all of the foregoing, if CLIENT or any End User violates the AUP or any applicable law or regulation that exposes (a) NETRIO to criminal or civil liability or (b) the NETRIO or its users to harm, as determined in NETRIO’s reasonable discretion.

5.0 Change Request. If CLIENT requests a change to a Service after NETRIO’s acceptance of the Order, NETRIO may change the estimated delivery date and charge a change fee as reasonably determined by NETRIO. In the event CLIENT desires to terminate services prior to delivery of the Service, then a cancellation charge will be applied equal to one month’s monthly recurring charge plus any other incurred cost by NETRIO for the canceled service.

6.0 Expedite Request. Any CLIENT request to expedite Service delivery will be deemed an Expedited order and Expedite NRCs will apply. Upon NETRIO’s receipt of an Expedited order request from CLIENT, NETRIO will provide CLIENT with a new estimated delivery date. CLIENT must pay all Change Charges and Expedite NRCs regardless of whether: (a) CLIENT cancels the Service; or (b) the Service is not delivered on the estimated delivery date.

7.0 SERVICE DELIVERY; ACCEPTANCE.

7.1 Initially, NETRIO will provide CLIENT written notice that the Service is ready. CLIENT will be deemed to have accepted the Service for the commencement of billing. This Service Start Date is the earliest to occur of: (a) the date on which CLIENT first places live traffic on the Service; or (b) five (5) days after NETRIO’s aforementioned notification.

7.2 In the event CLIENT cannot utilize Service due to events outside NETRIO’s control including but not limited to CPE, building wiring or other impairments will not delay the Service Start Date.

8.0 Unforeseen Cost, Delay and Construction. Should delivery of NETRIO Services be impacted by unforeseen costs, including Construction, Delay or other complications outside of NETRIO’s control, NETRIO will inform CLIENT if specific Services can be delivered and provide additional charges if required. CLIENT can choose to accept to pay for additional charges or cancel the specific service within the Service Order. All other Services within the SOW will remain part of contracted Service Order. In the event of a Delay of an item in the Service Order, NETRIO will inform CLIENT of Delay and anticipated Delivery Date of the affected item. The affected item in SOW will not be billed until delivered. All other unaffected items in the SOW will remain billable based on their respective Delivery Date.

Schedule of NETRIO Products and Services
SCHEDULE C
SD-WAN Managed Services

1.0 Service Overview and Components. NETRIO is providing a managed SD-WAN + SD-Security solution, based on the Versa Networks software. The solution intersects network, security and application needs at any location; including features that range and/or include routing, SD-WAN, SD-Security. In delivery of the Services, CLIENT will have a CLIENT Premise Equipment (“CPE”), which may be rented or sold to CLIENT, enabling the Services at the CLIENT location, which may be a branch, headquarters, data center or Cloud location/environment. CLIENT shall also be provided a partitioned use of the NETRIO Director for visibility of their locations and/or reporting capabilities via Analytics view.

2.0 Pre-Installation Documentation. CLIENT must assist in the completion of technical documentation prior to installation commencement. The documentation provides NETRIO with the information needed to design and configure the Service, including, without limitation: access type and bandwidth, LAN and WAN network design, number sites, and application/network types and priorities, as well as contact information for individuals authorized to approve Service changes and to be notified in the event of a security incident if CLIENT has purchased SD-Security services through NETRIO (CLIENT must ensure that a listed contact is available 24 hours a day, 7 days a week). Installation timeframe Service Level Agreements (SLA) will not begin until the CLIENT has provided this technical documentation. NETRIO is not providing a Managed Security Service Provider (“MSSP”) function and if CLIENT is working with a 3rd Party MSSP, NETRIO can provide such provider with required logs, assuming it is supported by NETRIO; additional terms/costs/requirements may apply.

3.0 CPE Installation and Configuration. As part of the delivery of the Services, CLIENT is required to have a CPE (which may also include the Virtual deployment of the Services) at each location (Note: NETRIO supports High Availability). In order for NETRIO to remotely configure the Services, CLIENT is required to provide configuration information which shall include, but not limited to, WAN/LAN information, Network Topology/Designs. Further, CLIENT is required to ensure that its Location is able to support the Services being installed and that no existing and/or 3rd Party technology is hindering NETRIO’s abilities to deliver the Services.

4.0 Service Configuration. The Service is configured through a centralized management platform, that is accessible by CLIENTs via the NETRIO Director. If CLIENT is looking to handle its own Service Configuration, via a co-managed solution, NETRIO will support this, however, additional requirements and/or training is required.

5.0 Credit Verification. NETRIO, in its sole discretion, retains the right to run a credit check on the CLIENT at any time. CLIENT may not unreasonably refuse to authorize such credit check if CLIENT’s authorization is required. CLIENT agrees to supply NETRIO with any and all necessary information to verify CLIENT’s credit rating prior to providing CLIENT with access to any service and/or equipment. NETRIO retains the right to cancel service if NETRIO believes, in good faith, that CLIENT’s credit is impaired, with no penalty to NETRIO.

6.0 Rental Terms and Conditions; CPE Replacement and Return. CLIENT shall be subject and bound to NETRIO’s Equipment Rental Terms and Conditions. During the Term, NETRIO will replace failed CPE with an equivalent device for no additional charge, upon NETRIO deeming such failure in alignment with manufacturer’s warranties. Upon Service termination, or CPE replacement, CLIENT must request a Return Material Authorization (“RMA”) from NETRIO and return the CPE within 30 days of the termination, or replacement, or pay NETRIO for its replacement costs. CLIENT is responsible for the security of the CPE while it is on the CLIENT’s premises and will be charged a replacement cost for any CPE or ancillary hardware, such as a wireless USB modem, that is stolen, lost or damaged.

7.0 Portals. CLIENT shall have access to the Director for visibility into the Services at each CLIENT Location. Further, CLIENT will have access to the NETRIO CLIENT Portal for Support engaging, Account interfacing, including Billing.

8.0 Access to Devices and Data. CLIENT acknowledges that NETRIO will have network access to communicate with the Equipment for purposes such as authentication and software updates; and will have access to, and may utilize for any purpose all information regarding networking characteristics, usage, performance and related data involved in the use of the NETRIO Service. NETRIO will protect this data, adhering to standard industry compliance principles, and will not divulge to anyone outside its company, subcontractors, or agents, unless required by law via a subpoena.

9.0 Service Level Agreements (SLA), Service Availability, and SLA Exclusions. See Exhibit C for a complete list of terms and conditions on SLA, service availability and SLA exclusions.

10.0 Equipment. CLIENT understands and acknowledges that installation and delivery of the Services may require the use of certain CLIENT Equipment and/or NETRIO Equipment. CLIENT represents that is owns or otherwise has the right to use the CLIENT Equipment in connection with the Services. CLIENT shall be fully responsible for the installation, repair, and operation of any CLIENT Equipment and shall ensure the compatibility of any CLIENT Equipment with NETRIO Equipment will not (a) relocate, rearrange, repair, disconnect, or otherwise modify the Service or any NETRIO Equipment without NETRIO prior written consent; or (b) create or allow any liens or other encumbrances to be placed on any NETRIO Equipment. CLIENT will use commercially reasonable efforts to protect and maintain NETRIO Equipment in a secure location at the CLIENT Premises within conditions (including room temperature) that customary and reasonable for such equipment, and shall be fully liable for all costs, charges, or expenses associated with damage to or loss of NETRIO Equipment beyond normal wear and tear. Any NETRIO Equipment (and any replacements thereof) may be refurbished equipment, so long as the equipment is of good quality and appearance and supports the Services.

11.0 Equipment Return upon Termination. Upon the termination of this Agreement or any Service, CLIENT shall securely pack, ship and return to NETRIO all NETRIO Equipment at CLIENT’s expense, to the address designated by NETRIO. If the NETRIO Equipment has not been timely returned within ten (10) days after the termination of the applicable Service, NETRIO shall invoice CLIENT and/or charge CLIENT’s method of payment, and CLIENT shall pay, for the full replacement value of any NETRIO Equipment. NETRIO Equipment remains the property of NETRIO at all times and NETRIO reserves all other rights and remedies including retrieval. CLIENT will not withhold access to NETRIO to retrieve unreturned equipment, NETRIO may charge CLIENT’s selected method of payment, and CLIENT will pay and be liable for up to a one thousand dollar ($1,000.00) equipment return fee per CLIENT location.

Exhibit A
Training and Support

1.0 Training. During the first ten (10) days following the Effective Date, NETRIO will offer a training session with respect to the Service and , at no cost to Customer. This training shall take place at a designated NETRIO facility or remotely via a scheduled collaboration session. Thereafter, if Customer requests additional training, NETRIO may provide such training subject to its availability and payment of NETRIO then-current training fees.

2.0 Support.

2.1 NETRIO standard Technical and customer support is summarized as follows:
2.1.1 Tier 1 Support (Monitoring and Surveillance)-related to SD-WAN Services
2.1.2 Tier 2 Support (Monitoring-Surveillance-End User Support-provisioning-Trouble Isolation and Software Updates
2.1.3 Tier 3 Support (Operations Escalations)
2.1.4 Tier 4 Support (Engineering Escalations)

2.2 NETRIO will provide Support for the management of the cloud based system necessary to deliver the Service to End Users. Customer shall submit “trouble tickets” via NETRIO Customer Support Portal or, if escalation is required, Customer shall email support@NOCservices.com. For all Tier 4 or 4 issues which must be escalated, Customer may contact their account representative by phone. Customer shall report to NETRIO and reported Service issues in such detail as to make it possible for NETRIO to duplicate such defects in an effort to correct them. If Customer provides NETRIO with suggestions, modifications, improvements, or other feedback to the Service, then NETRIO may freely use such feedback

2.3 Device Turn Up. Customer must provide the End User turn-up data (obtained from the NETRIO Turn-Up template) and assist in full for the successful turn-up of the Device by NETRIO. The turn up interval assumes that there is a working WAN connection at the site that is public interfacing to connect to the NETRIO platform and that customer CPE is onsite and no 3rd Party variables are hindering the successful turn-up of Services by NETRIO

EXHIBIT B
Service Level Agreement

NETRIO is committed to providing CUSTOMER with the highest quality services and availability possible. The Service Level Agreement is for paying customers and defined as follows:

1.0 SERVICE AVAILABILITY

1.0.1 Services Obligations:
NETRIO makes its best efforts to deploy Services 24 hours a day, seven days a week throughout the year. Our obligation as it pertains to any credits for Service outages shall become effective when Services are less than 99.99% of monthly time (“Service Availability Obligation”), commencing on the Installation Date. Failure to meet the above Service Availability Obligation shall entitle Customer to claim service credits as detailed in this Service Level Agreement.
Restrictions to SLA:

1.0.1.1 Outages deemed by NETRIO (acting reasonably and with evidence) to be the direct result of End User actions, fault or failure shall not be included when calculating the Service Availability Obligation.
1.0.1.2 The Service Availability Obligation will not include any unavailability resulting from (i) standard NETRIO maintenance or scheduled maintenance, (ii) any issue relating to NETRIO’s inability to gain access to its End User’s premise, (iii) fraudulent acts and/or any other grossly negligent or malicious action or inaction by third Parties.
1.0.1.2.1 Any failure, outage or other issue relating to Customer owned and/or operated cabling, infrastructure, equipment, (v) any failure, outage or other issue with Customer circuits, (vi) applications not purchased through NETRIO, (vii) reasons of Force Majeure as defined in the Agreement.

1.1 INCIDENT REPORTING

1.1.1 SLA issue reporting process:
1) End User shall contact within ten (10) days of any issue with the Services to report the issue.
2) The Customer will log details of the reported problem to NETRIO within one (1) business day from the date that they have been made aware of a Services issue.
3) NETRIO will designate a priority level to the Services issue logged by Customer into the NETRIO NOC Department.
4) The incident is diagnosed and the necessary NETRIO action will be taken to resolve the issue.
5) The NETRIO NOC Department will diagnose the incident as either a service affecting issue or a non-service affecting issue and if necessary report details of the Services issue to Customer.
6) If there is a viable Services claim, NETRIO, upon issue being resolved by the NETRIO NOC Department will confirm to Customer that the Service has been restored and what the applicable credit, if any.

The date when such Service issue occurred will be considered the date any applicable credits, if any, will begin and will be calculated pursuant to this SLA. The final finding as to any applicable credits will be determined by NETRIO at its sole discretion.

Escalation procedures can be invoked by any of the following means:
1) Log ticket via support@NOCopeations.com
2) Report Issue to Tier 2 via support@NOCoperations.com (including logging a ticket or
3) Report issue to Tier 3 via support@NOCoperations.com
4) TBD -mutually agreed upon between NETRIO and Customer

Either Party (NETRIO or Customer) may at any time during the incident request immediate escalation. All request are to be clearly stated with the reason for escalation and any subsequent actions shall be recorded in NETRIO ticketing system.