Terms & Conditions

1. TERMS AND CONDITIONS

The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. No waiver or amendment to this contract or these terms and conditions shall be binding on Company, unless made in writing expressly stating that it is such a waiver or amendment and signed by a duly authorized representative of Company. Service Order Forms executed after this Agreement may also have amendments to this underlying agreement.

2. SERVICES

Company agrees to provide Customer with services, products, or equipment (“Services”) as specified in the Service Order Form (“SOF”). Company shall, upon Customer request and only as outlined in the SOF, install, and perform initial configurations for Company provided equipment, including but not limited to SIP Phones, switches, routers, and modems.

3. EQUIPMENT

In offering the Services, Company may supply Equipment to Customer.

1. Company supplier will replace Equipment only if the Equipment is deemed to be defective and covered under the warranty.
2. Any and all equipment supplied to

Customer by Company under this Agreement shall, if found to be defective for the duration of the service order be replaced by Company at no charge to Customer. Company will not cover replacement of lost, stolen, mistreated or modified equipment. Company does not assume any responsibility or warrant the condition, merchantability, or fitness for a particular purpose of any Customer owned, rented, or purchased equipment other than that provided by Company under this agreement.

4. FEES, BILLING, CHARGES AND PAYMENT

Customer agrees to pay Company all fees when due. Either payment by Company check, credit card or ACH is accepted.

1. Credit Card Payment: Customer agrees to notify Company of any change to the original credit card information provided to the Company, including, but not limited to, changes in account number, expiration date or billing address. Company shall not be responsible for any charges made by the credit card issuer to Customer's credit card account for exceeding credit limit, insufficient funds, or other reasons.
2. Credit Terms. All Services provided to Customer and covered by the Agreement shall at all times be subjected to credit approval or review by Company. Customer will provide such credit information or assurance as is requested by Company at any time. Company, in its sole discretion and judgment, may discontinue credit at any time without notice. In this case, rented equipment would either be returned or purchased from Company.
3. Billing. Company will send or make available to Customer a monthly on-line invoice for the Services and will bill all charges invoiced to Customer's account to the Customer credit card or account. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes, and any other applicable charges. Monthly service fees are paid in advance of each month's service; toll charges and any other applicable charges are billed in arrears. Company reserves the right to charge the Customer credit card or account for toll charges at any time if Customer's cumulative toll charges for the current month exceed two hundred and fifty dollars ($250.00). Billing for monthly service fees commences upon purchase of the Services, and the monthly service fee shall be prorated to consider any partial month that may occur as the result of the date services are initiated. Thereafter, billing for monthly phone services will occur in advance of the month the Services are provided, whereas billing for any toll or long-distance charges will occur in arrears. Setup, Installation, or activation fees may be billed prior to the commencement of services. Requests for additional one-time services may be billed 50% in advance of services and 50% upon completion if not otherwise specified on an SOF.
4. Upon credit approval by company Customer may issue purchase order and pay by Company check.
5. Late/Non-Payment. If any charges for the Services are due but unpaid for any reason including, but not limited to, nonpayment or declined Customer credit card charges, Company may suspend or terminate the Services and all accrued charges shall be immediately due. Company may charge Customer interest (1.5% per month) on those charges and a late fee of $15. If the Customer fails to pay Company within 30 days of billing date, Company has the right to disconnect the Services without notice and/or send the outstanding invoice to collections. Upon disconnect, Customer agrees to immediately pay all amounts owed to Company. Company reserves the right to charge Customer a $150.00 reestablishment of service fee. Upon disconnect a valid credit or debit card will be required to reinstate service. Disconnection by Fastmetrics of service due to non-payment does not release Customer from the obligations under this agreement.
6. Taxes. Service prices do not include applicable customs duties, sales, use, value added, excise, federal, state, local, public utility, or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides Company with an appropriate exemption certificate. If any amounts paid for the Services are refunded by Company, applicable taxes may not be refundable. At the present time, federal excise taxes are applicable on metricVOICE Service, as are sales taxes on equipment that is purchased or rented by the Customer.
7. Credits. Customer acknowledges and agrees that the Services are provided "as is, where is." Credit allowances are under the sole discretion of Company.
8. Discounts. From time to time in its sole discretion, Company may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be entered by Customer upon purchase of the Services. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service.
9. No Fault Found. Company reserves the right to charge Customer for services at the rate of $150 an incident in cases where Customer has contacted Company more than twice on an issue and no fault can be found with Company’s services.
10. Billing Disputes. Customer must dispute any charges for the Services within thirty (30) days of receipt of the monthly online invoice or Customer waives any objection.

5. TERM & TERMINATION

This Agreement and all follow on SOFs shall have an initial term of thirty-six (36) months from the effective date of service activation. SOFs may have a different term, if stated on the SOF the term on the SOF supersedes the term on the MSA. That term shall begin to run when the connection is completed. Expiration of the Term does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder. Company may terminate this Agreement at Company’s discretion with 30 days written notice to Customer if: Customer’s Account is delinquent, and customer fails to cure such failure to pay within thirty (30) days of notice from Company. Customer agrees to pay Company for all services rendered up through the termination date of services, no later than 30 days after such payments are due. In the event of such Customer Breach of the terms of the Agreement, Customer shall reimburse Company for all reasonable attorney fees, court costs, collection and other costs incurred by Company in the enforcement of the Company’s rights hereunder and Company may keep any deposits or other payments made by Customer.

Customer may terminate this Agreement if Company fails to comply with any material term of this Agreement and fails to cure such failure within thirty (30) days; except in cases where the Customer terminates this Agreement pursuant to the reasons expressly listed above, Customer shall pay Company an early termination fee as specified in the SOF. Company reserves the right to charge the Customer a two hundred fifty ($250.00) dollar reinstallation fee for any terminated service.

With the exception of situations noted above, Customer may submit a thirty (30) day written request for termination. Any and all fees for services or early termination will become due within thirty (30) days from the final billing date.

6. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT

For purposes of this section, Equipment refers to equipment supplied by Company, whether on loan, on rent or via any other manner. Customer shall not modify the Equipment in any way without the express written permission of Company. Customer shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, Customer is responsible for all lost, stolen or damaged Equipment and may be required to purchase a replacement to continue service or regardless of whether they wish to continue service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes and a handling fee. Customer shall immediately notify Company of any lost or stolen Equipment and shall cooperate with Company in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At Company’s sole option, failure to report lost or stolen equipment in a timely manner will cause Customer to be responsible for all service fees accrued until the time that Company is informed of the loss or theft and can put into effect a termination of the Services.

7. CHANGES

Customer is responsible for providing the Company with ninety days (90) advance notification of intentions to physically move their service address, office location, or any equipment or Services provided by Company. ‘Move-of-Service’ fees may apply as defined in the SOF.

8. TECHNICAL SUPPORT

Company will make available technical support to customers via telephone and e-mail for the Services and the Equipment provided. Support for other applications and uses is not provided or implied unless agreed to in writing by Company and Customer.

9. DISCLAIMERS OF WARRANTY ON SERVICES

COMPANY MAKES NO WARRANTIES AS TO ANY COMPANY SERVICES ORDERED BY CUSTOMER UNDER THIS AGREEMENT. COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY INTELLECTUAL PROPERTY WARRANTIES OF ANY TYPE.

10. INDEMNIFICATION

Customer agrees to defend and indemnify and hold harmless Company and its officers, directors, employees, affiliates, agents, contractors, and subsidiaries from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including, without limitation, all reasonable court costs and attorneys’ fee) arising out of or relating to any act, materials, or information transmitted in connection with the Service, regardless of the type of claim or nature of the cause of action.

11. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR SUBSIDIARIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGE, OR ANY DAMAGES, INLCUDING BUT NOT LIMITED TO LOSS OF DATA, REVENUE OR PROFITS, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OF COMPANY, ITS VENDORS OR OTHERWISE, OR UNDER ANY OTHER CAUSE OF ACTION, THAT RESULT IN ANY WAY FROM: (1) THE SERVICES OR CUSTOMER’S USE OF OR INABILITY TO USE COMPANY’S SERVICES; (2) ACCESS TO THE INTERNET, RELATED SERVICES OR ANY PART THEREOF; (3) CUSTOMER’S RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH COMPANY’S SERVICES; (4) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION; OR (5) ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS, COMMUNICATION LINE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF CUSTOMER’S ACCOUNT. COMPANY’S TOTAL AGGREGATE LIABILITY FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO NO MORE THAN THE PRO RATA ADJUSTMENT OF THE FIXED MONTHLY CHARGES BILLED BY COMPANY FOR THE PERIOD OF ANY INTERRUPTION IN SERVICE.

12. ACCEPTABLE USE POLICY

CUSTOMER, INCLUDING ANY PERSON ACCESSING THE INTERNET BY OR THROUGH CUSTOMER, WHETHER OR NOT SUCH ACCESS IS AUTHORIZED, AGREES TO COMPLY AT ALL TIMES WITH THE ACCEPTABLE USE POLICY (“POLICY”) WHICH IS HEREBY INCORPORATED BY REFERENCE AND IS AVAILABLE TO CUSTOMER AT COMPANY’S WEB SITE: www.fastmetrics.com/usepolicy.php COMPANY RESERVES THE RIGHT TO REVISE THE POLICY AT ANY TIME AND SUCH REVISIONS SHALL BECOME EFFECTIVE THIRTY (30) DAYS AFTER COMPANY FIRST POSTS THE REVISED POLICY AT ITS WEB SITE. CUSTOMER AGREES TO PERIODICALLY REVIEW THE POLICY AS POSTED ON COMPANY’S WEB SITE. CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER THE EFFECTIVE DATE OF ANY REVISIONS TO THE POLICY SHALL BE CONCLUSIVELY DEEMED AS CUSTOMER’S ASSENT TO THE REVISED POLICY.

13. NOTICES

Whenever any notice or demand is to be given under this Agreement, the notice shall be sent through: (1) United States mail to the then current business address of the other party; (2) facsimile transmission to the then-current facsimile number of the other party; or (3) electronic mail to the then-current electronic mail address of the other party. For purposes of updating or otherwise modifying the Policy, Customer shall be deemed conclusively notified of any such changes thirty (30) days after such changes were first posted on Company’s web site.

14. FORCE MAJEURE

Company shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electrical power or other utility service, unavailability of any telecommunications service or connection to any telecommunications service, computer, software, backbone or network error, or any other cause beyond the reasonable control of Company.

15. MISCELLANEOUS

This Agreement, including the Acceptable Use Policy, and together with follow on SOFs constitutes the entire agreement between Company and the Customer with respect to the Services and supersedes all prior or contemporaneous agreements, representations, statements, negotiations, understandings, proposals, or undertakings, whether oral or written. Except as otherwise provided in this Agreement, this Agreement shall not be amended or modified except in writing and then signed by both parties. This Agreement shall be governed by and construed in accordance with the laws of The State of California, without regard to conflicts of the law’s provisions. Sole and exclusive jurisdiction for any action or proceeding arising out of or related to this Agreement shall be with an appropriate state or federal court located in San Francisco, California. The prevailing party in any action under this Agreement shall be entitled to reasonable court costs and attorney fees. Any cause of action Customer may have with respect to the Services must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be enforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.

16. CCPA

Company agrees that it shall not: (a) sell or share any Customer Data; (b) retain, use, or disclose Customer Data outside the purposes specified in this agreement or as otherwise permitted under the CCPA; (c) retain, use, or disclose Customer Data outside the direct business relationship with the Customer; and (d) combine Customer Data with information it collects from another person, including a consumer. The Company and the Customer acknowledge and agree that: (i) the Customer Data is disclosed to the Company only for limited and specified purposes; (ii) with respect to Customer Data, the Company will comply with all applicable obligations under the CCPA and provide the same level of privacy protection as is required by the CCPA; (iii) the Customer has the right to take reasonable and appropriate steps to help ensure that the Company uses the Customer Data in a manner consistent with the Company's obligations under the CCPA; (iv) the Company must notify the Customer if the Company makes a determination that it can no longer meet its obligations under the CCPA; and (v) the Customer has the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of Customer Data. "Customer Data" means (1) all data of Customer transmitted or processed through the Services, and (2) any other personal information provided by Customer to, or collected by or on behalf of, Company in relation to this agreement. The terms "collect," "consumer," "personal information," "sell" and "share" have the respective meanings ascribed to them by the California Consumer Privacy Act of 2018, as amended from time to time, including by as amended by the California Privacy Rights Act of 2020 ("CCPA").