INTRODUCTION

Fonality is committed to providing our customers with a great user experience, the latest features and performance enhancements and responsive customer service. Therefore, we offer to all PBXtra customers the option to purchase an Annual Software Maintenance and Support Agreement (the “Agreement”, or “Support Agreement”).

 

Please Note the Following Important Features of this Agreement:

a. Purchase of this Agreement is optional. Only customers with a current, fully paid Agreement will be entitled to receive the benefits outlined herein.

• Customers not electing to purchase a Support Agreement will be entitled to 2 hours of support during the first 30 calendar days subsequent to receiving their PBXtra system (or 35 days from the Fonality ship date, whichever comes first) to aid in phone system installation, but will not be eligible to receive technical support beyond this period.

b. Annual Software Maintenance and Support Agreements are non-transferable. Resale of any PBXtra system will void any Agreement in effect. The purchaser will be required to purchase a new Agreement to receive the benefits outlined in this Agreement.

 

c. An Agreement may be purchased or renewed at any time; however, significant additional fees will apply for purchases after the initial system purchase. Please contact http://www.fonality.com/customer_support.html for details.

 

d. Fonality may terminate this Agreement and issue a pro-rated refund at its discretion due to issues identified in Section 5 below.

 

e. This Agreement will automatically renew each year unless we receive notice from you of termination prior to renewal.

 

SCOPE OF THE AGREEMENT

• Software Maintenance

  During the term of the Agreement, the customer is eligible to receive certain software updates, including critical bug fixes, security patches and other patches determined at Fonality’s sole discretion to be necessary for proper system operation.
• While most updates will appear seamless to the customer, some updates may require a software download, system reboot or other action on the part of the customer.
  • Future Version Upgrades: From time to time, Fonality may release new software versions and or feature upgrades. These releases are paid upgrades and are not considered Software Maintenance.
  • Support of Non-current Versions: Fonality will provide Technical Support as described below for the current version, and for two prior versions. In some cases, resolution of a technical support issue may require upgrading to the current version at the customer’s expense.
  • 90 Day grace Period. During the first 90 days after the purchase of a new PBXtra system, if Fonality releases any new software versions or feature upgrades, your system will be upgraded to most current version at no charge.

• Obtaining Technical Support

  The following Technical Support options are available for your PBXtra System;

• General Knowledge Base: http://help.fonality.com

  • The Fonality knowledgebase contains a wide range of information pertaining to installation, configuration, usage and maintenance of your PBXtra system. Customers are highly encouraged to see if their technical support issues are addressed in the Knowledgebase.

  Email Form: http://support.fonality.com

  • Sending an Email via our support website at http://support.fonality.com is the best way to contact Technical Support. Every email message sent to Fonality support is assigned a ticket number, or updates an existing ticket. Customers with ticket numbers will be served before those who opt to use support by phone without a ticket number.

  Telephone: 1-310-861-4300, Select Option #2

  • Telephone support is only available during our normal hours of operations (M-F 8am - 5 pm PST/PDT). For after-hours system down emergencies, customers with a valid ticket number may leave a voicemail in the support voicemail mailbox, which will be dispatched to an on-call technician. Please refer to our response times below.

• Scope Of Service

  The following services are generally included as part of the Agreement. Please see the section below outlining services and issues specifically excluded from this Agreement. Items outside of this scope of service may be provided at Fonality’s discretion by Fonality or other third party resources as consultation services at prevailing hourly rates. Fonality Support is provided on a best commercial effort basis via telephone, electronic mail, or web based utilities only.

• System Installation and Set-up

  • Each PBXtra unit ships with an install guide. You can also browse to our install guide at: http://fonality.com/install
  • All customers are encouraged to take advantage of up to one hour of Installation Support by Appointment with a Fonality technician within the first 30 calendar days subsequent to receiving their PBXtra system (or 35 days from the Fonality ship date, whichever comes first).
  • Fonality will work with supported customers who are experiencing installation difficulties, provided the customer obtains a valid ticket number as described above. Fonality will use its best commercial efforts to bring the customer’s PBXtra system into full working order.

  System Configuration

  • a. Configuration of IP phones and system interoperability for products purchased from Fonality.
  • b. Information and suitable documentation for addition/change/removal of extensions from the system.
  • c. Basic instructions for initial customer setup, or one-time reconfiguration of existing equipment, for remote telecommuter applications.
  • d. Support for the maintenance of system and phone dial plan configuration for proper interoperability with local phone service dial plans.
  • e. IP phone firmware upgrade instructions. Firmware upgrades may be performed by Fonality remotely when, in the opinion of Fonality Technical Support, it is appropriate to solve basic interoperability problems (additional fees may apply).
  • f. Assistance in troubleshooting problems with IP phones and associated configuration.
  • g. Remote re-configuration of phones (when possible) to address basic function concerns (additional fees may apply).
  • h. Configuration for the correct Date/Time display on phones that have internal clocks.
  • i. Adjustment of signaling to be compatible with loopstart, groundstart, or kewlstart signaling on analog line ports in accordance with the specifications provided to Customer from the local telephone company or other carrier / service provider.

  Reliability/Performance Troubleshooting

  • Identification and commercially reasonable efforts to correct the occurrence of the following:
    • Echo and/or degraded audio quality.
    • Slow system response.
    • System availability problems.

  Remote System Monitoring and Troubleshooting

  • Fonality will remotely monitor the system’s ability to place calls on a regular basis. This is an automated process that alerts Fonality of most failures at the customer location.
  • Fonality will investigate failures received from this automated system, using our private VPN facility into the PBXtra system or other diagnostic tools, and will coordinate resolution with customer when appropriate.

  General Technical Support Issues and Guidance

  • Guidance on configurations or applications of the PBXtra product for solutions the product was designed to address.
  • Suggestions for maximum performance, flexibility, and security as per standard Fonality PBXtra installation, and suited to customer requirements if possible.

  Hardware Troubleshooting and RMA

  • Except as outlined in Section 6b below, Fonality will coordinate product replacement of all Fonality supplied equipment under the terms of the manufacturer’s warranty.
  • Some third-party provided hardware (including products supplied by Dell and Hewlett-Packard among others) is covered by manufacturer’s warranty. The customer is the owner of this warranty, and therefore any hardware defects in these products will be coordinated directly between the customer and the respective manufacturer. Fonality will provide support during this process to the best of its abilities, and using best commercial efforts.

  Specific Exclusions

  Fonality support services do not include the following:
  • Manual customization of the system software or system configurations. All configuration changes must be made via the Fonality administrative web interface.
  • Customization of IP Phone configurations or functionality (button programming, logos, etc).
  • Application of the system for any purpose that it was not designed for or intended to address.
  • Software Phone or “Softphone” configuration or troubleshooting for softphones not provided through Fonality.
  • Configuration or troubleshooting for any IP or Analog phone not provided by Fonality, or configured remotely by Fonality, as part of the original system purchase.
  • Configuration or troubleshooting of customer supplied equipment, including, but not limited to: channel banks, switches, firewalls or routers.
  • Troubleshooting of remote telecommuter configurations that use unsupported networking hardware, firewalls, or connectivity equipment (hotel based shared dsl or internet connections, low bandwidth dsl-modems, shared cable-tv or satellite based internet connections).
  • Troubleshooting of unsupported network hardware or firewalls, or configurations that deviate from the supported examples provided by Fonality.
  • Troubleshooting or resolution of issues related to Internet access quality, bandwidth, or other issues related to Customer’s internet service providers.
  • Troubleshooting or resolution of issues related to local telephone service configuration or termination, and associated customer premise wiring and data / network cabling.

  Grounds For Contract Termination By Fonality

  In addition to any material breach of the terms and conditions of this Agreement, Fonality reserves the right to terminate the contract on the following grounds;

  • If the customer makes modifications to the system that compromises Fonality’s ability to support the system.
  • If the customer uses tools, commands or other methods of system configuration not specifically provided by Fonality and as directed by Fonality Technical Support.
  • If the VPN connection to the Fonality web system is closed down.
  • If the customer makes changes to any software included with the system, including, but not limited to altering the versions of Linux, Asterisk, Apache, Perl or any other supporting libraries or packages.
  • If the customer has intentionally attempted to add devices to the system without using the PBXtra admin web interface.
  • Modification of the ssh configuration of the PBXtra system. RSA key files and authorization rules must remain unchanged.
  • Addition of additional kernel modules or alternations to the operating system.
  • Installation of other custom applications, third-party products, or utilities upon the Fonality supported Hardware for any reason unless explicitly directed to do so by Fonality Technical Support.
  • At Fonality’s discretion, if the customer or their representative(s) act in an abusive or otherwise un-businesslike manner, or if the customer’s technical environment is considered otherwise unsupportive.

  Response Time

  Fonality will use all reasonable commercial efforts to respond to support inquiries, under normal business conditions, in accordance with the response time chart below. Severity will be assigned in good faith by the Fonality support team.

   

  Response times apply between 8AM and 5PM Pacific Time, Monday through Friday. Emergency support is available during other times only for critical, system-down issues. Response times apply within published Fonality Business Hours for all non-critical issues. Response times for critical issues outside of published business hours only apply to emergency hotline calls.

   

  “Response” is defined as acknowledgement of the support request, either via email or telephone, assignment of the request to an appropriate resource and, in the case of after-hours Critical Issues, provision of an expected timeframe for further communication. Customers must obtain a valid ticket number through email, web, or from a Fonality customer service agent.

   

  Severity	Description	Response Time
  Critical	Business totally unable to function, multiple employees impacted.	1 Hour
  Serious	Single employee unable to function, serious impact to business.	2 Hours
  Normal	All installation concerns, Problems that hinder productivity, adverse impact to business.	4 Hours
  Low	Questions or concerns that are an inconvenience or do not adversely impact Customer’s ability to conduct business.	24 Hours

  Terms and Conditions

  • Limited Warranty. FONALITY shall use commercially reasonable efforts under the circumstances to remedy any trouble, delays, interruptions, omissions, mistakes, accidents or errors in the Services and restore such Services to comply with the terms hereof. All warranties for hardware are supplied by the hardware manufacturer. FONALITY MAKES NO WARRANTY WITH RESPECT TO THE SERVICES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT OF SHALL FONALITY BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER.
  • Force Majeure. Neither Party shall have any claim or right against the other Party for any failure of performance due to causes beyond its control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over Service Provider or of any department, agency, commission, bureau, corporation, or other instrumentality of any federal, state, or local government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots; wars; fiber-cuts or strikes, lock-outs, work stoppages, or other labor difficulties.
  • Confidentiality. Customer understands and agrees that this Agreement, the terms and conditions hereof, all documents referenced herein (including invoices to Customer for Services provided hereunder) and any intellectual property (including passwords) delivered hereunder are confidential as between Customer and FONALITY and shall not be disclosed by Customer to any party other than the directors, officers, and employees of Customer or agents of Customer who specifically agree to non-disclosure of the terms and conditions hereof. Customer further agrees that any Customer generated press release, advertisement or publication regarding this Agreement, Services provided hereunder or in which FONALITY mentioned, will be submitted to FONALITY for its written approval prior to publication. It is agreed that a violation of the provisions of this Confidentiality provision will cause irreparable harm and injury to the non-violating Party and that Party shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to injunctive relief without the necessity of proving actual damages. Violation by Customer of this provision shall also entitle FONALITY, at its option, to discontinue Services to Customer.

  Term, Automatic Renewal and Payments.

  • The term of this Agreement is one year, beginning from the date your system is provisioned by Fonality, or other pro-rated term as separately agreed upon and identified in your invoice. This term shall be subject to automatic renewal periods, each one (1) year in duration, unless (a) a notice of an intent not to renew the Agreement is provided by either party more than thirty (30) days prior to the expiration of the then-current term; or (b) this Agreement is terminated for cause as described in Section 5.
  • An Invoice for payment for renewal of this Agreement will be sent to the email address on file for the account within 30 days of such renewal. Unless otherwise instructed by the Customer, Fonality will charge the customer’s credit card on file for the amount of such renewal. If no credit card is on file with us, the invoiced amount will become due upon receipt.

  Term, Automatic Renewal and Payments.

  Access Protection. Customer is responsible for protecting all account passwords and for any use, authorized or unauthorized, made of Customer’s account. Customer agrees to comply with the rules appropriate to any network to which Customer may gain access via the services of FONALITY. Customer acknowledges the risks associated with transmitting or making available any proprietary, confidential, or otherwise valuable information that Customer desires to keep confidential over any part of the Internet without encryption, nor reside without firewall protection on computers connected to the Internet.

  Remedies for Breach:

  • By Fonality: If Fonality shall be in material breach of this Agreement, Buyer may cancel the undelivered portion of purchase orders upon 30 days written notice unless Fonality cures such breach with such notice period. Any money paid in advance by Buyer to Fonality for goods not shipped or services not rendered will be promptly reimbursed. The foregoing shall be the exclusive remedy of Buyer for any Fonality breach of this Agreement.
  • By Buyer: If Buyer shall be in material breach of this Agreement and fails to cure said breach within 30 days of written notice thereof from Fonality, Fonality shall thereupon have the right without further notice to (1) bill and declare due and payable the aggregate purchase price for all undelivered products under this Agreement, (2) defer shipment hereunder until such default, breach or repudiation is removed, and/or (3) cancel the undelivered portion of this Agreement in whole or in part, with Buyer remaining liable for damages. Further, if Buyer fails to pay any amount hereunder as it becomes due or wrongfully rejects goods hereunder, in addition to any other remedies it may have in law or equity or hereunder, Fonality shall have the right to recover, in addition to the purchase price of such goods, all costs incurred by Fonality to collect the same.
  • Delayed Enforcement: No delay or omission to exercise any right, power, or remedy upon a breach or default under this Agreement shall impair any such right, power, or remedy of the non-defaulting party or be construed as a waiver of any such breach or default.

  Notices: Any notice required or permitted to be sent under this Agreement shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties set forth in this order. Notice so sent will be deemed effective three days following deposit in the mail, proper postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.

   

  Entire Agreement: This Agreement contains the entire agreement between Buyer and Fonality and supersedes any prior or contemporaneous oral or written agreements or communications between them relating to the subject matter hereof. No printed terms in any document of Buyer shall apply to the products delivered under this Agreement nor shall they be binding on Fonality. In the event that any provisions in this Agreement, for any reason, shall be held void or unenforceable, the remaining provisions shall remain in full force and effect and shall control.

   

  Governing Law: This Agreement and all orders hereunder shall be governed by and construed under the laws of the State of California, and shall be subject to the exclusive jurisdiction of the courts in Los Angeles County, California. In any action brought to enforce this agreement, the prevailing party shall be entitled to also recover the cost of enforcement, including attorney fees related thereto.