XFLASH INTERNET CONNECTIVITY SERVICE TERMS AND CONDITIONS
1. CONTRACT DOCUMENTS
a. The following documents shall, by this reference, form integral parts of the agreement between XFLASH and the Customer for the provision by XFLASH of the XFLASH Internet Connectivity Services (the “Service”):
(1) Application with Customer’s written conforme, which contains the commercial terms of the Contract (“Application Form”); and
(2) This XFLASH Enterprise Broadband Service Terms and Conditions (“Terms and Conditions”), herein collectively referred to as the “Contract”.
b. In case of any conflict in the interpretation of the provisions of the aforementioned documents, these Terms and Conditions shall prevail.
2. CUSTOMER RESPONSIBILITIES. The Customer shall have the following responsibilities for the proper installation, operation and maintenance of the Service:
a. Provide access and clearance to allow duly authorized XFLASH’s personnel to enter and leave the Customer’s premises at reasonable hours or at such frequency as may be necessary, and subject to prior notice to the Customer, for the purpose of conducting site surveys, installation, inspection and maintenance, and/or removal of its equipment and facilities used in connection with the Service. In the event that the Customer’s premise is located inside a building, the Customer shall coordinate with the building administrator/property management office of the building and secure the necessary permits granting XFLASH egress and ingress to the building twenty-four (24) hours a day, seven (7) days a week for maintenance, test and repair, and installation activities, subject to compliance by XFLASH with reasonable building security regulations.
b. Provide the required Uninterrupted Power Source (“UPS”) in each location to ensure the uninterrupted power supply necessary for the continuous operation of the Service. The Customer shall provide electric power from a commercial source connected to the standby generator required for the efficient operation of XFLASH-provided equipment.
c. Provide the interface cables between the XFLASH equipment and the Customer-provided equipment.
d. Ensure that no connection, disconnection, movement, and/or alteration of any and all equipment and facilities furnished by XFLASH are conducted by parties other than the duly authorized XFLASH personnel.
e. Provide a secure, clean and a well-ventilated and air-conditioned room suitable for the proper and continuous operation of all equipment used in the provision of the Service.
f. Provide due care to all XFLASH-installed equipment installed in its offices (the “Customer Premises Equipment” or “CPE”). The Customer shall be solely liable for any loss or damage to such Equipment upon completion of installation thereof by XFLASH.
g. Ensure that it and its representatives shall not assign, transfer, sublease, charge or otherwise part with the CPE; neither shall the Customer permit any extension of the Service whether or not said extension may cause damage or interference to the Service, without prior written consent and approval of XFLASH.
h. Provide its own additional protection to its system against external attacks/hacks. In the event of such occurrence, it is the Customer’s responsibility to investigate the matter with the proper assistance of XFLASH.
3. APPLICABLE PRICES AND TAXES
a. Prices quoted are based on initial network design/configuration presented, and may be subject to change depending on the final network configuration determined during the actual survey. XFLASH shall inform the Customer of any change in the network configuration and seek prior approval for any change in price from the original Application Form as a result of the difference between the network design/configuration presented and the actual configuration. Should the Customer not approve the change in initial network design/configuration and price, XFLASH and the Customer shall negotiate to achieve a mutually acceptable solution.
b. Unless otherwise indicated, the prices quoted in the Application Form are exclusive of the 12% Value Added Tax (“VAT”).
C . In addition, the price shall be subject to fulfillment by the Customer of the special conditions (if any are specified in the Application Form) pursuant to which XFLASH offered such price. Non-fulfillment by the Customer of such special conditions shall entitle XFLASH to amend the price of the Service.
4. INSTALLATION AND LEAD-TIMES. Installation and activation of the Service shall be based on the mutually agreed Ready For Service (“RFS”) date as indicated in the Application Form. The projected installation and activation lead time is determined on the basis of the location of the Customer’s site (whether the site is within or outside XFLASH’s franchise area) and whether the provision of the Service in the Customer’s site requires the construction and installation of additional or new facilities.
5. DELIVERY OF EQUIPMENT; ACCEPTANCE OF THE SERVICE
a. Upon delivery of the CPE to the Customer’s designated site, the Customer shall sign an Endorsement of Property and Service (“EPS”) form to acknowledge receipt of the CPE.
b. Upon activation of the Service and conclusion of XFLASH’s testing thereof based on XFLASH’s parameters, the Customer shall cause its duly authorized or designated representative(s) to sign XFLASH’s Acceptance of Service Form (“ASF”). Upon Signing of ASF, XFLASH shall assume that the Service is working, deemed accepted and billable. XFLASH shall therefore take this as commitment on the Customer’s part to pay/settle necessary billing components/charges for the Service as set forth in the Application Form.
c. XFLASH’s responsibility shall strictly relate to the Service as described in the Application Form only. XFLASH-installed-equipment/s including the wires shall be the property and responsibility of the customer and loss, damage, theft and the like shall be on the account of the customer.
6. PAYMENT TERMS
a. Billing shall commence one (1) day after activation of the Service. Delivery and turn-over of XFLASH Add-ons & Freebies (if any) shall not hinder the start of the Effective Billing Date of the Fixed Bundle Service.
b. XFLASH has the option to provide the bill for the Service using any media available such as, but not limited to, electronic mail, or printed bill sent through courier or mail.
c. Payment must be remitted to XFLASH within the stipulated due date as indicated in the bill, or through our House-to-House collection scheme as the case maybe allowed by XFLASH.
7. CONTRACT PERIOD
a. The Contract term shall be based on the signed application form from the date of activation of the Service (“Contract Term”).
b. If XFLASH does not receive any written termination advice from the Customer sixty (60) days before the end of Contract Term, the Contract Term shall be deemed automatically renewed for an indefinite period unless otherwise the Customer notifies XFLASH.
8. CANCELLATION OF ORDER.
IN CASE OF CANCELLATION OF ORDER:
a. After installation but prior to acceptance of the Service, the Customer shall pay 100% of the total Contract value for the CPE that may be provided by XFLASH PLUS P3500.00 to compensate XFLASH for the costs incurred by it in the installation works.
b. After installation and Service has been accepted, the Customer shall pay the standard Pre-termination charges as stated in Section 9.
9. PRE-TERMINATION OF CONTRACT
a. In case of pre-termination of Contract without fault on the part of XFLASH:
(1) The Customer is required to submit a written notice at least sixty (60) calendar days prior to the date of circuit termination stating the reason/s for such request.
(2) Pre-termination charge equivalent to 100% of the unrealized Monthly Recurring Charges (MRC) for the unexpired Contract term plus other charges will be imposed.
b. Upgrading/Downgrading of Service within the Contract term
(1) Upgrading and downgrading of services shall be allowed subject to existing fees.
10. DISCONTINUANCE OF SERVICE
a. XFLASH has the option to discontinue the Service because of the Customer’s failure to pay the fees due within the period provided for in the relevant bill. Subject to prior written notice to the Customer and provided that the Customer continues to fail to pay the required amount despite such notice, XFLASH has the option to discontinue the Service for non-payment of the overdue account, as well as other accounts involving other existing XFLASH services which, based on XFLASH records, are maintained or owned by, or kept under the same Customer’s name. Aside from the outstanding charges of the Customer due to XFLASH, applicable pre-termination charges shall be imposed, subject to Section 9 hereof.
b. The basis for disconnection of Service will be the stipulated due date in the billing statement.
c. The Service is intended for the Customer’s official business use only and not intended for national/international resale of voice and/or data. The circuits of the Service will not be used for any Voice Callback, or any form of Public Switched Telephone Network (“PSTN”) by-pass operation similar to that of an International Simple Resale (“ISR”) (collectively, the “Unauthorized Use/s”).
d. XFLASH reserves the unilateral right to immediately terminate/cancel the Service at any time and without prior notice should XFLASH find any Unauthorized Use or find that the Service or any of the circuits provided therefor are utilized other than for their specified purpose and/or in any instance that XFLASH finds that any of its materials, wires, equipment, and devices, resources and effects are actually being used or have been used by the Customer but without, however, securing the prior written consent of XFLASH. Finally, XFLASH reserves the right to collect monetary compensation due to revenue loss occasioned by such unauthorized use and/or operations or to collect from the Customer liquidated damages in the total amount of One Million Pesos (Php1,000,000.00), whichever is higher.
e. In addition to having the Service temporarily/permanently disconnected, the Customer shall likewise be liable to pay pre-termination charges computed in accordance with Section 9.a.
11. FORCE MAJEURE
a. XFLASH shall not have any liability whatsoever or be deemed to be in default for any delay or failure in the performance of its obligations under the Contract resulting from acts beyond its control, including without limitation, international system cable faults; acts of God, acts of nature, such as, but not limited to, typhoon, flood, landslide, earthquake, tsunami, lightning, a natural disaster of overwhelming proportions; acts or regulations of any governmental or supranational authority; war; national emergency; accident; fire; riot; strikes, lock-outs, industrial disputes (whether or not involving XFLASH’s employees); epidemic or pandemic.
b. In the event of disconnection of Service arising from force majeure, XFLASH shall endeavor to restore the Service as soon as possible, subject to its discretion in the allocation of available resources. 12. Indemnification The Customer agrees to defend, indemnify and hold XFLASH, its officers and employees, free and harmless from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from:
(a) any violation of applicable laws, regulations or these Terms and Conditions by the Customer (or any party using the Customer’s account, with or without the Customer’s permission, to access the Service);
(b) the abuse of the Service or the placement or transmission of any message, information, software or other materials using the Service by the Customer (or any party using the Customer’s account, with or without the Customer’s permission, to access the Service);
(c) negligent acts, errors, or omissions by the Customer’s (or any party using the Customer’s account, with or without the Customer’s permission, to access the Service).
