1. PAYMENT TERMS: Customer agrees that the purchase price (set forth in the Sales Agreement) for Equipment shall be paid by payment of the installment amounts on the dates set forth. All installment payments shall be made without claim or set-off or reduction for any purpose whatsoever. In the event that any installment is not paid on the date due, the remaining unpaid amount will be subject to a monthly service charge at the rate of one and one half (1-1/2%) percent per month from the due date of the last unpaid installment amount.
  2. RISK OF LOSS: AmeriTel shall bear all risk of loss or damage to the Equipment while the Equipment is in transit to Customer. Upon delivery of the Equipment to Customer’s Premises, all risk of loss and responsibility for damage shall pass to the Customer, regardless of non-passage of title to the Equipment to Customer.
  3. SECURITY INTEREST/TITLE: Customer hereby grants to AmeriTel and AmeriTel hereby reserves, a security interest in the Equipment, together with any accessories, additions, substitutions and replacement (and any proceeds thereof if the Equipment is sold), in the amount of purchase price of the Equipment. Customer agrees to execute any documents, which may be necessary or appropriate to perfect AmeriTel’s security interest in the Equipment. Customer hereby appoints AmeriTel as Customer’s attorney-in-fact to execute on behalf of Customer any financing statement or other documents required by AmeriTel to perfect or enforce its security interest in the event of a default by Customer of any of its obligations to AmeriTel. AmeriTel shall have the right of a secured party under the Uniform Commercial Code, including, but not limited to, the right to retake possession of the equipment upon any default by Customer. The security interest will be satisfied, and Customer shall acquire title to the Equipment, upon payment to AmeriTel of the full amount of the purchase price and all applicable taxes.
  4. RIGHT TO ACT AS AGENT AND SITE PREPARATION: Customer agrees to provide “agency letter” authorizing AmeriTel to act as agent for Customer in ordering necessary services from the telephone utility company. Customer agrees to provide backboard and conduit and other site preparation as requested by AmeriTel prior to delivery and installation of Equipment. Customer will provide adequate space for the Equipment and insure that light and separate AC power source are available. Customer agrees that environmental conditions will be maintained in accordance with manufacturer recommended equipment requirements.
  5. CUTOVER DATE AND ACCEPTANCE: For the purpose of this Agreement, “Cutover and Acceptance Date” is herein defined as the date upon which the Equipment is installed at the Premises, and is capable of providing substantially the basic service for which the Equipment is intended. The “Estimated Cutover Date” is only an approximate date. AMERITEL SHALL NOT BE LIABLE FOR DAMAGES, SPECIAL CONSEQUENCES OR OTHERWISE, FOR DELAYS IN CUTOVER AND ACCEPTANCE DATE OR IN INSTALLATION OR DELIVERY OF THE EQUIPMENT. AMERITEL SHALL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE FOR CAUSES BEYOND ITS REASONABLE CONTROL OR FOR UNFORESEEN CIRCUMSTANCES IN THE INSTALLATION OF THE EQUIPMENT. AmeriTel will notify Customer concerning any telephone company related problems that will affect the completion of the equipment installation. Customer agrees not to withhold any scheduled payments due to these problems. Unless within seventy-two (72) hours after Cutover and Acceptance Date Customer gives written notice to AmeriTel specifying any defects in installation or other proper objection to the Equipment, Customer agrees that it shall confirm the Cutover and Acceptance Date by executing a Delivery and Acceptance Certificate. It shall be conclusively presumed that the execution by the Customer of the Delivery and Acceptance Certificate attached to this Agreement confirms the Customer’s inspection, satisfaction and unqualified acceptance of the Equipment.
  6. SOFTWARE/HARDWARE/NETWORK INTERFACE: One or more of the proposed applications incorporated within the proposed system provides for features and/or functionality which either exceeds the scope of the manufacturers stated capabilities and/or must rely on external equipment and/or software and/or network services provided by others, as such, the stated price and related warranty for this system includes the materials detailed herein and the labor necessary to provide functionality up to and including the output terminals of the system cabinet and backboard. In the event additional materials and/or labor are required to interface the proposed system to accomplish the desired functionality with equipment and/or services provided by others, same shall be billed at AmeriTel’s prevailing rates.
    1. RE-USE OF CUSTOMER’S EXISTING CABLE: In the event that the quotation is based on re-using the existing cable at the customer location and we find that the cable is either defective or not available, the customer agrees that in those instances they would be billed for installation of additional cables. In the event that an existing cable goes bad, the customer again, would be responsible for any labor or material necessary to correct the condition.
  7. TELEPHONE NETWORK PROBLEMS: AmeriTel will notify Customer concerning any Telephone Company related problems that will affect the completion of the telephone system installation. Customer agrees not to withhold any scheduled payments due to these problems.
  8. WARRANTY & MAINTENANCE: For a period of one (1) year after the Cutover and Acceptance Date, AmeriTel warrants the Equipment Hardware against defective parts and workmanship software and software programming for a period of 30 (thirty) days. Upon notification of a defect, AmeriTel shall have the option to repair or replace any defective part, and such services by AmeriTel shall be Customer’s sole and exclusive remedy. All expenses incidental to repair, maintenance or replacement under warranty or maintenance, including all labor and material, shall be borne by AmeriTel except for the restoring of Customer’s data to fixed disk drives/hard disk drives, which shall be billed at the prevailing rate. Replacement parts may be new or reconditioned at AmeriTel’s option and all replaced parts will become the property of AmeriTel. Parking fees are not included as part of the installation or warranty. In the event the Customer does not validate parking, the Customer shall be billed for same with a copy of the expense receipt. Regular maintenance service (non-emergency) during the warranty period will be provided without charge to Customer during normal business hours (8:00 a.m. to 5:00 p.m., Monday through Friday, except holidays). Emergency service during the warranty period (due to the Equipment’s inability to accomplish either incoming, outgoing or internal calls) will be provided without charge to the Customer seven days a week and twenty-four hours a day. After the expiration of the warranty period, AmeriTel may make available to Customer maintenance services in accordance with AmeriTel’s then standard practices and price schedule. The manual load of the system software program in the event Customer does not have a current program back up, is excluded. AMERITEL DOES NOT MAKE ANY WARRANTIES IN RESPECT TO THE EQUIPMENT, EITHER EXPRESS OR IMPLIED, INCLUDING NO IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IF ANY LABOR, REPAIR OR PARTS REPLACEMENT IS REQUIRED BECAUSE OF ACCIDENT, NEGLIGENCE, MISUSE, THEFT, VANDALISM, FIRE, WATER OR OTHER PERIL, OR BECAUSE OF CONDITIONS OUTSIDE OF SPECIFICATIONS INCLUDING, BUT NOT LIMITED TO, UTILITY LINES, ELECTRICAL POWER, INCLUDING POWER FAILURE, SPIKES, OR BROWN OUTS, TEMPERATURE, HUMIDITY OR DUST, OR BY MOVING, REPAIR, RELOCATION OR ALTERATION NOT PERFORMED BY AMERITEL OR BY ANY CAUSE OTHER THAN NORMAL USE, THE WARRANTY AND MAINTENANCE OBLIGATIONS PROVIDED HEREIN SHALL NOT APPLY. HOWEVER, AMERITEL WILL MAKE MAINTENANCE SERVICES AVAILABLE IN ACCORDANCE WITH ITS THEN STANDARD PRACTICES AND PRICE SCHEDULES.
  9. LIMITATION OF LIABILITY: AmeriTel shall not be liable for any special, incidental or consequential damages or for loss, damage or expense directly or indirectly arising from customer’s use of or inability to use the equipment either separately or in combination with other equipment, or for personal injury or loss or destruction of other property, or from toll fraud or loss of customer’s data, or from any other cause.
  10. DEFAULT: If Customer shall fail to pay any amount owing to AmeriTel hereunder when due, or default in any other obligation, then, in addition to all other remedies available to AmeriTel at law or equity or under this Agreement, and not in limitation thereof, AmeriTel may, until said sum is paid in full, declare the entire remaining amount due and payable after five (5) days prior notice, disconnect the Equipment or otherwise render it inoperable, cease maintaining or installing the Equipment, or enter Customer’s premises without liability for trespass or damages, with or without notice, and take possession of and remove the Equipment. Should AmeriTel institute legal action to enforce its rights hereunder, the prevailing party in such action shall be entitled to recover reasonable attorney’s fees and costs in the amount allowed by the court.
  11. INDEMNIFICATION: Customer shall indemnify AmeriTel against and hold AmeriTel harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney’s fees, claimed by any person, organization, association, or otherwise arising out of or relating to, the Equipment or its use, possession, operation and/or condition.
  12. ASSIGNMENT/SUBCONTRACTING: This Agreement may be assigned by AmeriTel in whole or in part and AmeriTel may freely subcontract any or all of the work hereunder. The Customer may not assign this Agreement, in whole or in part, without obtaining the prior written consent of AmeriTel, which consent shall not unreasonably be withheld, and any such attempted assignment shall be invalid. Subject to the foregoing, this Agreement shall inure to and be binding upon the parties and their successors and assigns.
  13. CONSULTANT: In the event that Customer is represented by a consultant, AmeriTel may require that the consultant provide completed key sheets and floor plans and arrange for all necessary services with the local telephone utility and provide customer training and directories.
  14. MISCELLANEOUS: Titles to the paragraphs of the Agreement are solely for the convenience of the parties and do not explain, modify or interpret the provisions herein. If more than one Customer is named in this Agreement, the liability of each shall be joint and several. This Agreement shall not be amended or altered except in writing signed by authorized representatives of all parties hereto. This Agreement shall be governed by and enforced in accordance with the Laws of California. No delay or omission to exercise any rights, power or remedy available to AmeriTel upon any breach or default of Customer under this Agreement shall impair any such right, power or remedy of AmeriTel, nor shall it be construed to be a waiver of any subsequent breach or default or acquiescence therein. Any waiver, consent or approval of any kind of any breach or default, or any waiver of any provision of this Agreement will only be effective if in writing and shall be effective only to the extent set forth in the writing. Customer hereby agrees, acknowledges, warrants, and covenants that it understands AmeriTel has invested substantial time and money in training its technical personnel, and that customer became aware of the technical personnel as a result of a contractual relationship with AmeriTel. Such is considered to be a trade secret, which are valuable to AmeriTel in the operation of its business; and, that the disclosure of the trade secrets to the Customer or to AmeriTel’s employees or the Customer for their or its own benefit could cause serious, substantial and irreparable harm to AmeriTel’s business and/or unfair competition; Customer understands and acknowledges that AmeriTel has expended substantial amounts of time, energy, and money to develop its trade secrets; and, that the said trade secrets cannot be easily acquired by others. Therefore, in order to protect and safeguard AmeriTel’s trade secrets and investment, Customer agrees, for a period of one (1) year after the date of any former employee’s termination of employment with AmeriTel, not to solicit the employment, or employ any, former employee of AmeriTel, or contract, subcontract or otherwise obtain the service or skills of any former employee of AmeriTel, regardless of whether the former employee had any direct or indirect contact with the Customer during his or her employment by AmeriTel.
  15. FRAUD. AmeriTel makes no representations, claims, guarantees express or implied that it can maintain this equipment in a manner so as to make it immune from fraudulent intrusions into and/or unauthorized use of the system (including its interconnection to a long distance network). Customer is hereby warned that fraudulent use of the system, including but not limited to DISA, Auto-Attendant, Voice Mail, RMATs, 800 and 900 services, is possible. Customer hereby assumes all risk of such fraudulent or unauthorized use or intrusion. AmeriTel agrees to assist Customer with recommendations that should help minimize the risk, if followed, but AmeriTel cannot insure that such fraud or unauthorized access will not occur.
  16. INVASION OF PRIVACY DISCLAIMER WARNING. AmeriTel hereby disclaims any expressed or implied warranty that Customers equipment is technically immune from, or prevents unlawful and/or unauthorized utilization that may result in invasion of ones right to privacy. AmeriTel hereby warns Customer that such is possible, and Customer agrees to warn its employees of such. Notwithstanding any other statements made or implied herein, The Customer accepts and acknowledges his responsibility for coordinating the efforts of building trades, employees, and other activities on his premises to insure that AmeriTel may deliver, safely store, install, test, and repair the equipment described herein without delay or hindrance.