Freevoice Telecom LLC. Terms and Conditions

Unless otherwise specified by prior written agreement of the parties, any orders entered into by Freevoice Telecom LLC., LLC. (“Freevoice Telecom LLC.”), shall be (a) a purchase of the equipment, components or services, and (b) for any software not otherwise licensed under the GNU General Public License (GPL), as described in Section 7, a non-exclusive right to use the software provided or incorporated solely in connection with the product or service with which it was delivered.  All purchases (or licenses) are subject to the following terms and conditions:

1. Orders:   Orders are not binding until accepted by Freevoice Telecom LLC., in its sole discretion.  Except in the case of a breach, as provided in Section 8, once an order is accepted by Freevoice Telecom LLC., it may be changed or cancelled only with the written consent of the parties.

2. Payments:  All prices are F.O.B. Freevoice Telecom LLC.’s facility, Orange County, California, payable 100% of the aggregate price before shipment unless otherwise agreed in writing by an authorized Freevoice Telecom LLC. representative.  Prices are exclusive of any freight, taxes (sales, use, personal property tax, etc.), duties or imposts, all of which are the responsibility of Buyer.  Buyer agrees to pay all amounts due upon receipt of invoice as provided above; plus a service charge of 1-1/2% per month (or portion thereof), or such lesser maximum allowable by law, on all balances not paid within 10 days of the due date.  Customer waives the right to process charge backs on their credit card for Freevoice Telecom LLC. purchases. Notwithstanding any partial payment by Buyer, title to goods shipped shall remain with Freevoice Telecom LLC. until the entire price has been paid; and, if Buyer defaults in the payment of any charges hereunder when due, Freevoice Telecom LLC. may remove and repossess any and all such goods delivered, in addition to any other legal remedies it may have.

3. Delivery:  All shipments shall be F.O.B. Freevoice Telecom LLC., Orange County, California, and Buyer shall bear the cost of delivery and handling.  Risk of loss shall transfer to Buyer upon delivery of goods to the carrier.  Freevoice Telecom LLC. will make every reasonable effort to complete shipment on or before the dates set forth in its written quotation or the face of this order, as applicable; however, Freevoice Telecom LLC. shall not be liable for delay in performance or inability to perform occasioned by acts beyond its reasonable control, including acts of God, fire, flood, strike, war, embargo, government regulation or materials shortage.  If performance is delayed by such an event, Freevoice Telecom LLC. shall notify Buyer, and time of performance shall be extended for the period of such contingency.

1. Pre-Test:  Before any Freevoice Telecom LLC. products are boxed and shipped to customer sites, all products are provisioned, tested, and verified as “working” by Freevoice Telecom LLC..   
2. Acceptance Period:  During the 21-day period following transfer of title, or such other period specifically agreed in writing in advance by the parties (the “Acceptance Period”), Buyer shall inspect all products, including the performance of such products in their network environment, after which time all equipment, components and/or software, as applicable, are deemed accepted. All shipments shall be deemed accepted by Buyer, and Buyer waives the right of rejection, unless Freevoice Telecom LLC. receives a written notice of rejection during the Acceptance Period,
3. Installation Support: During the Acceptance Period, Freevoice Telecom LLC. will provide remote installation and configuration support to Buyer.  This support is limited to telephone and email support necessary to remotely get the system performing to specification at the customer’s location, including the identification, but not resolution, of changes required in the customer’s network or communications services. 
4. Buyer Participation:  Freevoice Telecom LLC. will require participation from the Buyer to resolve any installation, configuration or performance issues during the Acceptance Period. To enable Freevoice Telecom LLC. to correct persistent ‘bugs’ effectively, the customer must sufficiently communicate or be able to replicate the “bug” for Freevoice Telecom LLC..  No remedy or right of return will be granted to Buyer without such participation.
5. Return Policy:  If, during the Acceptance Period, Buyer has identified and communicated to Freevoice Telecom LLC. an irresolvable performance issue with the products purchased from Freevoice Telecom LLC., and has worked in good faith with Freevoice Telecom LLC. to resolve such issues, Buyer may notify Freevoice Telecom LLC. in writing of an intent to return the products.  Notification must be received by Freevoice Telecom LLC. during the Acceptance Period, and must be approved by an appropriate Freevoice Telecom LLC. representative in writing.
6. Return Procedure: If all of the conditions in Section 4e (“Return Policy”) have been met,  Buyer will be issued an Return Material Authorization Number (RMA Number).   No return of goods will be accepted by Freevoice Telecom LLC. without an RMA Number obtained from Freevoice Telecom LLC..  All returned goods must be shipped prepaid, clearly marked with an RMA number, and be accompanied by a complete description of the nature of the defect. To receive a refund, all items must be in “like new” condition and customer must ship back all materials including: boxes, wires, manuals, shipping materials, etc.  Items that are not returned in “like new” condition will not be refunded, and will be returned to the customer at the customer’s expense. All returns will be subject to a 15% “reconfiguration/restocking” fee.
7. No Warranty: Unless provided through a seperately purchased maintenance support or warranty agreement. No warranty is provided by Freevoice Telecom LLC. after the acceptance period. All other obligations of Freevoice Telecom LLC. to maintain, service or provide warranty repair to the equipment, components or software shall terminate at the end of the acceptance period.

5. Manufacturer’s Warranties

1. Pass-Through Warranties: Freevoice Telecom LLC. shall extend to Buyer, on a ‘pass through’ basis, any warranty provided by the manufacturer of the purchased equipment and components to the extent permissible.   Freevoice Telecom LLC. may assist Buyer with such pass-through warranty service at Freevoice Telecom LLC.’s discretion.  Freevoice Telecom LLC. may require a security deposit, pre-payment or prior return of any products or components covered under such a pass-through warranty.  Freevoice Telecom LLC. reserves the right to reject any returned products or components which it determines not to be covered under a pass-through warranty, beyond the warranty period, not purchased from Freevoice Telecom LLC. or with damage resulting from mis-use or other actions not covered under the manufacturer’s warranty.  Such products or components will be returned to the Buyer at the Buyer’s expense.
2. Separately Purchased Limited Warranty:  Certain equipment provided by Freevoice Telecom LLC. is not covered by a manufacturer’s warranty.   For this equipment, a separately purchased Warranty may be available.  For equipment covered under a separately purchased “Next-Business-Day Replacement” warranty, as specified in the original invoice (“Covered Equipment”), the following terms and conditions apply:

1. Freevoice Telecom LLC. warrants to the original purchaser or, for products purchased from a Reseller, to the original end-user that the Covered Equipment will be free from defects in materials and workmanship from the date of shipment for 1 year from the date of shipment or invoice or, if longer, the period stated on your invoice.
2. During the warranty period, Freevoice Telecom LLC. will, at its option: (1) provide replacement parts and instructions necessary to repair the product or (2) replace the product with a comparable product.  To receive any benefits under this warranty, Buyer must assist Freevoice Telecom LLC. in diagnosing issues with the Covered Equipment and follow Freevoice Telecom LLC.’s warranty processes.
3. If Freevoice Telecom LLC. determines that a replacement part or product is needed, Freevoice Telecom LLC. will ship the part and installation instructions to the Buyer within one business day of such determination.  If Buyer is located in the United States or Canada, Freevoice Telecom LLC. will pay the costs of shipping these parts or products to you via overnight air.  
4. Customers outside the United States and Canada are responsible for paying all freight charges incurred in shipping, importing/exporting and receiving replacement products and parts and for arranging and paying for the shipment of any defective part(s) back to the Freevoice Telecom LLC.. All international customers are responsible for all customs duties, VAT and other associated taxes and charges.
5. Purchasing additional products from Freevoice Telecom LLC. does not extend your warranty period. 
6. If Freevoice Telecom LLC. asks Buyer to return defective parts or products, Buyer must do so within 7 days after receipt of the replacement parts or products. Freevoice Telecom LLC. will charge Buyer for replacement parts or products if Buyer fails to do so.
7. THIS LIMITED WARRANTY COVERS NORMAL USE.  FREEVOICE TELECOM LLC. DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR DAMAGES CAUSED BY MISUSE, ABUSE, ACCIDENTS, VIRUSES, UNAUTHORIZED SERVICE OR PARTS, OR THE COMBINATION OF COVERED PRODUCTS WITH OTHER PRODUCTS.  ANY WARRANTY APPLICABLE TO THIRD-PARTY PRODUCTS IS PROVIDED BY THE ORIGINAL MANUFACTURER.

Limitation of Obligations:  THE FOREGOING WARRANTY IS IN LIEU OF, AND BUYER WAIVES, ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE, AND SETS FORTH THE EXCLUSIVE AND ENTIRE LIABILITY OF FREEVOICE TELECOM LLC. WITH RESPECT TO ANY DEFECTIVE PRODUCT OR COMPONENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL FREEVOICE TELECOM LLC. BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.  The maximum liability of Freevoice Telecom LLC. for any and all claims of any kind, including negligence, for loss or damages arising out of this Agreement, shall in no case exceed the price allocable to the item of equipment, component or software which gives rise to the claim.

6. Support:  Following successful installation, Freevoice Telecom LLC. support is only available to customers who purchase such support under separate annual software maintenance and support agreements.

7. Open Source Software:  Some software distributed by Freevoice Telecom LLC. is licensed under the GNU General Public License (GPL) (“Open Source Software”).  The terms of this license can be found at http://www.gnu.org/licenses/gpl.html.

8. Intellectual Property: 

1. For the purpose of this Section (8), the term “Freevoice Telecom LLC. Intellectual Property” shall mean all intellectual property (including software or programming) delivered hereunder, except for any Open Source software as described in section (7).  Any software distributed by Freevoice Telecom LLC. which is licensed under the GNU General Public License (GPL) is specifically excluded from this definition.
2. All Freevoice Telecom LLC. Intellectual Property is solely for use by Buyer or its customers as shipped, and may not be used as a replication master or otherwise copied without the expressed consent of Freevoice Telecom LLC..  Use of software delivered as a separate item shall be subject to a separate license agreement that Buyer shall be required to accept prior to delivery.  Buyer acknowledges that all Freevoice Telecom LLC. Intellectual Property furnished by Freevoice Telecom LLC. hereunder and the contents thereof are the proprietary property of Freevoice Telecom LLC., and Buyer has no right or interest therein except the nonexclusive right to use it in the product in which it was delivered or as otherwise provided in a written license agreement.  Buyer agrees not to directly or indirectly reproduce, decompile or provide or otherwise make available to any third party any Freevoice Telecom LLC. Intellectual Property.  Buyer shall be liable for all damages, including loss of anticipatory profits, incurred by Freevoice Telecom LLC. as a result of such unauthorized use, copy or replication. The rights granted hereunder or use of Freevoice Telecom LLC. products does not convey any rights or ownership in Freevoice Telecom LLC. patents, copyrights, trademarks, intellectual property or know-how.

9. Remedies for Breach:

1. By Freevoice Telecom LLC.:  If Freevoice Telecom LLC. shall be in material breach of this Agreement, Buyer may cancel the undelivered portion of purchase orders upon 30 days written notice unless Freevoice Telecom LLC. cures such breach with such notice period.  Any money paid in advance by Buyer to Freevoice Telecom LLC. for goods not shipped will be promptly reimbursed.  The foregoing shall be the exclusive remedy of Buyer for any Freevoice Telecom LLC. breach of this Agreement.
2. 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 Freevoice Telecom LLC., Freevoice Telecom LLC. 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, Freevoice Telecom LLC. shall have the right to recover, in addition to the purchase price of such goods, all costs incurred by Freevoice Telecom LLC. to collect the same.
3. Delayed Enforcement: No delay or omission to excercise 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.

10. 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.

11. Entire Agreement:  This Agreement contains the entire agreement between Buyer and Freevoice Telecom LLC. 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 goods or services delivered under this Agreement nor shall they be binding on Freevoice Telecom LLC..  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.

12. Governing Law:  This Agreement and all orders hereunder shall be governed by and construed under the laws of the State of California, USA and shall be subject to the exclusive jurisdiction of the courts in Orange County County, California, USA.  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.

 

Customer Signature ___________________________________   Date_____________

 

F-SIP Terms And Conditions

WHOLESALE SERVICES AGREEMENT v12277

THIS WHOLESALE SERVICES AGREMENT (“Agreement”) is entered into this day of , 2007 (the “Effective Date”), between Freevoice, LLC., a California corporation having a business address at 505 East Commonwealth Ave Fullerton, California 92832 (hereinafter referred to as “Freevoice” and/or “Enhanced Service Provider” and/or “ESP”); and _________________________ (name), a __________________(state) entity having a business address at: ________________________________________________________________________________________(address), (hereinafter referred to as “Customer”). ESP and Customer are collectively referred to herein as the “Parties”, and individually as “Party”.

WITNESSETH AND DEFINITIONS

“ESP or ESP” is in the business of providing wholesale telecommunications products and services. Customer desires to purchase from said products and services from ESP, and ESP desires to sell to the Customer, wholesale telecommunications products and services in accordance with the terms and conditions of this Agreement.

“Service” shall mean those telecommunications services described in the attached relevant Annex(es) incorporated herein by reference.

“Service Date” shall mean the date of completion of provisioning and testing of the Services; which date will be notified to the Customer by the ESP.

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is herby acknowledges, the Parties agree as follows:

1. DESCRIPTION OF SERVICES

ESP, either directly or through its affiliates or underlying carriers, shall provide the Services, and Customer shall purchase and utilize the Services per the terms and conditions of the Agreement. The Parties may, by mutual agreement, add and incorporate additional services by executing additional Annex(es) and incorporating them herein.

2. TERM

This Agreement shall commence on the Effective Date and shall continue for an initial term (“Term) of twelve (12) months from the Service Date and thereafter shall automatically renew for equivalent successive renewal terms unless terminated by either Party pursuant to this Agreement Notwithstanding the foregoing, either Party may terminate this Agreement or any Services provided there under at the end of the Term, or any renewal thereof, by providing a sixty (60 day prior written notice of termination to the other Party. The term of each specific Service shall be set forth in the attached relevant Annex(es) hereto, but in any event, it is understood and agreed that the terms of this Agreement shall at all times govern the provision of Services by ESP. Customer remains responsible for the remainder of charges, including, but not limited to, local loop charges, equipment lease or purchase charges, and/or any other charges related to Customer connection to ESP’S network.

3. OPERATIONAL MATTERS

Where applicable, the Customers shall be responsible to connect to ESP’S networks at one of ESP’S network interconnection locations, and the Customer shall be responsible to procure, at its own expense, the necessary facilities and/or equipment required to interconnect to such locations. ESP will endeavor to provide the Services on the Service Date and the Customer shall be solely responsible to coordinate the provisioning of its respective matching facility and/or equipment (where applicable) by the Service Date. The Parties shall coordinate the management of their respective system facilities, with each Party being responsible for providing and operating, at its own expense, its respective networks facilities. The Parties also shall interface on a 24 hours/7 days a week basis to assist each other with the isolations and repair of any facility faults in their respective networks. The Services is provided to Customer on an “As Is” basis. The Parties agree that notwithstanding anything contained in this Agreement to the contrary, no warranty, express or implied, is made concerning the Services or ESP’S systems, including without limitation, the implied warranties of merchantability and fitness for a particular purpose. ESP does not warrant that the functions contained in the Services or in ESP’S systems will meet customer’s requirements, or will operate in the manner desired by Customer, or that the Services and/or ESP’S systems will be error free, or free from unauthorized intrusion by any third party instigator.

4. PRICING, BILLING, CAPS, AND PORTING REQUESTS

For the Services provided pursuant to the Agreement, Customer shall pay ESP per the pricing and provisions set forth in the attached relevant Annex(es). ESP, in its sole discretion, may amend the Annex(es) from time to time and such amendments shall become effective twenty-four (24) hours after notice to Customer. ESP shall provide a weekly or monthly invoice for the Services and the invoiced amounts shall be due and payable by Customer in U.S. Dollars, in immediately available funds within the time stated in the relevant Annex(es) hereto. In no event shall ESP be liable for the fraudulent and or illegal use if the Services by the Customer or any of the Customer’s end users or subscribers, or for any amounts that Customer is unable to collect from its customers, end users, subscribers, or others. If Customer in good faith disputes any invoiced amount requested from Customer by ESP, it shall submit to ESP within fifteen (15) days following receipt of such disputed invoice, the written documentation identifying the disputed invoiced amounts, and upon mutual agreement, ESP may issue a credit against Customer’s future invoices. Failure of Customer to contest a charge within thirty (30) days of the date of the invoice will create an irrefutable presumption of the correctness of the charge, absent manifest error. Any amounts due hereunder that are not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount allowable by law, compounded daily, beginning with the day following the date on which payment was due, and continuing until paid in full. Further, ESP shall have the right to set off any amounts due hereunder which are not paid when due against any amounts owed to Customer by ESP or any of its affiliates, pursuant to any other agreement or arrangement. All Off-Net International Calls sent to ESP destinations not specified in Annex 1 for termination would be rated at one dollar ($1.00) per minute. Customer and/or Customer Subscribers may request that phone numbers be ported to the Freevoice Telecom IP Network by submitting a completed LOA (Letter of Agency) and a current bill copy from Customer’s or Customer’s Subscriber’s current telephone an/or internet telephony service provider(s). No port shall be accepted or submitted without this information. Pricing information for porting DIDs to ESP is displayed in ANNEX 1. Standard porting time is fourteen (14) to forty-five (45) days, but ports may occur before fourteen (14) days or after forty-five (45) days in certain circumstances. Customer or Customer’s Subscriber should specify the desired port date in the appropriate section of the LOA. Once the LOA and bill copy are received from Customer and/or Customer’s Subscriber, Freevoice Telecom shall initiate the port request and shall obtain a FOC (Firm Order Commitment) date. Customer shall be provided with a FOC (Firm Order Commitment) date informing Customer when Customer or Customer’s Subscriber’s lines are scheduled to be ported to Freevoice Telecom. It is Customer’s sole responsibility to provide Customer Subscribers with the FOC date; Freevoice Telecom will not send the FOC information to Customer’s Subscribers. Porting time on the FOC date is 8:00 AM Eastern Time. The fees for canceling or changing a port of a DID to Freevoice Telecom are determined by how soon before or after the FOC date a port is cancelled or changed. Fees for canceling or changing a port are located in ANNEX 1. For any port cancellation or change initiated by Customer and/or Customer’s Subscriber(s), Freevoice Telecom shall assign the appropriate cancellation/change fees as displayed in ANNEX 1 to Customer’s account. Customer shall be provided a list of all port cancellations/changes appearing on Customer account. Payment for cancellation or change fees occurring within a given month shall be payable within fifteen (15) days of Customer’s receipt of the invoice displaying the port cancellation fees.

5. SECURITY DEPOSIT

On or before the Effective Date (but in any case prior to the Service Date), Customer shall provide ESP with a security deposit (“Deposit”) as set forth in the attached relevant Annex(es) hereto for measured services, which shall be based on an amount equal to seven (7) and/or thirty (30) days anticipated usage. If Customer is selling wholesale service plans, Customer must provide ESP with the estimated number of services plans to be sold within seven (7) and/or thirty (30) days. Customer’s Deposit amount shall then be based on an amount equal to cost of the anticipated number of service plans to be sold within seven (7) or thirty (30) days. ESP may draw upon the Deposit at any time to recover any amounts due and unpaid, in which case Customer shall immediately replenish the Deposit to its prior value. ESP shall not waive any of its rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts. In the event that ESP draws upon the Deposit, it may suspend the provision of Services until Customer replenishes the Deposit to its original value. If at any time, Customer’s payment history is or becomes unacceptable to ESP, ESP may then require that Customer provide, modify, or increase the amount or form of the Deposit. The Customer shall have twenty-four (24) hours from the receipt of ESP’S written request to comply with this request, and if Customer fails to do so, ESP may immediately suspend the delivery of Services and/or terminate this Agreement without further notice, or demand.

6. NET OF TAXES

All Services, pricing, and/or other charges due hereunder are exclusive of all applicable taxes, including value-added taxes, sales taxes, and duties or levies imposed by any authority, government, or government agency, the payment of which shall be the sole responsibility of Customer, and Customer agrees to indemnify and hold ESP harmless from any liability therefore.

7. TERMINATION

In addition to any other rights at law or in equity, ESP may immediately suspend the delivery of Services and/or terminate this Agreement in the event that Customer (a) fails to provide a Deposit as required in this Agreement; (b) fails to make payment for prepaid domestic U.S. services by the first day of each month without any notice or fails to make payment for other measured services when due and to remedy such nonpayment within twenty-four (24) hours after receipt of written notice hours after receipt of written notice thereof from ESP; (c) becomes insolvent or bankrupt or ceases paying its debts generally as they mature; or (d) commits a breach of any of the terms of this Agreement (other than a breach of the Deposit or payment obligation as addressed in (e) and (f) above and fails to remedy such breach within fifteen (15) days after receipt of written notice thereof from ESP. In the event of any termination of this Agreement, Customer shall pay ESP for all Services rendered through and including the date of termination. In the case of early termination of the fixed term pursuant to this Agreement prior to the expiration of the Term either by ESP pursuant to this Paragraph or by Customer for any reason other than a material breach solely attributable to ESP, Customer shall remain liable to pay ESP for the monthly charges or minimum commitments defined in the relevant Annex hereto for the remainder of the then-current Term. Customer understands and agrees that any breach by Customer of its obligations under this Agreement shall also be deemed a breach by Customer of its obligations under any other agreements it has entered into with ESP and/or its affiliates and understands and agrees that such breach shall authorize ESP and/or any of its affiliates to immediately suspend performance under, and/or terminate, said agreements with Customer for default if such breach(es) have not been cured within the time provided for in this Agreement.

LIMITATION OF LIABILITY & E911

No E911/911 Emergency Calling Services will be enabled for Customer.

9. ASSIGNMENT. This Agreement is personal to the Parties and may not be assigned or transferred by either Party without the prior written consent of the other Party which consent shall not be unreasonably withheld; except that ESP may assign this Agreement without consent to any affiliated entity or to any successor in interest whether by merger, reorganization or transfer of all or substantially all of its assets or otherwise. Except as provided herein, any assignment in contravention of the above shall be void and ineffective.

10. EQUIPMENT. If the customer wishes to use its own IP bandwidth, ESP may provide necessary VOIP equipment to be interconnected with Customer’s switching facility. Customer is responsible for maintaining necessary bandwidth. Equipment is delivered on as-is status. ESP or other affiliates do not represent any warranties on such equipment.

11. FORCE MAJEURE. No failure or omission by either Party to carry out or observe any of the terms and conditions of this Agreement (other than any payment obligation) shall give rise to any claim against such Party or be deemed a breach of this Agreement if such failure or omission arises from an act of God, an act of Government, any cause reasonably beyond the control of a Party, or any other circumstance commonly known as force majeure.

12. PUBLICITY and CONFIDENTIALITY. For a period of two (2) years after termination of this Agreement, each Party shall maintain the confidentiality of all information or data of any nature (“Information”) provided to it by the other Party hereto provided such Information contains a conspicuous marking identifying it as “Confidential” or “Proprietary” or is inherently of a confidential nature (i.e. customer or cost data). For purposes of this Article, this Agreement and all of its Annexes shall be considered “Confidential”. Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect the Information it receives hereunder as it accords to its own Information. The above requirements shall not apply to Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party, is already publicly available through no breach of this Agreement or has been previously independently developed by the receiving Party. This Agreement shall not prevent any disclosure of Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of this required disclosure. Each Party acknowledges that its breach or threatened breach of this Section may cause the Disclosing Party irreparable harm, which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Receiving Party agrees that equitable relief, including temporary or permanent injunctions, is an available remedy in addition to any legal remedies to which the Disclosing Party may be entitled. At the request of the Disclosing Party upon termination of this Agreement or at any time or from time to time thereafter, the Receiving Party shall, as promptly as practicable and in all cases within five (5) days of such request, deliver to Disclosing Party all proprietary information of Disclosing Party then in Receiving Party’s possession or under Receiving Party’s control or, in lieu thereof, Receiving Party may destroy all of Receiving Party’s copies of such proprietary information and certify to Disclosing Party in writing that such destruction has been accomplished.

13. DISCLOSURE. Without obtaining the prior written consent of the other Party hereto, a Party shall not (a) refer to itself as an authorized representative of the other Party in promotional, advertising or other materials; (b) use the other Party’s logos, trade marks, service marks, or any variations thereof in any of its promotional, advertising, or other materials, or (c) release any public announcements referring to the other Party or this Agreement without first having obtained said Party’s prior written consent. Notwithstanding the foregoing, ESP is hereby expressly authorized to identify Customer as its customer for Services for the limited purpose of the periodic issuance of marketing and/or publicity announcements.

14. NOTICES. All notices, requests or other communications hereunder shall be in writing, addressed to the Parties at the address indicated in the caption of this Agreement or as otherwise stated in the relevant Annex hereto. Notices mailed by registered or certified mail shall be deemed to have been received by the addressee on the fifth business day following the mailing or sending thereof. Notices sent by telex, facsimile or electronic mail shall be conclusively deemed to have been received when the delivery confirmation is received. Any notice of change of address shall be deemed to be received only when actually received.

15. COMPLIANCE WITH LAWS. This Agreement and its continuance hereof is contingent upon the obtaining and the continuance of such approvals, consents, governmental and regulatory authorizations, licenses and permits as may be required or deemed necessary by the Parties, and the Parties shall use commercially reasonable efforts to obtain and continue same in full force and effect. Customer shall not use the Services in any manner or for any purpose, which constitutes a violation of applicable laws in any jurisdiction in which the Services are being provided and shall indemnify ESP against any such unlawful use of the Services. The Parties acknowledge that Services provided pursuant to this Agreement are subject to the Communications Act as amended, and that the terms set forth in any relevant ESP tariff on file with the FCC and any state public utilities or services commission or comparable body (herein collectively referred to as the “Tariffs”) are incorporated herein by reference and shall supplement the terms of this Agreement where applicable.

16. SEVERABILITY AND WAIVER. If any part or any provision of this Agreement is or becomes illegal, invalid or unenforceable, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the validity or enforceability of the remaining parts of said provision or the remaining provisions of this Agreement. No waiver by either Party to any provisions of this Agreement shall be binding unless made in writing.

17. RELATIONSHIP OF THE PARTIES. The relationship between the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership between them, a joint venture, or a merger of their assets or their fiscal or other liabilities or undertakings. Neither Party shall have the right to bind the other Party, except as expressly provided for herein. This Agreement is non-exclusive. Nothing in this Agreement shall be deemed to prevent either Party from entering into an agreement or negotiation of any kind or nature with third parties. All persons employed by either Party in connection with the Services provided under this Agreement shall be considered employees or agents of such party only, and shall in no way, either directly or indirectly, be considered employees or agents of the other Party. Customer shall maintain their own billing, customer service, provisioning, and technical support centers and will not utilize ESP’S billing, customer service, provisioning and/or technical support centers and ESP will not provide any such service to customer other than delivery of the desired IP Trunks and or hardware.

18. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California, without reference to its principles of conflict of laws. Customer irrevocably consents and submits to personal jurisdiction in the courts of Polk County, California for all matters arising under this Agreement. In the event an action is brought or an attorney is retained by any part to this Agreement to enforce the terms of this Agreement or to collect any moneys due hereunder, the prevailing party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, reasonable costs of investigation or collection activities, accrued interest at one-and-one-half (1.5%), or up to the maximum percentage that the governing law allows, and any other related expenses incurred in connection therewith.

19. WAIVER OF TRIAL BY JURY. The Parties hereto hereby knowingly, irrevocably, voluntarily and intentionally waive any rights to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement or arising out of, under, or in connection with this Agreement or any document or instrument executed in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or action of any Party hereto. This provision is a material inducement for ESP and Customer entering into the subject transaction.

20. COUNTERPARTS. This Agreement may be executed in any number of counterparts, any one and all of which shall constitute the Agreement of the parties and each of which shall be deemed an original.

21. DID NUMBERS. It is understood it is a Customer responsibility to test the numbers assigned before activating it and delivering the service to Customer’s end user.

22. ENTIRE AGREEMENT. This Agreement, including the relevant Annexes thereto represents the entire understanding between the Parties in relation to the matters herein and supersedes all previous agreements whether oral or written made between the Parties in relation to the subject matter hereof. Except as otherwise agreed herein, this Agreement may only be modified by a writing signed by authorized representatives of both Parties. The headings in this Agreement are for convenience of reference and shall not affect its construction or interpretation. In the event of any conflict, inconsistency or ambiguity between the provisions of this Agreement, any Annex and/or the Tariffs, the interpretation shall be resolved by giving precedence to such documents in the following descending order: (a) the Annexes; (b) the Agreement; (c) the Tariffs.

IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate, or caused this Agreement to be executed in duplicate by a duly authorized officer, as of the date first above written.

FREEVOICE TELECOM, LLC.      

By: _________________________________ By: _________________________________

Name:_______________________________ Name: _______________________________

Title:________________________________ Title: _______________________________