PENGUIN agrees to provide service and CLIENT agrees to receive and pay for those services as set forth in this service agreement. This agreement has been signed by an individual authorized to legally bind and obligate the CLIENT to pay for all products and services specified on this agreement.

1.0.1 No Initial Term. Service is provided on a month-to-month basis only. In order to terminate service the CLIENT may provide PENGUIN a minimum of 30 Days Notice to schedule a date of termination of service(s). PENGUIN may give the CLIENT a minimum of 30 Days Notice of Cancellation of Services.

1.0.2 Advance Billing. All services are billed in ADVANCE and due and payable the 1st day of each calendar month. Invoices from PENGUIN are merely a courtesy, sent via email, to the Principle Account Holder or designated CLIENT representative.

1.1 Payment Due Upon Cancellation. The CLIENT agrees to pay any and all recurring and non-recurring charges open on the account at the time of their 30 notice in order to terminate service. The CLIENT also agrees to pay any and all charges incurred during the final 30 days in which PENGUIN provides product(s) and/or service(s) to the CLIENT.

1.2.1 Termination. PENGUIN reserves the right to lawfully refuse service as defined by the State of California. PENGUIN reserves the right, to modify, suspend, or terminate the service including but without limitation, for default or failure to pay any sum due hereunder, for suspected fraud or other activity, for your termination of the service prior to the end of the then current term or calendar month, and/or for any other breach of this Agreement or any reason as deemed necessary by PENGUIN.

1.2.2 Termination. In the event of a termination of service (whether initiated by PENGUIN or the CLIENT) PENGUIN is not responsible to provide training to perform similar functions provided by PENGUIN, the migration of any services or any account or service related data to a new service provider, managed service provider or any other party. Unless otherwise agreed upon by both parties in writing, and billed automatically by eCheck or Credit Card payment, at the regular hourly support rates.

1.2.3 Termination. At the time that services are terminated: related equipment, managed or monitored services may be impacted. This includes, but is not limited to, any and all supported, managed or cloud managed devices or hosted services and related equipment, backend monitoring and support of these services and equipment. The CLIENT cancels service understanding that these items may be impacted and that PENGUIN is not responsible for maintaining, restoring or supporting these items after termination of service. 

1.3 Default. In the event of a default, the CLIENT shall pay PENGUIN all Default Charges within fifteen (15) calendar days of your receipt of a bill for such charges, and shall reimburse PENGUIN for all reasonable attorney, court, collection and other fees and costs incurred by PENGUIN in the enforcement of its rights hereunder.

1.4 Prohibited Uses. Customer agrees to use the Service and Equipment only for lawful purposes and not to use them for transmitting or receiving any communication, content or material of any kind which is unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable, including where the transmission, receipt and/or possession of such communication or material would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. PENGUIN reserves the right to terminate your Service(s) immediately and without advance notice if you have violated the above restrictions.

1.5 Governing Law. This contract shall be construed in accordance with and governed by the laws of the State of California.

1.6 Third Party Applications. If you have external applications that are not provided or supported by PENGUIN, PENGUIN will work on a best effort basis to integrate them with technical support and assistance from the technical resource of the third party who provide and support these applications both internally and externally. PENGUIN is held harmless, and does not assume any responsibility for call interference from these applications, if any. (Example: Google Follow-Me , CRMs etc.) PENGUIN integration assistance may be a billable charge depending on the scope of the work required. Space below this line intentionally left blank

1.7.0 Cabling & Internet Service Requirements. Every PENGUIN installation assumes that the customer will be providing a live Category 5, 5e or 6 Ethernet cable connection for each VoIP phone PENGUIN is installing. If a VoIP phone is being placed next to a live computer, the VoIP phone and computer can share one existing Ethernet cable, if POE is a supported feature of the model of IP Phone which has been selected by the CLIENT. All cabling must be terminated with a RJ45 insert jack and faceplate, on the phone end, and terminated to a switch or Patch Panel on the data/phone room end. Patch cables must be customer provided, if necessary.

1.7.1 Cabling & Internet Service Requirements. (con’t) If PENGUIN has been contracted to complete any additional cable work, then PENGUIN will ensure compliance. If any non- PENGUIN cabling is unfinished, PENGUIN will complete the work as a billable service. Customer is responsible for providing an active internet connection and modem/router installed in the phone/data area where all cabling terminates. If a feeder cable is needed to connect the internet router/modem to the phone cabling, PENGUIN will complete this work as a billable service.

1.8 Self Installation of Equipment On-Site. If the CLIENT elects to perform a Self-Installation of any cabling, PENGUIN supplied equipment or CLIENT purchased Equipment which PENGUIN is dependent upon in order to provide services, the CLIENT is responsible for the completion of said installation prior to the scheduled service activation. If services are activated by PENGUIN, on or after the agreed upon scheduled service activation date, the CLIENT is still responsible for paying any charges due for those services, whether they have completed the Self Installation or not.

1.9 Internet Issues. On a rare occasion, there might be a need to involve your internet carrier to troubleshoot stability of the internet circuit for voice. PENGUIN will assist in this process and provide diagnostics to ensure the best possible call quality experience. In a rare instance, PENGUIN might recommend a dedicated internet circuit for voice, a different carrier or different type of service, if the current internet circuit continues to remain unstable. PENGUIN will make every effort possible to remedy call quality issues on a best effort basis.

1.10.0 Monthly Invoicing and Automatic Payments.

a) Payments on NON-RECURRING (one-time) charges such as equipment and deposits may be made by credit card, bank transfer or check, mailed to: PENGUIN P.O. Box 2550 Turlock, CA 95381 Checks should be made payable to PENGUIN

b) Payments on RECURRING monthly service charges MUST be made by automatic credit card or bank transfer, on the first of each month, or on the first day of the new billing cycle, if billed annually or semi-annually.

Please call our Office to set up AutoPay with your Credit Card or Bank Account and Routing number over the phone at 209-585-1375. When beginning new service we will contact you in order to do so, if we have not received the information prior to your first recurring monthly service invoice being emailed.

Any questions regarding Billing, Credit Card Charges, Automatic Bank Transfers or Invoices should be directed to billing@callpenguin.com or our office at 209-585-1375, Monday-Friday between 9am and 5pm.

1.10.1 Accepted Payment Methods.

a) PENGUIN proudly accepts Visa, Mastercard, American Express, Business Check or eCheck (Bank Transfer) payment methods for NON-RECURRING (one-time) charges.

b) PENGUIN proudly accepts Visa, Mastercard, American Express, or eCheck (Bank Transfer) payment methods for RECURRING monthly charges.

*PENGUIN does not accept Discover card. Chase QuickPay and PayPal options are available on a case by case basis. 

1.11 Past Due Accounts, Late Fees and Administrative Charges.

We’re sure you understand how important it is as a small business that you pay the invoices that we send you promptly. As we’re also sure you’ll want to stay friends, you agree to stick tight to the following payment schedule.

Equipment or Projects:

50% of the Estimate Due Upon acceptance of the formal Estimate

50% or the remaining balance of the formal estimate plus all other charges added during the course of the project is due upon Approval of the completed website, and before we make the website live on your domain.

Recurring Monthly Service Charges:

Due the first of each month and delinquent on the first day of the following month.

Must be paid within 30 days to avoid Late Payment Fees and Administrative Charges. 

Details:

a) Invoices from PENGUIN are a courtesy reminder, of your regular recurring monthly charges. All RECURRING monthly service charges are due and payable on the 1st of each month. That said, payments received after the 1st of the month are considered PAST DUE.

b) Accounts with Invoices over 30-days past due, will be subject to a 1.5% Late Payment Fee (Based on 1.5% of the total charges which are over 30-days past due, including any fees already on the account) and accruing each month that the account remains past due.

c) Each month that your account is past due and accrues Late Payment Fees, the account will also be subject to an additional $15 Administrative Fee. For example:

i. The January 1st 2016 Invoice is $200.

ii. If unpaid on February 1st 2016, it would be subject to a $3 Late Payment Fee and a $15 Administrative Fee, as well as the Invoiced amount for February of $200, a total of $418.

iii. If all go unpaid on March 1st 2016, it would be subject to a $6.27 Late Payment Fee and a $15 Administrative Fee, as well as the Invoiced amount for March of $200, for a total of $639.27.

d) All accounts which are over 60-days past due will be placed in a non-support status. This means that in order to gain any technical assistance or support for your systems, hardware or services, the account will need to be brought current, in order to be eligible to receive support from PENGUIN. No requests, feature changes or additions or service changes will be made while the account is in a non-support status.

e) Any Hosted or Cloud Services on accounts which are over 60-days past due may be subject to service interruption. Any Account which is temporarily suspended, will be subject to reactivation fees for each service which is reactivated and will be required to set up automatic monthly payments (credit card or bank transfer), if AutoPay is not already enabled on the account.

1.11 Returned Checks, Failed Automatic Payments and Chargebacks.

• There is a fee of $10 for the first instance of a failed automatic payment. Each occurrence after that, the fee increases to $25 per occurrence.
• There is a fee of $25 for the first instance of a returned check. Each occurrence after that, the fee increases to $45 per occurrence.
• There is a fee of $25 for the first instance of a chargeback on an automatic payment where PENGUIN has signed authorization to automatically process or manually process a payment of any type. Each occurrence after that, the fee increases to $55 per occurrence.
  

1.12 Support Service Level Agreement (SLA). PENGUIN is committed to providing consistent and dependable support. Resolution of issues and questions is based on the severity of the issue and it’s effect on the CLIENT’s ability to operate their business normally. PENGUIN commits to making an initial response to all requests made via email or phone call/voicemail within the timeframes specified by article Support Guidelines for PENGUIN Customers located in the PENGUIN Help Center.

1.13 Equipment. Equipment purchased and provided to the CLIENT by PENGUIN carries with it only the original manufacturers warranty. Where the equipment provided is designated as pre-owned, used or refurbished on the approved estimate, absolutely no warranty is implied or included with said equipment. The CLIENT agrees to pay for said equipment in full, if the full amount for said equipment has not been received by PENGUIN, prior to any discovery of any issues with the equipment which prevent it from performing it’s desired function. PENGUIN commits to providing tested equipment. As well as verifying that the equipment is in good working order, and functioning as desired, prior to completion of any installation.

The CLIENT acknowledges and accepts that all equipment sales are final and no refunds will be given.

1.14 Indeminification. The CLIENT to the fullest extent by law, affirm that the CLIENT will hold harmless, indemnify, and defend the PENGUIN and the officers, employees, contractors, related entities, agents and duly authorized volunteers individually and collectively (“PENGUIN”) from and against all claims, demands, causes of action, lawsuits (whether at law, equity or both), proceedings, liabilities, losses, damages, expense costs (including without limitation attorney’s fees and costs and expert witness fees), judgments, penalties and liens or every nature resulting from injury to or death sustained by any person (including CLIENT’S employees), or damage to property of any kind, or any other injury or damage whatsoever, which injury, death or damage arises out of or is in any way connected with PENGUIN products and services or their performance of services hereunder, or their failure to comply with any of its contractual obligations, or its failure to comply with any current or prospective law, regardless of PENGUIN or the CLIENT'S fault or negligence, including any of the same resulting from the alleged or actual negligent act or omission of an Indemnified Party, except that said indemnity shall not be applicable to injury, death or damage to property arising from the sole or active negligence or willful misconduct of PENGUIN, its officers, agents or servants.

This indemnification obligation shall survive any other contractual obligation and shall not be limited by any term of any insurance policy. The individual signing this agreement affirms she or he is authorized to bind the above company or organization, referred to herein as the CLIENT.

NOTE: All PENGUIN Solutions assume the following:

Any quote from PENGUIN does not include a high speed internet connection. Customer must provide a high speed internet connection and required Category 5 or 6 Ethernet cable at each location at which equipment is to be installed at the site unless internet service is a service being provided by PENGUIN as per agreement. All data stored on Penguins systems are only stored for 30 days.