Phone and Hardware Rental Agreement

Next Wave Communications’ Phone and Hardware Rental Agreement (“Rental Agreement”) is available to those Customers who have an accepted Service Order Form (“SOF”) that includes Hosted Voice Services (hereafter, the “SOF”) with a minimum Initial Term of at least twenty-four (24) months and a Renewal Term of at least twelve (12) months. For clarification, the Rental Agreement must be conterminous with the SOF and for an Initial Term of at least twenty-four (24) months, and the Customer must enter into the Rental Agreement at the same time as the Start Date of the SOF. This Phone and Hardware Rental Program is offered and available to United States Residents only.

This Rental Agreement, when entered into, will supplement the Master Service Agreement (the “MSA”) (including any Exhibits, SOFs, Rate Sheet(s), and any other attachments to the MSA, all of which are fully incorporated by reference within this Rental Agreement.  Capitalized terms not elsewhere defined in this Rental Agreement will have the meaning ascribed to them in the MSA or any applicable SOF.

Rental Services

This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from Next Wave Communications (collectively, the “Rental Services”). Next Wave Communications charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of Customer’s recurring bill from Next Wave Communications, Customer agrees to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as Customer’s payments for Next Wave Communications Hosted Voice Services, as defined in the SOF. Next Wave Communications will pro-rate the Rental Fees for any equipment that is rented, for the initial period from the start of the rental period until the end of then-current billing period for the Office Services, and the start of the rental will begin on the date a Rental Device is recorded as delivered by a designated courier or installed by Next Wave Communications (the “Rental Start Date”).

The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Next Wave Communications Hosted Voice Services billing period in which the end of such 30 day period occurs, (b) the termination of the SOF.

Upon any termination of the Rental Agreement or Rental Services, Customer agrees to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with Next Wave Communications’ written instructions and in accordance with the Return or Purchase Rights section of this Rental Agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If Customer does not return a Rental Device (subject to Next Wave Communications’ inspection and acceptance of the returned Rental Device in its reasonable discretion) within thirty (30) days following the termination of the Rental Services for such Rental Device, Customer will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after Customer received the Rental Device, 100% of the Rental Device’s then-current Next Wave Communications list price shown on Next Wave Communications’ web site, or (2) after such 12 month period, 80% of such list price, and Customer agrees to pay the applicable purchase price.

If Customer wishes to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Rental Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.

The Rental Fees for the Rental Services do not include additional services Customer may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or Next Wave Communications cost price, as determined by the tax law in the jurisdiction of purchase or rental.

Rental Devices Ownership; Damage and Loss

Next Wave Communications is and will remain the owner of each Rental Device unless title is conveyed to Customer in writing following Next Wave Communications’ confirmation to Customer of its receipt of Customer payment in full of the purchase price for the Rental Device. Customer will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines Next Wave Communications’ ownership of each Rental Device. Next Wave Communications may, without notifying Customer, assign Next Wave Communications’ interest in any Rental Device, and in that event, Next Wave Communications’ assignee will have all of Next Wave Communications’ rights in the Rental Device under this Agreement, but none of Next Wave Communications’ obligations. Customer agrees not to assert against Next Wave Communications’ assignee any claims, offsets, or defenses Customer may have against Next Wave Communications. Upon Next Wave Communications’ request, Customer will execute and deliver to Next Wave Communications any documents or forms for protecting Next Wave Communications’ ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code.

Upon receipt of each Rental Device, Customer will examine each Rental Device, and unless Customer notifies Next Wave Communications within five business days of Customer receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. In the event that any Rental Device delivered to Customer is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, Customer will immediately notify Next Wave Communications in writing and pay Next Wave Communications a purchase price equal to (1) during the first 12 months after Customer received the Rental Device, 100% of the Rental Device’s then-current Next Wave Communications list price shown on Next Wave Communications’ web site, or (2) after such 12 month period, 80% of such list price. This obligation does not apply to any damage to a Rental Device that is covered by the manufacturer’s warranty.

Rental Device Usage

Customer will ensure that: (a) each Rental Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by Next Wave Communications, as may be updated by Next Wave Communications or the manufacturer of the Rental Device from time to time; (b) each Rental Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Rental Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Rental Device may not be removed, defaced, or otherwise obstructed; and (e) each Rental Device will only be repaired subject to Next Wave Communications’ express written authorization and in accordance with Next Wave Communications’ instructions and requirements.

Return or Purchase Rights

Returns

When Customer returns a Rental Device, Customer agrees to return a fully functional and non-damaged Rental Device to Next Wave Communications, at Customer risk and cost, and Customer agrees that, to the extent that Customer does not do so, Customer will be obligated to pay Next Wave Communications a thirty-five dollar ($35.00) re-stocking fee. Customer agrees to pay all shipping and handling charges related to any Rental Device and related hardware returns.

All Rental Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Rental Device. At our discretion, we may decline Customer return or charge Customer an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.

Before returning any Rental Device or hardware that has data in its memory, please transfer all files Customer wishes to retain to another file source. Once the hardware is returned, Customer files cannot be recovered and Customer releases Next Wave Communications of any liability for any lost, damaged, or destroyed files, data, or other information.

Purchases

Customer may purchase a Rental Device at any time following 12 months from the date Customer received the Rental Device. Customer agrees to purchase the Rental Device for 80% of the Rental Device’s then-current Next Wave Communications list price shown on Next Wave Communications’ website.

Other Remedies

If Customer is obligated to return or purchase a Rental Device subject to this Return or Purchase Rights section of this Rental Agreement, and Customer has not returned a Rental Device or Customer has defaulted in any obligation to pay the purchase price due for a Rental Device to be purchased, Next Wave Communications may, in addition to those remedies available at law, in equity, or as otherwise set forth in this Agreement, take possession of any or all Rental Devices without demand, notice, or legal process, wherever each Rental Device may be located, and Customer hereby waives any and all damages occasioned by that taking of possession.

Warranty Disclaimer

EACH RENTAL DEVICE AND ANY TELEPHONE HARDWARE PURCHASED IN CONNECTION WITH THIS RENTAL AGREEMENT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND NEXT WAVE COMMUNICATIONS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. NEXT WAVE COMMUNICATIONS MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY RENTAL DEVICE WILL BE DELIVERED TO YOU BY A PARTICULAR DATE OR IS FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF ANY RENTAL DEVICE SHALL BE BORNE SOLELY BY YOU.

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT NEXT WAVE COMMUNICATIONS CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

General Terms

Customer authorizes us to collect any payment owed by Customer hereunder from Customer’s payment method, as provided in the SOF. This Rental Agreement, which is subject to and incorporated by reference the SOF constitutes the complete, final, and exclusive embodiment of the entire agreement between Customer and Next Wave Communications regarding the Rental Services. In signing the Agreement, the undersigned represents to Next Wave Communications that the undersigned has full power and authority to perform all its obligations hereunder. This Rental Agreement is the binding obligation of the undersigned, enforceable against the undersigned in accordance with its terms.

Next Wave Communications may, in its discretion, update or change the terms and conditions of this Rental Agreement, and the version of this Rental Agreement applicable to each Rental Device, is the version of this Rental Agreement then in effect at the start of the rental for that Rental Device, including the start of the rental for an upgrade Rental Device. This Phone Rental/Lease Program is offered and available to United States residents only. Customer must agree to a Service Commitment Period for Next Wave Communications Office Services with an Initial Term of at least 24 months to be eligible to participate in this Phone and Hardware Rental Program.

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