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This Services Agreement (“Agreement”) is made and entered into effective as of the date the order is completed (“Effective Date”) between Connected Solutions Group, LLC, a Virginia limited liability company (“Company”) and you (“Customer”). Company and Customer may be referred to in this Agreement individually as a “party” and together as the “parties.” For valuable consideration, the receipt and adequacy of which is acknowledged, the parties agree as follows:
1. Recitals. This Agreement is entered into with reference to the following recitals of essential facts:
1.1. Company provides certain POTS replacement services, ranging from standalone fax to L&S to POTS+Primary. (“Services”).
1.2. The parties desire to enter into this Agreement to set forth the terms and conditions pursuant to which Company will provide Services to Customer.
1.3. By completing the ordering process for the Services, Customer agrees to the terms and conditions in this Agreement.
2. Services. Company will provide the Services to Customer. Company shall provide the Services in accordance with the terms of this Agreement. Company shall provide Customer with Tier 0, Tier 1, Tier 2 and Tier 3 level support as described herein below. Any equipment required for the use of Services must be professionally installed; Company shall not provide any installation services to Customer under this Agreement. Additional information on Services:
2.1.1. “Actual Monthly Uptime Percentage” = (A-B+C)/A , where:
(a) A = Total Monthly Time (defined below);
(b) B = Unavailable Monthly Time (defined below); and
(c) C = Excluded Monthly Times (defined below)
2.1.2. “Core Services” means all mission critical capabilities needed to maintain overall call processing, including the ability to route calls from Location Addresses to a provider of PSTN termination and the ability to receive originating calls from a DID origination provider and route them to a Customer’s device, or to Customer’s voicemail or any other system prompt or action as configured by Customer
2.1.3. “Standard Monthly Uptime Percentage” means the percentage listed in the table below under the heading, “Standard Monthly Uptime Percentage.”
2.1.4. “Priority 1” means an outage that affects all Customer’s lines of service. Examples include no dial tone, inability to register, or unable to complete any calls.
2.1.5. “Priority 2” means severe problems with the service that results in a partial service outage on one (1) or more lines of service. Examples include calls to specific areas not completing, web interface/service/platforms not available or not functioning properly.
2.1.6. “Priority 3” means day-to-day account-centric issues such as access to an account, password renewal, etc.
2.1.7. “Priority 4” means Customer information or feature change requests or special development requests. Such requests may incur fees, that would need to be reviewed and approved by Customer.
2.1.8. “Support Services” all non-mission critical capabilities of the platform including Customer access to accounts and other back-office management systems.
2.1.9. “Standard Support Hours” means those hours between 8:00AM and 6:00PM Eastern Standard Time, Monday through Friday. All other hours and holidays (defined as New Year’s Day, Presidents Day, Good Friday, Memorial Day, Independence Day, Labor Day, Day before Thanksgiving, Thanksgiving Day, Christmas Eve, and Christmas Day), are considered “Off Hours”.
2.1.10. “Total Monthly Time” means the total number of minutes in the applicable calendar month.
2.1.11. “Unavailable Monthly Time” means the number of minutes in the applicable calendar month during which the Core Services or Support Services (as applicable) were unavailable for use.
Applicable Services Standard Monthly Uptime Percentage Core Services 99.9%
Support Services 98%
2.2. Excluded Monthly Times. Notwithstanding any provision in this Agreement to the contrary, no Unavailable Monthly Time will be deemed to have occurred if downtime: (i) is caused by factors outside of Company’s reasonable control, including, without limitation, telecommunications provider-related problems or issues, Internet access or related problems occurring beyond the point in the network where Company maintains access and control over the Services; (ii) results from any actions or inactions of Customer or any third party; (iii) results from Customer’s equipment, software or other technology, Add-on services, or third party equipment, software or other technology; (iv) occurs during Company’s scheduled maintenance for which Company will provide at least twenty-four (24) hours prior notice; (v) occurs during Company’s emergency maintenance (maintenance that is necessary for purposes of maintaining the integrity or operation of the Services), regardless of the notice provided by Company; or (vi) results from any alpha, beta, developer preview, development test bed environments, descriptions of similar import or not otherwise generally available Company features or products; or (vii) periods of Unavailable Monthly Time that are less than five (5) minutes of continuous unavailability in duration (collectively, the “Excluded Monthly Times”).
2.3. Entire Liability. Notwithstanding anything to the contrary contained herein or in the Agreement, with respect to any outages in respect of the Services or failure of Company to meet the Standard Monthly Uptime Percentage, the remedy, or remedies, provided in this Agreement shall be Company’s sole and entire liability to Customer and Customer’s sole remedies.
2.4. Support in the event of outages.
2.4.1. In the event of issues or outages in respect of Services, Company will provide technical support. Customer shall notify Company of any outages by submitting support tickets (each a “Ticket”) to Company by email to [email@example.com]or by calling 804-238-6111 which Ticket shall include the
Customer name, location address, issue description and indication of priority level. In the body of the email, Customer shall include a detailed description of the problem and contact information. If a Ticket has been submitted successfully, Customer will receive a confirmation email which contains a Ticket number.
2.4.2. Company will provide technical support during Off Hours as needed for Priority 1 events. Access to technical support during Off Hours for Priority 2, Priority 3 or Priority 4 events is subject to availability and must be scheduled in advance by coordinating with Company’s representatives by email to firstname.lastname@example.org.
2.4.3. In the event the Customer contacts Company during Off Hours to help remedy a Priority 1 outage, the event will be reviewed by Company and Customer to determine the cause of the outage. If Company is determined to not be at fault for the cause of the event, then Customer will pay for Company’s time spent on the off hour, non-planned emergency support at the rate of $100 per hour, with a two (2) hour minimum. Customer will not be responsible for any incident fee or hourly support fees if an outage is determined to be the fault of Company.
2.4.4. Company shall use commercially reasonable efforts to provide a Reason for Outage (“RFO”) to Customer within 48 hours of the submission of a Ticket for any Priority 1 event, and within 96 hours of submission of a Ticket for any Priority 2 or Priority 3 events.
2.4.5. Company shall use commercially reasonable efforts to respond to any service issues or outages within the time frames listed below:
(a) Priority 1: within four (4) hours of submission of a Ticket
(b) Priority 2: within eight (8) hours of submission of a Ticket
(c) Priority 3: within twenty-four (24) hours of submission of a Ticket (d) Priority 4: when commercially feasible
2.4.6. Company shall use commercially reasonable efforts to deliver a resolution or, if immediate resolution is not possible, a work-around solution, in respect of any service issues or outages within the time frames listed below:
(a) Priority 1: within two (2) business days of submission of a Ticket
(b) Priority 2: within five (5) business days of submission of a Ticket
(c) Priority 3: within fifteen (15) business days of submission of a Ticket (d) Priority 4: when commercially feasible
2.4.7. Company will use commercially reasonable efforts to notify Customer about any planned maintenance or relevant changes made to Customer Portal, which have potential to impact the Customer’s service; provided however that In the case of emergency maintenance or non-scheduled downtime, the notification may not be provided or may be provided less than twenty-four (24) hours prior to the applicable maintenance.
3.1. Acceptable Use Policy. Customer shall not use the Services: (a) for any unlawful purpose ; (b) to perform, participate in or encourage any unlawful acts; (c) to transmit or store any content or communications (commercial or otherwise) that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation or otherwise poses a threat to the public; (c) in violation any international, federal, provincial or state regulations, rules, laws, or local ordinances or industry standards; (d) to infringe upon or violate Company’s intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to reverse engineer, copy, decompile or disassemble the Services; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services; (h) for any obscene or immoral purpose; (i) to interfere with or circumvent any aspect of the Services or any third party networks that are linked to the Services or any related website, other websites, or the Internet; (j) to in any way harm Company’s business operations or reputation; (k) to create a false identity or any attempt to mislead others as to the identity of the sender or the origin of any data or communications; or (l) to violate the integrity of the Services including bypassing, exploiting, defeating or disabling limitations or restrictions placed on the Services, finding security vulnerabilities to exploit the Services or attempting to bypass any security mechanism or filtering capabilities, any denial of service (DoS) attack on the Services or any other conduct that attempts to disrupt, disable, or overload the Services, transmitting code, files, scripts, agents, or programs intended to do harm, including viruses or malware, or using automated means, such as bots, to gain access to or use the Services or attempting to gain unauthorized access to the Services.
3.2.1. Personal Information Collected. In order for you to gain full access our Services, we may require you to access or website, www.thisiscsg.com (“Site”) and provide us with certain information that personally identifies you (“Personal Information”). Personal Information includes without limitation your name, mailing address, country of residence, phone number, e-mail address, billing address, credit card information, IP address, routing or serial numbers of equipment used in connection with our Services, cellular data plan, account user name and passwords, and any other information that you provide us. Personal Information does not include information that is collected anonymously (i.e., Traffic Data (as defined below) and other information without identification of the individual user) or demographic or use information not connected to an identified individual.
(a) Broadly speaking, we use Personal Information to further our legitimate interests to:
(i) Understand who our customers and potential customers are and their interests in our Services; (ii) Manage our relationship with you and other customers;
(iii) Carry out core business operations such as accounting, filing taxes, and fulfilling regulatory obligations; and
(iv) Help detect, prevent, or investigate security incidents, fraud and other abuse and/or misuse of our products and services.
(b) Some examples of how we use your Personal Information include, without limitation to: (i) Fulfill the reason(s) you provided the information (e.g., to process payments);
(ii) Administer our Services;
(iii) Respond to emails or online requests regarding our Services;
(iv) Deliver and process surveys to enrich our Services;
(v) Personalize and improve the usability of our Site and provide IT support in connection to our Services;
(vi) Develop, research, test, or analyze our Services for us to improve our Services or develop new offerings of products and services;
(vii) Tailor content on our Site, correspondence, and our advertising and marketing materials; (viii) Share with third parties as required by law and to pursue legal matters;
(ix) Properly administer our Site and conduct audits;
(x) Maintain our internal record keeping as required by law;
(xi) Create, maintain, customize and secure your account with us;
(xii) Ensure Site content is properly delivered to your electronic device; and
(xiii) Keep our Site secure and protect our Site from malicious, deceptive, fraudulent or illegal activity, and prosecuting those responsible for that activity.
3.2.2. Traffic Data Collected. We may automatically track and collect the following categories of information when you visit our Site: (1) visits and browsing activities made on the Site and its webpages; (2) domain servers; (3) types of computers accessing the Site; and (4) types of web browsers used to access the Site (collectively “Traffic Data”). Traffic Data is anonymous information that does not personally identify you. We may use it for marketing purposes, research and development purposes, to prevent and investigate fraud, abuse or security incidents, and to improve your experience on the Site and Services.
(a) Collect Traffic Data;
(b) Understand traffic patterns and the number of visitors to the Site and other non-Company websites that we may partner with;
(c) Understand how you use and interact with the Site;
(d) Provide customer service management and IT support;
(e) Plan and improve Services;
(f) Optimize your experience on our Site or your use of our Services;
(g) Provide non-Personal Information auditing, researching, modeling, and reporting for our advertisers and other partners;
(h) Provide you relevant advertisements and content; and
(i) Properly manage our Site and Services provided in connection therewith.
3.2.4. We may use several different types of cookies on our Site and Services, including without limitation:
(a) Strictly Necessary Cookies – Most websites, including ours, would not work very well without certain cookies. They allow us to prevent crashes, display information, fix bugs, and ensure the security of our website and application (and your account). These types of cookies are often called “strictly necessary” cookies. Because they are needed for our Service to work, we do not provide you with an ability to opt- out of these cookies. But you can remove them by using your browser settings. Keep in mind that certain features of our Service may not be available to you if you opt-out of these cookies.
(b) Functionality Cookies – We use these cookies so that we recognize you on our website and remember your previously selected preferences. For example, if you leave our website without logging out of your account, the next time you access our website (within a limited period) you may find yourself still logged on to your account to save you time from logging back on. Functional cookies are not essential to the functioning of the website, but rather improve navigation quality and experience.
(c) Statistics Cookies – Also known as “performance cookies,” these cookies collect information about how you use our Service, like which pages you visited and which links you clicked on. None of this information can be used to identify you. It is all aggregated and, therefore, anonymized. Their sole purpose is to improve the functionality of our Service. This may include without limitation, cookies from our third party analytics services.
If you are concerned about cookies, most browsers permit individuals to decline cookies. A user refusing cookies may limit your ability to take advantage of all the features of our Site and Services.
3.2.5. End Users’ Information and Data Collected. Your end users’ Personal Information may show up on in a few different ways, including without limitation (collectively, “End User Data”):
(a) Communications-related Personal Information, like your end users’ phone numbers for number- based communications, your end users’ email addresses for email communications, IP addresses for IP- based communications, device status (indicating whether a device is available for messaging), phone number, cellular data plan, or device tokens for push notifications, show up in our systems when you use or intend to use this information to contact your end user through use of our products and services.
(b) Service-related Personal Information, like your end users’ phone number, cellular data plan, call history or log of use of our VOIP services and other personal information provided by end users when using our Site and Services.
3.2.6. Sharing of Personal Information: We may disclose information we collect with other third parties, including without limitation to:
(a) Service Providers – Company may share information with third parties that help us to maintain and operate our Site and to provide our Services. Our service providers include without limitation our payment processors, internet service providers, data analytics providers, marketing and customer survey providers, and operating systems providers to provide back-end services related to our Services. These third parties may only use such information to perform specific Services that we have contracted with them for and may not use it for any other purpose.
(b) Affiliates – We may share information with our affiliates and partners, or to their employees, agents, contractors, representatives, legal counsel and/or accountants, for: operational, management and administrative purposes; internal audit, legal, regulatory, security, insurance, financial, processing and other similar purposes; or as otherwise permitted or required by law.
(c) Third Parties that You Direct Us to Share With – We share information at your request or direction. We may also share your information with those that you have consented or directed us to share your information with.
(d) Third Parties in Connection with a Merger, Acquisition or other Business Transaction – We may share information if Company is involved in a merger, acquisition, sale of all or a portion of its assets, financings, joint ventures, reorganizations, dissolution, liquidations, or other event where we sell or transfer all or a portion of our assets. We will not provide you or your end users with notice before disclosure in such cases.
(e) Third Parties for Security and Compelling Disclosure Purposes – Company must disclose information about you or your end users in response to lawful requests by public authorities, including but not
limited to meeting national security or law enforcement requirements. We may share information about you or your end users in connection with legal requirements, such as in response to an authorized subpoena or when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, or investigate fraud. Such disclosures may be carried out without notice to you or your end users.
3.2.8. California Residents: Your California Rights:
(a) Under California Civil Code section 1798.83, California resident have a right to request a list of all third parties to which we, during the immediately preceding calendar year, have disclosed certain Personal Information for direct marketing purposes. We do not share Personal Information about you with any third parties for their own marketing purposes. We are only required to respond to such a request once during any calendar year. To make such a request, you should contact us as listed below. Please be aware that not all information sharing is covered by the California privacy rights requirements and only information sharing that is covered will be included in our response.
(b) Company does not track its customers over time and across third party websites to provide targeted advertising and therefore does not respond to web browser’s Do Not Track (DNT) signals. However, some third party sites do keep track of your browsing activities when they serve you content, which enables them to tailor what they present to you. You may set the DNT signal on your browser so that third parties (including advertisers) know you do not want to be tracked.
(c) In accordance with California Civil Code Sec. 1789.3, California resident users are entitled to know that they may file grievances and complaints regarding our Site with the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 North Market Blvd., Sacramento, California 95834, by telephone at (916) 445-1254 or (800) 952-5210, or by email to email@example.com.
3.2.9. European Economic Area and United Kingdom (“EEA”) Residents: Your EEA Rights:
(a) Data protection laws in the EEA require a “lawful basis” for processing “personal data” (as defined by GDPR). Please see the section entitled “Information Collected Through Our Site” for a description of our lawful basis for collecting, using, and disclosing personal data.
(b) If you are in the EEA and certain requirements are fulfilled, you have the following data protection rights:
(i) Right to Access – You have the right to request copies of your personal data from Company. We may charge you a small fee for this service.
(ii) Right to Rectification – You have the right to request that Company correct any information you believe is inaccurate. You also have the right to request Company complete information you believe is incomplete.
(iii) Right to Erasure – You have the right to request that Company erase your personal data, under certain conditions.
(iv) Right to Restrict Processing – You have the right to request that Company restrict the processing of your personal data, under certain conditions.
(v) Right to Object to Processing – You have the right to object to Company’s processing of your personal data, under certain conditions.
(vi) Right to Data Portability – You have the right to request that Company transfer the data that we have collected to another organization, or directly to you, under certain conditions.
(vii) Right to Withdraw Consent – You also have the right to withdraw your consent at any time where Company relied on your consent to process your personal data.
(c) If you wish to exercise one of the above-mentioned rights, please contact us via the methods set forth below in the section entitled “Contact Us.” We will have one month to respond to you. Please note that we may ask you to verify your identity before responding to such requests.
(d) You have the right to file a complaint regarding your personal data with a data protection authority, if you believe that the use or handling of your personal data does not comply with legal requirements. We would, however, appreciate the opportunity to address your concerns before you approach a data protection authority, and would welcome you directing an inquiry first to us by contacting us through our Contact Us page.
3.2.10. Third Party Advertisers and Links to Other Sites:
3.2.11. Security and Storage:
(a) We have taken reasonable precautions to maintain the security and accuracy of the Personal Information and data we collect. We continue to work on features to keep your data and data of all end users safe.
(b) However, despite our efforts, please be aware that no security measures are perfect or impenetrable and we cannot guarantee that the information you transmit or provide to us, or that your end users
provides us or uploads to our software, will be completely secure. We are not responsible for any interception or interruption of any communications through the internet or for changes to or losses of data. You and end users are responsible for maintaining the security of any password, account ID or other form of authentication involved in obtaining access to our Services.
(c) We will retain your Personal Information and data for as long as needed to provide you with our Services or as needed to fulfill our own obligations, such as preventing fraud, meeting regulatory requirements, resolving disputes, improving our Services or maintaining security, and in each case, as consistent with applicable law. We may retain Traffic Data that has been sufficiently aggregated or anonymized for a longer period. When Personal Information or data are no longer necessary or relevant for the stated purpose or to fulfill a legal or business requirement, it shall be securely destroyed. Company will either physically or electronically erase the Personal Information or data from its servers.
3.2.13. Geographic Restrictions:
(a) Company operates in the United States and our customer support is provided by personnel located in our offices in the United States. We may limit the availability of our Site and Services to any person or geographic area at any time. If you access our Site from outside the United States, you do so at your own risk.
(b) IF YOU ARE A USER ACCESSING OUR SITE AND SERVICES FROM ANY OTHER COUNTRY WITH LAWS OR REGULATIONS GOVERNING PERSONAL INFORMATION OR DATA COLLECTION, USE AND DISCLOSURE THAT DIFFER FROM THE LAWS OF THE UNITED STATES, PLEASE BE ADVISED THAT THROUGH YOUR CONTINUED USE OF OUR SITE, YOU ARE TRANSMITTING YOUR PERSONAL INFORMATION AND DATA TO THE UNITED STATES AND YOU CONSENT TO THAT TRANSMISSION. ADDITIONALLY, YOU UNDERSTAND THAT YOUR PERSONAL INFORMATION AND DATA MAY BE TRANSMITTED TO AND PROCESSED IN COUNTRIES (INCLUDING THE UNITED STATES) WHERE LAWS REGARDING PROCESSING PERSONAL INFORMATION AND DATA MAY BE LESS STRINGENT THAN IN YOUR COUNTRY.
4. Compensation. Fees for Services are as stated on the Sales Order, and fees may be changed by Company from time to time upon thirty (30) days prior written notice to Customer. POTSolve Service is $25 per unit.
4.1. Payment Terms. Company will invoice the Customer for all monthly fees in respect of the Services, and Customer shall pay all amounts due to Company within fifteen (15) days of receipt of any invoice issued by Company. Each invoice will describe the Services provided during the applicable monthly period and the fees and expenses payable by Customer for such Services. In addition to all other rights
and remedies available under this Agreement and applicable law, if Customer fails to pay any amount when due, (i) such amount will accrue interest at the lesser of 1.5% per month or the maximum legal rate, and (ii) Company may suspend or terminate the Services and the performance of its obligations under this Agreement. If Customer purchases additional Services during any month the applicable monthly fee shall be prorated for the partial month based on the number of days in the month that the Company provides the Service. If the Customer deletes or terminates any Services during any month, Customer shall pay the entire amount of the monthly fee in respect of such Service for such month and shall not be prorated for the partial month.
5. Taxes. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). Customer will pay all Taxes associated with this Agreement, excluding any taxes based on Company’s net income, property, or employees (“Customer Tax Obligations”). All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”). Customer will pay all Communications Surcharges associated with use of the Services.
6. Term and Termination.
6.1. The term of this Agreement shall commence as of the Effective Date and shall continue for thirty-six (36) months, unless terminated in accordance with the terms set forth herein (the “Term”). Either party may terminate this Agreement, at any time with or without cause by giving the other party thirty (30) days prior written notice. Company shall be entitled to terminate this Agreement, or any Services, in the event of any breach by Customer o this Agreement following written notice to the Customer of such breach and the Customer’s failure to cure the breach within thirty (30) days. Upon termination of this Agreement: (i) Company shall be entitled to be paid, in accordance with the provisions of this Agreement, for all amounts due for Services that have been rendered, and (ii) Customer shall not be entitled to any refund of amounts paid prior to the date of termination. For greater certainty, if this Agreement or any Services, terminate prior to the completion of any month, the Customer shall not be entitled to any proration for the partial month.
6.2. Upon any termination of this Agreement, Customer will return to Company all property belonging to Company, including without limitation all Confidential Information, price lists and similar items.
6.3. Notwithstanding anything to the contrary contained herein, Company may suspend the Services, and Customer’s account access, immediately upon notice to Customer for cause if: (a) Customer materially breaches (or Company believes that Customer has materially breached) this Agreement, including any obligations under the Acceptable Use Policy; (b) there is an unusual and material spike or increase in Customer’s use of the Services and Company believes that such traffic or use is fraudulent ormaterially and negatively impacting the operating capability of the Services; (c) Company determines that provision of the Services is prohibited by applicable law or regulation; or (d) there is any use of the Services by Customer that in Company’s judgment threatens the security, integrity, or availability of the Services. However, Company will use commercially reasonable efforts under the circumstances to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such
suspension; (y) where practicable, limit the suspension based on the circumstances leading to the suspension; and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
6.4. Under no circumstances will Company be liable to Customer by reason of the termination of this Agreement in accordance with the terms of this Agreement, for compensation, reimbursement or damages of whatsoever nature including, without limitation, for (i) indirect or consequential damages, (ii) loss of prospective compensation or earnings, (iii) goodwill or loss thereof, or (iv) expenditures, investments, or any type of commitment made in connection with the business of Customer or in reliance on the existence of this Agreement.
7. Representations and Warranties. Customer represents, warrants and covenants to Company that:
7.1. Customer has the full right, power, and authority to enter into this Agreement and this Agreement is valid, binding, and enforceable in accordance with its terms.
7.2. Customer is not restricted or prohibited, contractually or otherwise, from entering into and performing each of the terms and covenants contained in this Agreement. Customer entering into and performing under this Agreement will not constitute a breach or violation of any other agreement to which Customer is a party or an infringement of any party’s rights. No third party consent is required for Customer to enter into and perform this Agreement.
8. DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO CONDITION OR QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS, CAPACITY OR DURABILITY FOR ANY PARTICULAR PURPOSE OR USE OR NON- INFRINGEMENT, AND EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION, WARRANTIES AND GUARANTEES WITH RESPECT TO THE SERVICES.
9.1. “Confidential Information” means the Company IP and all forms and types of financial, personnel, recruiting, economic, marketing, service, product, operational, sales or customer information of Company that Customer receives or has access to as a result of Customer’s relationship with Company, which has not been previously disclosed to the general public by an authorized Company representative or agent, regardless of whether such information would be enforceable as a trade secret or the copying of which would violate privacy or copyright laws or be enjoined or restrained by a court as constituting unfair competition.
9.2. Customer acknowledges and agrees that Company is entitled to prevent disclosure of its Confidential Information. Customer agrees that during this Agreement and indefinitely thereafter, it will hold in strictest confidence and will not, either directly or indirectly, disclose any of Company’s Confidential Information to any other entity or individual, unless (a) authorized to do so pursuant to the terms of this Agreement or by Company in writing; or (b) required by law to disclose in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the
Customer must give the Company prompt written notice of such required disclosure and obtain or allow for a reasonable effort by the Company to obtain a protective order or other appropriate remedy prior any such disclosure. Customer will provide reasonable cooperation to Company with respect to efforts to protect Confidential Information from any such disclosure. Customer further agrees that it will not, at any time, use Company’s Confidential Information in any manner that may directly or indirectly have anadverse impact upon Company’s business or other third parties, who may have a proprietary or privacy right in such information.
10. Intellectual Property. As between Company and Customer, Company shall own and retain all rights, title and interests in and to the Services the all ideas, analysis, creative concepts, designs, deliverables, processes, methods, scripts, patents, patent applications, inventions, copyrights and copyright materials, business name, logos, trademarks and trade names and other commercial identifiers, trade secrets and know-how relating to the Services together with all of the goodwill associated therewith, derivative works, and all other rights which Company may have at any time created, adopted, used, registered, or been issued world-wide and any data, in anonymized or aggregated form that does not identify Customers or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services (collectively, “Company IP”). Customer acknowledges that it has no right or interest in the Company IP (except as expressly permitted by this Agreement). Customer will not (i) cause or permit its business name to include any of the Company IP or its business to be operated in a manner which is substantially associated with any of the Company IP or (ii) acquire or attempt to acquire, for itself or for others, or grant or attempt to grant, any rights in or to any of the Company IP, either through registration or use.
11. Independent Contractor Relationship. It is the express intention and agreement of the parties that their relationship will be that of independent contractors, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Unless otherwise agreed in writing, neither Company nor Customer will have any authority to bind the other in any respect.
12. Indemnification. Customer hereby agrees to indemnify, defend and hold harmless the Company and its affiliates (and each of their officers, directors, agents, employees, members, managers, shareholders, legal representatives, successors and assigns) from and against any and all demands, claims, actions, proceedings, liabilities, losses, damages, judgments, penalties, costs, or expenses (including reasonable attorneys’ fees, experts’ fees and court costs) (“Claims”) arising from, resulting from or relating to (a) any act, work or thing done, permitted or suffered by Customer or any of their respective agents, employees, officers, or independent contractors of Customer in respect of the Services, (b) any breach or default in the performance of any obligation to be performed by Customer, (c) any breach of any representation or warranty of Customer, and (d) any violations or alleged violations by Customer of any federal, state or local laws, orders, ordinances or regulations (e) any Communications Tax Surcharges or Customer Tax Obligations or any failure by Customer to provide appropriate clearance certificates or otherwise pay any taxes applicable. If any action or proceeding is brought against Company by reason of any of the foregoing indemnified claims, Customer will, upon notice from Company, defend the action or proceeding at Customer’s sole cost by legal counsel reasonably satisfactory to Company. This Section survives any termination or expiration of this Agreement.
13. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, OR ANY OTHER PECUNIARY LOSS) SUFFERED BY CUSTOMER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE SERVICES AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY DURING THE TWELVE MONTHS PRIOR TO THE APPLICABLE CLAIM ARISING. IN NO EVENT WILL COMPANY BE LIABLE, IN ANY WAY, FOR A SERVICE FAILURE, OR LACK OF SERVICE, IN ANY OF THE FOLLOWING SITUATIONS: (A) POWER FAILURE, (B) SUSPENDED OR TERMINATED BROADBAND SERVICE, (C) SUSPENSION OF SERVICES DUE TO BILLING ISSUES, (D) USE OF CERTAIN FEATURES WHICH ARE NOT COMPATIBLE WITH 911 SERVICES, AND/OR (E) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN. EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES, IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT FROM ANY OTHER PROVISION, SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES, AND WILL BE SEPARATELY ENFORCED.
14. 911 Terms and Conditions. Company provides its 911 Services (defined below) subject to the terms and conditions set forth below (the “911 Terms”).
14.1. Definitions. For the purposes of these 911 Terms, the following terms will have the following meanings:
14.1.1. “911 Call(s)” means any call made dialing the digits 9-1-1, regardless of whether such call is made using Basic 911, Enhanced 911, or a PSAP.
14.1.2. “911 Services” means functionality that allows end users to contact emergency services by dialing the digits 9-1-1.
14.1.3. “Approved Uses” means the provision of Enhanced 911 and/or Basic 911 to (a) 911 Users who principally utilize such services at such 911 User’s residence and occasionally at other locations; (b) 911 Users that are enterprises that use either an on-site or PBX during customary business hours and should reasonably be expected to have reasonably customary 911 usage patterns due to the nature of such enterprise’s business or operations; for clarity, the provision of Enhanced 911 service and/or Basic 911service to enterprises that use either an on-site or hosted PBX but operate outside customary business hours, including, without limitation, assisted living facilities, nursing homes and other similar facilities, and to which (c) and/or (d), below, do not apply; or should not reasonably be expected to have reasonably customary 911 usage patterns due to the nature of such enterprise’s business or operations, do not constitute “Approved Uses”; (c) 911 Users that operate non-emergency call center(s) that should reasonably be expected to have only occasional use of 911 due to the nature of such call center’s business or operations; for clarity, central station alarm and other similar call centers that direct calls to emergency services do not constitute “Approved Uses”; and (d) 911 Users that operate call center(s) that support the deaf and/or hard of hearing community, which are more commonly known as “relay services.”
14.1.4. “Basic 911” means the ability to route an emergency call to the designated entity authorized to receive such calls serving the Customer’s Registered Emergency Address. With Basic 911, the 911 professional answering the phone will not have access to the 911 User’s telephone number or emergency address information unless the 911 User provides such information verbally during the emergency call.
14.1.5. “E911 Authority” means a municipality or other state or local government unit, or an authorized agent of one or more municipalities or other state or local government units to whom authority has been lawfully delegated to respond to public emergency telephone calls, at a minimum, for emergency police and fire services through the use of one TTN. For clarity, an E911 Authority may be an individual PSAP, or an entity responsible for the management and operation of multiple PSAPs within a given geographic area.
14.1.6. “911 User” means the individual placing a 911 Call from an 911 User’s TTN (defined below).
14.1.7. “Enhanced 911” or “E911” means the ability to route an emergency call to the designated entity authorized to receive such calls serving the Customer’s provided address and to deliver the Subscriber’s telephone number and corresponding Registered Emergency Address or REA information automatically to the 911 professional answering the call.
14.1.8. “P-Asserted-Identity” means a header field used among trusted SIP entities (typically intermediaries) to carry the identity of the user sending a SIP message as it was verified by authentication.
14.1.9. “Private Branch Exchange” or “PBX” means a telephone system within an enterprise that switches calls between enterprise users on local lines while allowing all users to share a certain number of external phone lines.
14.1.10. “Public-Service Access Point” or “PSAP” means an answering location for 911 Calls originating in a given area. The E911 Authority may designate a PSAP as primary or secondary, which refers to the order in which calls are directed for answering. Primary PSAPs answer calls; secondary PSAPs receive calls on a transfer basis. PSAPs are public safety agencies such as police, fire, emergency, medical, etc., or a common bureau serving a group of such entities.
14.1.11. “Registered Emergency Address” or “REA” means the physical address provided by the Customer to be used for E911 and Basic 911, which may be used to dispatch police, fire, emergency medical and other emergency response resources.
14.1.12. “SIP” means Session Initiation Protocol, which is the signaling protocol used between VoIP networks to establish, control and terminate voice calls.
14.1.13. “Subscriber” means an end user or telephone device assigned a DID.
14.1.14. “Trunk Number” or “TTN” means a United States or Canada telephone number bought by the Customer and assigned to a trunk for use with Company’s elastic SIP trunking service.
14.1.15. “VoIP” means Voice over Internet Protocol. 14.2. Service Description and Use of Service.
14.2.1. E911 Services. With E911, when a Customer places a 911 Call, such call will typically be routed to the local PSAP that covers Customer’s REA. In limited circumstances, as further described below, the 911 Call may be routed to a PSAP. Regardless of which PSAP the 911 Call is routed to, if and only if the associate trunk is properly provisioned, the 911 professional will receive the (1) TTN associated with the 911 Call and (2) Customer’s REA. Customer understands that Customer, and not Company, must properly provision elastic SIP trunking origination services for each trunk associated with each of their TTNs in order for an emergency operator to receive the associated TTN and Customer’s REA.
14.2.2. Basic 911. With Basic 911, when a Customer places a 911 Call, this call is always sent to the local PSAP serving the Customer’s physical location. 911 professionals answering 911 Calls from Customer will not automatically receive the associated TTN or REA because the PSAP to which the 911 Call was routed will not be equipped to receive, capture, or retain Customer’s assigned TTN or REA. Accordingly, Customer must provide both call-back and emergency address information to the 911 professionals. If the 911 Call is dropped or disconnected, or if the Customer is unable to speak, then the 911 professional will not be able to call the Customer back or dispatch emergency assistance to the Customer’s physical location. As additional local PSAPs are able to answer E911 calls, Company may upgrade Customer from Basic 911 to E911 service. Company is not obligated, however, to notify Customer of the upgrade. In limited circumstances, Customers equipped with Basic 911 may have their calls routed to a PSAP, as further described below.
14.2.3. PSAP Service. Certain TTNs will not have access to either Basic 911 or E911 services. If Customer has TTNs that do not have access to either E911 or Basic 911, 911 Calls will be routed to a PSAP. A 911 professional at the PSAP will ask for 911 User’s name, telephone number, and location, and then transfer the 911 User to the appropriate local PSAP or otherwise determine the best way to provide emergency services to the 911 User. As with Basic 911, 911 professionals answering calls in a PSAP willnot receive the 911 User’s TTN or REA because PSAPs are not equipped to receive, capture or retain this information. Accordingly, the 911 User must provide this information to the 911 professional. Other reasons that an 911 User’s 911 Calls may be sent to a PSAP is if (a) there is a problem validating the REA provided by Customer during provisioning, (b) Customer is located in an area that is not covered by the land line 911 network, or (c) Customer has Basic 911 or E911 service but these calls fail to complete and are routed to a PSAP for failover purposes.
14.3. Notwithstanding any term or condition of the Agreement or these 911 Terms to the contrary, Customer will only utilize Company’s E911 and/or Basic 911 services pursuant to these 911 Terms for Approved Uses.
14.4. Customer will not block their TTN on a device they are using when placing a 911 Call and the TTN shall be made available in the From/P-Asserted-Identity SIP headers of the incoming SIP request.
14.5. The parties acknowledge and agree that Company can only provide E911 call routing in territories where the PSAP or E911 Authority offers E911. All other 911 calls made by 911 Users successfully registered in Company’s database will be routed using the ten-digit outbound trunks or a 911 professional.
14.6. Customer will provide Company with and keep current the correct and valid REA for each TTN for which the Customer desires 911 Services. The REA provided must include sufficient information to enable emergency responders to locate the 911 User and must comply with all Multi-line Telephone
System (“MLTS”) requirements applicable to Customer. For example, one MLTS requirement may be that for Customer located in a multi-floor building, Customer must include a floor or suite number as part of the REA. COMPANY WILL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES, OR ANY OTHER CONSEQUENCES CAUSED BY CUSTOMER’S FAILURE TO KEEP ITS INFORMATION UPDATED. Customer will provide a TTN with Customer call presented to Company for processing. Company will have no obligation to provide 911 Services with respect to any Customer call that does not include a TTN and will not be liable for any claims arising from any efforts undertaken by Company to provide 911 Services under such circumstances.
14.7. Customer Obligations. (i) Customer will be solely responsible for compliance with all applicable laws and/or other governmental requirements imposed or required by any state or other applicable governmental authority; and (ii) Customer will inform any party using (or any party that might use) the 911 Services of the difference between traditional 911 and VoIP 911 service in compliance with all applicable laws and/or other governmental requirements imposed or required by any governmentalauthority, including, without limitation, the Federal Communications Commission (“FCC”). For clarity, Company will not be responsible if 911 Service is unavailable due to loss of power; certain features may not be compatible with 911 service; and Company reserves the right to refuse provisioning or modification of features or service if such provisioning or modification adversely affects 911 service.
14.8. Customer Testing. Customer will be solely responsible to test the 911 Services after installation and periodically throughout the 911 Term (as defined in below) and will notify Company if Customer notes any issues at any time with the Service. Customer agrees to test 911 Services and share the results of such testing at the request of Company.
14.9. Equipment; Connection; Customer’s Responsibilities. Company will not provide any equipment or any electronic tools, except as may be expressly set forth in writing and executed by Customer and Company. Customer must connect to Company’s network in a manner and at locations determined by Company. Customer will, at Customer’s sole cost and liability as between Customer and Company, be solely responsible for (i) providing and successfully installing any and all equipment, software and the like necessary for Customer to use any service offered or sold by Company. CUSTOMER WILL INDEMNIFY AND HOLD COMPANY HARMLESS AGAINST ANY AND ALL CLAIMS AND EXPENSES RESULTING FROM THE FAILURE OF CUSTOMER TO COMPLY WITH THIS SECTION.
14.10. Charges and Rates. If applicable, Customer shall pay an additional fee per TTN enabled to use the 911 Services (“911 Fee”). All payments made hereunder shall be made pursuant to the payment terms.
14.11. Term. The term of these 911 Terms shall be the same as the period during which the Company is providing the Services (the “911 Term”).
14.12. DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY’S EMERGENCY SERVICE IS INTERNET-BASED AND THAT INTERNET 911 SERVICES ARE DIFFERENT THAN THAT OF A TRADITIONAL WIRELINE SERVICE. CUSTOMER FURTHER ACKNOWLEDGES THAT THE COMPANY EMERGENCY SERVICE MAY NOT SUPPORT BASIC 911 OR E911 DIALING IN THE SAME MANNER AS A TRADITIONAL WIRELINE PHONE SERVICE. FOR BASIC 911 OR E911 TO BE ACCURATELY ROUTED TO THE APPROPRIATE EMERGENCY RESPONDER, THE CUSTOMER MUST PROVIDE THE REA FOR THE ASSOCIATED TTN IN ACCORDANCE WITH THE CUSTOMER DOCUMENTATION
14.13. CUSTOMER ACKNOWLEDGES THAT THERE ARE POTENTIAL COMPLICATIONS ARISING FROM BASIC 911 OR E911 DIALING. SPECIFICALLY, CUSTOMER ACKNOWLEDGES AND AGREES TO INFORM ALL EMPLOYEES, GUESTS, AND OTHER THIRD PERSONS WHO MAY ALSO BE 911 USERS THAT BASIC 911 AND E911 SERVICES WILL NOT FUNCTION IF THERE IS A SERVICE FAILURE DUE TO ANY OF THE FOLLOWING CIRCUMSTANCES: (A) POWER FAILURE, (B) SUSPENDED OR TERMINATED BROADBAND SERVICE, (C) SUSPENSION OF SERVICES DUE TO BILLING ISSUES, (D) USE OF CERTAIN FEATURES WHICH ARE NOT COMPATIBLE WITH 911 SERVICES, AND/OR (E) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN. COMPANY RESERVES THE RIGHT TO REFUSE PROVISIONING OR MODIFICATION OF FEATURES OR SERVICE IF SUCH PROVISIONING OR MODIFICATION ADVERSELY AFFECTS THE 911 SERVICES.
14.14. CUSTOMER FURTHER ACKNOWLEDGES THAT FAILURE TO PROVIDE A CORRECT PHYSICAL ADDRESS IN THE REQUISITE FORMAT MAY CAUSE ALL BASIC 911 OR E911 CALLS TO BE ROUTED TO AN EMERGENCY SERVICE PROVIDER NOT LOCATED NEAR THE CUSTOMER. FURTHERMORE, CUSTOMER RECOGNIZES THAT USE OF THE 911 SERVICES FROM A LOCATION OTHER THAN THE LOCATION INDICATED IN THE REA MAY RESULT IN BASIC 911 OR E911 CALLS BEING ROUTED TO AN EMERGENCY SERVICE PROVIDER NOT LOCATED NEAR THE CUSTOMER.
14.15. CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER COMPANY, ITS UNDERLYING CARRIER, AND ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY OR ANSWERING OF 911 SERVICES OR IN RESPONDING TO 911 CALLS, NOR THEIR DIRECTORS, MEMBERS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OR AGENTS MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY, OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS) AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE PROVISION OF ALL TYPES OF EMERGENCY SERVICES TO CUSTOMER.
14.16. Indemnification. The following apply in addition to the other terms and conditions of the Agreement, including, without limitation, any applicable indemnity provisions: Customer agrees to release, indemnify, defend, and hold harmless Company, its affiliates, directors, officers, shareholders, employees, and agents from any claims, suits, proceedings, expenses, losses, liabilities, or damages (“911 Claims”) by any party or parties arising out of the use or attempted use of Company’s services by any person for purposes of placing 911 Calls, including (i) Claims of infringement or invasion of the right of privacy or confidentiality of any person or persons; or (ii) all other Claims arising out of any act or omission of Customer or Customer’s services, caused or claimed to have been caused, directly or indirectly, by the installation, operation, failure to operate, maintenance, removal, presence, condition, occasion or use of the 911 Services, features and the equipment associated therewith, or by any services furnished by Company in connection therewith, including, without limitation, the identification of the TTN, address or name associated with the telephone used by the party or parties accessing 911 Services hereunder, the incorrect routing of any 911 Call, or the mishandling of any 911 Call by 911 professionals. Customer will defend Company against any such 911 Claims and will pay, without limitation, all litigation costs, reasonable attorney’s fees and court costs, settlement payments, and any damages awarded or resulting any such 911 Claims.
14.17. Limitation of Liability. The following applies in addition to the terms and conditions of the Agreement, including, without limitation, any applicable limitations of liability: (i) Customer agrees that Company, its directors, officers, members, shareholders, employees, and agents will not be liable for any loss or damage sustained by Customer or 911 Users due to any failure in or breakdown of the
communication facilities associated with providing the 911 Services, or for any delay, interruption, or degradation of the Services whatsoever absent gross negligence or willful misconduct by Company, its directors, members, officers, shareholders, employees, and agents; (ii) in no event will Company’s liability to Customer for any loss arising out of the 911 Services provided pursuant to these 911 Terms or any errors, interruptions, defects, failures or malfunctions of the 911 Services provided pursuant to these 911 Terms, including, without limitation, any and all equipment and data processing systems associated therewith, exceed an amount equal to the total amount paid by Customer to Company during the twelve (12) month period preceding the first incident out of which the liability arose. The parties waive any claim that these exclusions or limitations deprive it of an adequate remedy or cause the Agreement and/or these 911 Terms to fail of its essential purpose; and (iii) Customer further acknowledges, understands and agrees that Company has no control over how a foreign administration or third party carrier establishes its rules and conditions pertaining to international telecommunications service.
15. Data Services. In addition to the other terms of this Agreement, the following terms apply to POTSolve Data Services (“Data Services”) provided under this Agreement:
15.1. Limitation of Liability. COMPANY WILL HAVE NO LIABILITY TO CUSTOMER OR ANY END USER:
15.1.1. IF CHANGES IN THE SERVICE OR IN THE NETWORK, SYSTEMS, OPERATIONS, EQUIPMENT, POLICIES OR PROCEDURES RENDER OBSOLETE OR OUTDATED ANY EQUIPMENT, HARDWARE, DEVICES OR SOFTWARE USED BY THE CUSTOMER IN THEIR PRODUCT OR SERVICE.
15.1.2.FOR ANY CAUSES OF ACTION, LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF (i) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, OR DEFECTS IN FURNISHING SERVICE; (ii) FAILURES OR DEFECTS IN THE NETWORK OR SYSTEMS; OR (iii) USE OF THE CUSTOMER PRODUCT OR SERVICE OR CUSTOMER’S EQUIPMENT.
15.1.3. FOR CLAIMS OR DEMANDS OF ANY KIND OR NATURE, INCLUDING USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, DEFECT, ERROR, VIRUS, OR DELAY IN OPERATION OR TRANSMISSION, ANY FAILURE TO TRANSMIT OR ANY LOSS OF DATA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL COMPANY BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE OR ATTEMPTED USE OF, OR THE INABILITY TO ACCESS, LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY NUMBERS OR DATA SERVICES.
15.2. Limitation of Damages. COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY OF THEIR RESPECTIVE EMPLOYEES OR AGENTS, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES FOR DATA SERVICES.
15.3. Indemnity. Company shall not be liable for, and Customer shall defend, indemnify, hold harmless and forever discharge Company from, all damages (including personal injury or death and damage to property), claims, actions, losses, liabilities and other expenses (including reasonable attorneys’ fees), regardless of the time when they occur, that arise out of any action brought by a third party in connection with (i) it’s or Customer’s use of Data Services or the Customer product or service (used independently or in conjunction with the Service) or any equipment or software used in conjunction therewith; or (ii) any breach or violation of this Agreement by Customer.
15.4. Data Services. Data Services are: 1GB $25 with $15.00 overage. Company Data Services are subject to the following terms and conditions:
15.4.1. Authorized Use. The Data Services are authorized for use in the United States (“Authorized Use”) Use of the Data Services outside of the United States may result additional fees, for example roaming charges. Any additional fees accrued as a result of use that is not an Authorized Use will be billed to and the responsibility of Customer.
15.4.2. Fraudulent Use. It is Customer’s obligation to prevent fraudulent or other unauthorized use of the Data Services. Customer shall promptly notify Company in writing if there is actual or suspected use of the Data Services in violation of this section.
15.4.3. Acknowledgement. Customer agrees and acknowledges:
(a) that Company at any time be engaged directly or indirectly, including through or in connection with products and services of its other customers, in soliciting actual or prospective customers for Data Services or other services or products that could be the same as or similar to and compete with a customer product or service; and
(b) that Customer has had the opportunity to independently investigate the Data Services for use in connection with the Customer product or service and the Authorized Use, and is not relying on any representation, guarantee, or statement of Company as to the viability of using the Data Services in Customers business.
15.4.4. Account Implementation. It may take some time to implement the Data Services or any modifications to the Data Services (including creating any custom pricing, options, features or applications). The specific time frame for implementation is listed below. Company may need certain information from Customer to complete the implementation.
15.4.5. Customer’s Point of Contact; Provisioning and Customer Care Requests. Customer must identify who in its company is authorized to purchase Data Services under this Agreement and to act on its behalf (“Points of Contact”). Unless Customer otherwise notifies Company in writing, these Points of Contact will have full authority to handle all matters related to Data Services. The person signing this Agreement and SOW shall automatically be designated as a Point of Contact. Customer can designate a third party to act as its Point of Contact as long as Customer provides Company with written notice naming the third party and indicating its scope of authority. All ordering/provisioning of Data Services, as well as customer-service requests to Company will be handled in the manner prescribed by Company.
15.4.6. Customer Billing and Payments.
(a) Monthly Bills. Customer’s bills will be available, monthly. Printed paper bills will not be provided. Customer is responsible for all fees, charges, Taxes, and Surcharges for purchases under this Agreement or for Data Services. Monthly billing cycles vary and may not correspond to calendar months. Company may provide billing for third parties, and charges for third-party services and applications that Customer purchases from them will appear on Customer’s bill.
(b) Payment Terms. Customer is required to pay undisputed charges within 30 days of the date of each bill. Company will charge a late fee on past due amounts, to the extent permitted by the law of the state where Company is billed, of 1 1⁄2% per month or $5.00 per month, whichever is greater. If payment is returned by a bank for any reason, Company will charge Customer a reasonable fee.
(c) Disputed Charges. Customer must dispute any charges within 180 days from the due date of the bill by providing written notice to Company, including the date of the bill, the disputed amount, the reason for the dispute, and any supporting documentation. The Parties will make a good faith effort to reconcile the dispute within 60 days of the date of notice.
(d) Failure to Pay. If Customer fails either to make a payment on time or to dispute charges as required, Company may upon prior written notice to Customer, suspend or terminate Data Services, and deny Data Services. If Company sends Customer’s account to a third party for collection, Company will charge a collection fee not to exceed 18% of the principal balance. Company may require Customer to provide a deposit to secure payments under this Agreement. Such a deposit shall not relieve Customer of its obligation to make future payments and shall only bear interest if required by law.
15.4.7. Taxes, Surcharges and Exemptions. If Company is legally required to collect taxes, fees, assessments, or other charges (each, a “Tax”), then Company will bill Customer for those Taxes. If Company incurs an expense (other than a net income tax) in responding to or complying with regulatory or administrative obligations, Company may bill a surcharge to defray that expense (a “Surcharge”). Taxes and Surcharges may change from time to time. If Customer provides Company with an official Tax exemption certificate or with other evidence of exemption Company finds acceptable, then Company will not collect Taxes covered by the exemption. If, however, Customer asks that Company apply an exemption and the exemption is later found not to apply, Customer will be responsible to pay the uncollected Tax, plus interest and penalties. Company does not issue credits for Taxes billed before Company receives evidence of exemption.
15.4.8. Implementation Time – 7 to14 Business days after fulfillment
16. Governing Law; Arbitration. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach or termination hereof will be resolved exclusively by binding arbitration conducted by JAMS (“JAMS”) in accordance with JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”); provided, however, that if the arbitrator determines that the dispute qualifies for the Streamlined Arbitration Rules, then the Rules will instead by the Streamlined Arbitration Rules. The arbitration will be conducted in Hanover County, Virginia, by a single neutral arbitrator and in accordance with the Rules. The arbitrator will have the power to enter any award that could be entered by a judge of the trial court of the Commonwealth of Virginia. The Parties further agree that the arbitrator will decide any disputes related to or arising out of the scope of their agreement to arbitrate or the ability to enforce this provision of their Agreement, and that any dispute between them will be resolved without the inclusion of any other parties to the arbitration proceeding, be it as individuals, or as part of a representative class, unless both Customer and Company agree to such consolidation after a dispute has arisen. The decision of the arbitrator will be final and binding upon all parties. Notwithstanding anything to the contrary, if either party desires to seek injunctive or other equitable relief that does not involve the payment of money, then those claims must be brought in a state or federal court located in Hanover County, Virginia, and the parties hereby irrevocably and unconditionally consent to the exclusive personal jurisdiction of such courts and venue in Hanover County, Virginia in any such action for injunctive relief or equitable relief.
17. Attorneys’ Fees. The prevailing party in any litigation, arbitration, bankruptcy, insolvency or other proceeding (“Proceeding”) relating to the enforcement or interpretation of this Agreement may recover from the other party all costs, expenses, and reasonable attorneys’ fees (including expert witness and other consultants’ fees and costs) relating to or arising out of (a) the Proceeding (whether or not the Proceeding proceeds to judgment), and (b) any post judgment or post award proceeding including, without limitation, one to enforce or collect any judgment or award resulting from the Proceeding. All such judgments and awards will contain a specific provision for the recovery of all such subsequently incurred costs, expenses, and actual attorneys’ fees.
18. Notices. All notices or other communications required or permitted to be given to a party to this Agreement will be in writing and will be sent by electronic mail (return receipt requested), certified mail, postage prepaid, return receipt requested, or sent by an overnight express courier service that provides
written confirmation of delivery, (a) to Company at: 8529 Meadowbridge Rd., Suite 300, Mechanicville, VA 23116; (b) to Customer at its address provided. Each such notice or other communication will be deemed given, delivered and received upon its actual receipt, except that if it is sent by mail in accordance with this Section, then it will be deemed given, delivered and received three (3) days after the date such notice or other communication is deposited with the United States Postal Service in accordance with this Section. Any party to this Agreement may give a notice of a change of its address to the other party to this Agreement.
19. General Provisions.
19.1. Amendment. Company may at its sole and absolute discretion change, add, modify, or delete portions of this Agreement at any time upon prior written notice to Customer no less than thirty (30) days prior to the effective date of the changes; provided, however, Company may not be able to provide at least thirty (30) days prior written notice of material updates to this Agreement that result from changes in law, regulation, or requirements from telecommunications providers. Customer’s continued use, sale, distribution or marketing of the Services following the effective date of the changes shall constitute Customer’s acceptance of the revised Agreement.
19.2. Waiver. No party shall be deemed to have waived compliance by another party of any provision of this Agreement unless such waiver is contained in a written instrument signed by the waiving party and no waiver that may be given by a party will be applicable except in the specific instance for which it is given. The failure of any party to enforce at any time any of the provisions of this Agreement or to exercise any right or option contained in this Agreement or to require at any time performance of any of the provisions of this Agreement by any of the other parties shall not be construed to be a waiver of such provisions and shall not affect the validity of this Agreement or any of its provisions or the right of such party thereafter to enforce each provision of this Agreement. No course of dealing shall operate as a waiver or modification of any provision of this Agreement or otherwise prejudice such party’s rights, powers and remedies.
19.3. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one document.
19.4. Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties related to its subject matter and supersedes all prior proposals, understandings, agreements, correspondence, arrangements and contemporaneous oral agreements relating to the subject matter of this Agreement. No representation, promise, inducement or statement of intention has been made by any party which has not been embodied in this Agreement. This Agreement may be modified only by a written instrument signed by the parties hereto.
19.5. Drafting Ambiguities. Each party to this Agreement has reviewed and revised this Agreement. Each party to this Agreement has had the opportunity to have such party’s legal counsel review and revise this Agreement. The rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or of any amendments or exhibits to this Agreement.
19.6. Severability. Each provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person
or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected by such invalidity or unenforceability.
19.7. Further Assurances. Each party to this Agreement will execute all instruments and documents and take all actions as may be reasonably required to effectuate this Agreement.
19.8. Survival. The terms and provisions regarding indemnification, confidentiality, intellectual property, warranties, limitation of liability and any other section with obligations that may last after termination of this Agreement shall survive the term and termination of this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING. CUSTOMER IS AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT.
POTSolve Services: $25/line of service.
CSG Data Services: 1GB $25 with $15.00 overage/Per Router.
Tier 0 Responsibility: CSG Includes:
– White labeled Knowledge
Tier 1 Responsibility: CSG Includes:
Tier 2 Responsibility: CSG Includes:
Tier 3 Responsibility: CSG Includes: