DEFINITIONS

The following terms mean:

“911 / E911” means functionality that allows End Users to contact emergency services.

“Abandoned Call” means any call attempt that is received by Provider for completion, but which is abandoned and/or canceled by the calling party for any reason prior to completion.

“Agreement” means the Order, any applicable Rate Schedule, and any terms referred to in or attached to the Order; provided, however that this Agreement shall in no event include any purchase order provided by Customer.

“API” mean an application program interface(s) and is the system(s) provided by Provider that enables Customer to remotely transmit requests to Provider’s interfacing system(s) to perform certain transactions.

“Average Call Duration” means the average call duration, as calculated with respect to all Customer’s completed calls in an applicable billing cycle.

“CDR” means a call detail record which is the electronic record of individual telephone calls, and may include such call components as: from, to, date/time, destination, and duration of call.

“Call Signaling” means the process of sending control information during a call. Call signaling may be in band (muting the audio while sending control information) or out of band (on a separate signaling channel (such as SS7) during the call. Provider utilizes Session Initiation Protocol (SIP) Call Signaling, as defined in RFC 3261.

“Call Traffic” means the transmission of telephone calls over Provider’s network, and generally is descriptive of patterns of Usage, such as: time of day, call duration, minutes of use. (May also be known as Voice Traffic).

“CPNI” means Customer Proprietary Network Information and is defined and regulated by the FCC and includes such data as: CDRs, the type of services/network a Customer subscribes to, and any other information that appears on a Customer’s invoice.

“Customer” means the entity identified on the Order.

“Default” means (and will occur), with respect to Customer: (i) if Customer fails to make any payment for Product(s) and/or Service(s) not disputed in good faith pursuant to Section 4 of the Agreement more than two (2) business days immediately after the applicable Due Date, or any other payment contemplated by this Agreement on or before the date two (2) business days immediately after any applicable required date, including, without limitation, pursuant to Section 3(d) of the Agreement; (ii) if Customer (or any customer and/or End User of Customer) violates the AUP; (iii) if Customer fails to perform or observe any term or obligation of this Agreement, including, without limitation, any document incorporated by reference into this Agreement, not otherwise specified in clauses (i) or (ii) above and applicable to the Product(s) and/or Service(s), which failure remains uncured thirty (30) calendar days after Customer’s receipt of written notification from Provider informing Customer of such failure; (iv) upon the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings, by or against Customer, unless such proceedings have been dismissed or discharged not later than the date thirty (30) calendar days immediately after the commencement of such proceeding; (v) upon the making of an assignment for the benefit of creditors, adjudication of insolvency, or institution of any reorganization arrangement or other readjustment of debt plan, of or by Customer; and/or (vi) upon the appointment of a receiver for all or substantially all of Customer’s assets. “Default” means (and will occur), with respect to Provider: (i) if Provider fails to perform or observe any term or obligation of this Agreement, including, without limitation, any document incorporated by reference into this Agreement and applicable to the Product(s) and/or Service(s), which failure remains uncured thirty (30) calendar days after Provider’s receipt of written notification from Customer informing Provider of such failure; (ii) upon the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings, by or against Provider, unless such proceedings have been dismissed or discharged not later than the date thirty (30) calendar days immediately after the commencement of such proceeding; (iii) upon the making of an assignment for the benefit of creditors, adjudication of insolvency, or institution of any reorganization arrangement or other readjustment of debt plan, of or by Provider; and/or (iv) upon the appointment of a receiver for all or substantially all of Provider’s assets.

“DID” or “DID/DOD” means “Direct Inward Dialing” and “Direct Inward Dialing / Direct Outward Dialing” associated with a telephone number assigned by Provider to Customer for use by Customer and/or an End User.

“Effective Date” means the last date on which the Order is signed by the Parties.

“End User” means an entity or individual receiving service from Customer.

“FCC” means the Federal Communications Commission.

“Flat Rate Type” means a fixed per minute pricing format whereby the rate is delineated by Interstate and Intrastate jurisdiction regardless of NPA-NXX or LATA/OCN.

“Inbound Calling” (or “Inbound Calls”) means a call from the PSTN through Provider or another IP endpoint to Customer.

“Interstate” means a call which is originated and terminated in different states.

“Intrastate” means a call which is originated and terminated in the same state.

“IP” means Internet Protocol.

“IP Originated” means traffic utilizing TCP/IP as a transmission protocol from the originating equipment (i.e. SIP phones, SIP PBX, TDM to SIP Gateway, IP-adapter, etc.) to a TCP/IP gateway, for termination to an IP destination or the PSTN.

“LATA” means Local Access Transport Area. A geographic area within a telephone company’s franchised territory which has been established in accordance with the Modification of Final Judgment (MFJ) for the purpose of defining the area within which a telephone company may offer services.

“LATA/OCN Rate Type” means a pricing format where rates per minute are set for each unique OCN within a LATA for Interstate and Intrastate calling.

“LCA” (or “Local Calling Area”) means the local calling area defined geographically by the telecommunications industry standards.

“Local” means any call that originates and terminates within the same Local Calling Area.

“NPA-NXX” means the area code and exchange of a telephone number.

“NPA-NXX-X” means the area code, exchange and first digit of the station code of a telephone number.

“OCN” means Operating Company Number, a four-character code assigned by the National Exchange Carrier Association (NECA) to any telecommunications provider.

“Order” means the executed order between A101 Technology, LLC dba AMP Telecom and Customer for the equipment, services and any other products covered by the order.

“Originating” means the party initiating a call or request for service.

“Origination” or “Voice Origination” means a service which includes TNs to provide Inbound Calling.

“Originating Equipment” means equipment beginning a call session.

“Party” or “Parties” shall mean Provider and Customer.

“Product” means any telephone, routing or other equipment identified in the Order.

“Provider” means A101 Technology, LLC dba AMP Telecom.

“PSTN” means the Public Switched Telephone Network.

“PUC” means a public utilities commission (or other similar governmental agency).

“Rate Schedule” means the Rate Schedule describing the rates applicable to Services posted on Provider’s website, as may be amended from time to time.

“Rate Type” means the rate format option delivered to Customer, which will be either “NPA-NXX-X or LATA/OCN.

“RBOC / Wireless Thresholds Surcharge (Flat Rate Only)” means a surcharge, in addition to Customer’s current rates, applicable if Customer has any quoted Flat Rate Types and less than seventy-five percent (75%) of Customer’s calls terminate on either an RBOC or wireless PSTN during any billing cycle, which Provider reserves the right to charge, and Customer will pay if charged, per minute on the number of minutes needed to meet the seventy-five percent (75%) threshold.

“Service” and “Services” means any telecommunication or other service identified in the Order.

“Short Duration Call” means any call of a duration of less than or equal to six (6) seconds.

“Short Message Service” or “SMS” is the text communication service component of mobile communication systems that allows the exchange of short text messages between fixed line or mobile phone devices.

“SIP” means “Session Initiation Protocol” which is the signaling protocol established in RFC 3261 used between networks (such as VoIP networks) to establish, control and terminate signaling for SIP-based services such as voice calls and SMS messages.

“Tariff” means an open contract between telecommunications carriers and the FCC. Tariffs contain the rates, terms and conditions of certain services provided by telecommunications carriers.

“TCP/IP” means Transmission Control Protocol / Internet Protocol.

“TFN” means a Toll Free number assigned by Provider to Customer (or that Customer ports to Provider) for use with Provider’s Toll Free Service.

“TN” means a telephone number assigned by Provider to Customer (or that Customer ports to Provider) (other than a TFN) and is used by Customer in connection with any applicable Service.

“Toll Free Calling” or “Toll Free” means a call placed to a Toll Free number.

“Toll Free Service” means an IP termination service for PSTN originated calls to terminate to TFNs provided by Provider.

“Usage” means call traffic (including SMS) measured in units, usually in minutes or seconds (except with respect to SMS).

“Voice Termination” means outbound calling from Customer to Provider’s network for purposes of delivering (terminating) the call on the PSTN or another IP endpoint.

“VoIP” means Voice over Internet Protocol.

1. TERM. The term of this Agreement will commence on the Effective Date and will continue for the time period specified in the Order (the “Term”).

 

2. RATES. Pricing of all Product(s) will be set forth in the Order. Pricing of all Service(s) (the “Rates”) will be set forth in the Rate Schedule and may be amended from time to time. Miscellaneous charges and/or fees imposed by any third party carrier or any underlying provider from time to time, whether charged to or against Provider, will be payable by Customer, including, without limitation, any cost recovery fee which will represent an accurate and non-inflated recovery of the miscellaneous charges and/or fees to or against Provider associated with the provision of Service(s) by Provider to Customer. Provider will use commercially reasonable efforts to provide to Customer information regarding any such miscellaneous charges and/or fees, including, without limitation, prior notice of any such charges and/or fees if reasonably practicable under the circumstances.

 

3. PAYMENT.

(a) Payment terms will be set forth in the Order. Customer will pay all invoices within thirty (30) calendar days after the date on the invoice (“Due Date”), which invoice Provider will promptly deliver to Customer. If any Customer payment is not received by any applicable Due Date, Provider may impose a late payment charge of the lesser of (i) 1.5% per month, or (ii) the highest legally permissible rate, and apply such charge to the amount past due. It will not be a defense to nonpayment that all or any portion of charges for Service(s) were incurred by unauthorized users. Customer will reimburse Provider for reasonable attorneys’ fees and any other costs associated with collecting delinquent or dishonored payments. Restrictive endorsements or other statements on checks accepted by Provider will not apply.

(b) Except for taxes based on Provider’s net income (and/or unless expressly provided otherwise in the Order), all applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, including, without limitation, costs allocable or allocated to Provider in connection with any system mandated by any federal, state or local authority if administered by any such federal, state or local authority or by any third party, whether charged to or against Provider, will be payable by Customer, including, without limitation, any cost recovery fee which will represent an accurate and non-inflated recovery of Provider’s, or any underlying provider’s, miscellaneous tax, surcharge, and fee payments to federal, state or local governmental authorities associated with the provision of Service(s) by Provider to Customer pursuant to this Agreement. Provider retains the right to invoice Customer for costs incurred by Provider from time to time related to Provider’s compliance with court orders and other actions of governmental agencies or entities, including, without limitation, subpoenas duces tecum (and similar subpoenas), related to telephone numbers and other information related to or associated with Customer or Customer’s customers and/or End Users if such court orders and other actions of governmental agencies or entities with respect to Customer or Customer’s customers and/or End Users materially exceed customary industry standards.

(c) Provider may require that Customer provide Provider with credit information as requested by Provider. Provider may require Customer to make a security deposit as a condition of Provider’s acceptance of the Order. Provider may, in any combination and at any time: (i) require a security deposit, in an amount determined by Provider, to continue Service(s) and/or provide Product(s) if Provider determines that (x) Customer’s level of credit, as approved by Provider from time to time, is insufficient, (y) the level of expected and/or actual Customer Usage warrants a security deposit, or (z) Customer has failed to timely pay in full for the Product(s) and/or Service(s); (ii) demand immediate payment by wire in accordance with Provider’s instructions (or other prompt means approved by Provider) and/or discontinue Service(s) if Customer’s level of credit, as approved by Provider from time to time, is insufficient; (iii) if Customer fails to make payment pursuant to Section 3(a) or clause (ii) above at any time, Provider may, in addition to any other rights or remedies Provider may have pursuant to this Agreement, immediately suspend or terminate Service(s), any applicable Order(s) (or any portion thereof) and/or this Agreement without prior notice; and/or (iv) if Customer has a pre-payment arrangement and Customer’s pre-paid balance is depleted or such balance is insufficient to cover Customer’s expected and/or actual usage during the time required for Customer to replenish its pre-paid balance, Provider may immediately suspend or terminate Service(s) and/or this Agreement without prior notice.

(d) Provider retains the right to invoice, including any amended or corrected invoices, for Product(s) and/or Service(s) for a period of up to six (6) months after the date Provider provided the Product(s) and/or Service(s) to Customer; provided, however, Provider retains the right to invoice, including any amended or corrected invoices, (i) for a period of up to twelve (12) months with respect to any charges or surcharges pursuant to any applicable Order with respect to any calls and/or Usage sent to Provider by Customer for termination that are not IP Originated; and (ii) for a period of up to nine (9) months with respect to any charges pursuant to any applicable Order with respect to Average Call Duration, any Short Duration Call or Abandoned Calls, any payphone calls, and/or any surcharge. Provider will retain such rights for such period notwithstanding any prior invoices to Customer for the same period(s) and regardless of any otherwise conflicting terms or conditions of this Agreement. For the duration of this period, Provider will not be deemed to have waived any rights with regard to invoicing for the provided Service(s) that are subject to this period, nor will any legal or equitable doctrines apply, including estoppel or laches.

 

4. BILLING DISPUTES. If Customer disputes any invoiced charges, Customer may withhold any amounts disputed in good faith, will pay in full all undisputed charges invoiced by the applicable Due Date, and will promptly provide notice to Provider with: (i) Customer’s complete contact information; (ii) the specific dollar amount in dispute; (iii); detailed supporting reasons for the dispute; and (iv) any supporting documentation, if available. The Parties will work together in good faith to investigate any disputed charges and use commercially reasonable efforts to resolve any payment dispute within thirty (30) calendar days after receipt of such notification from Customer. Any dispute resolved in favor of Customer will be credited to Customer’s next invoice(s); any disputed amounts resolved in favor of Provider will be due and payable by Customer immediately.

 

5. DEFAULT; REMEDIES. Upon the occurrence of a Default, the non-defaulting Party may: (i) if the defaulting Party is Customer, suspend Provider’s performance of any or all Service(s) without liability or further obligation immediately; (ii) terminate any or all Order(s) (or any portion thereof) without liability or further obligation immediately upon written notification of termination to Customer; and/or (ii) terminate this Agreement without liability or further obligation immediately upon written notification of termination to the other Party. All remedies expressed in this Agreement are without exclusion as to any rights or remedies that the parties may have under this Agreement or which may be recognized under controlling law.

 

6. ACCEPTABLE USE POLICY. All use of Service(s) must comply with Provider’s Acceptable Use Policy (“AUP”) posted by Provider from time to time at www.amptelecom.com/legal/aup. The AUP is incorporated herein by reference and subject to change. Provider reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong, including, without limitation, due to or arising as a result of any violation of the AUP.

 

7. TERMINATION.

(a) Customer may terminate this Agreement by written notice to Provider at the Address for Notices below not less than ninety (90) calendar days prior to the end of the Term. Provider will disconnect, or will cause to be disconnected, any Service(s) being cancelled, pursuant to such written notice(s). Customer will notify Provider of any and all requests for termination or disconnection of Services, including, without limitation, the porting out of billable telephone numbers (also referred to as DIDs), whether port outs are known or unknown by Customer; Customer remains solely responsible for all billable charges related to ported out DIDs.

(b) Provider may terminate this Agreement by written notice to Customer at the Address for Notices below not less than thirty (30) calendar days prior to the end of the Term.

(c) In addition to any other rights that Provider has or may have pursuant to this Agreement, including, without limitation, Section 5 above, if Provider determines, in its discretion, that Customer’s use of any Product(s) and/or Service(s) (or the specific method or technology utilized by Customer and/or Customer’s customers and/or End Users) materially and adversely interferes with or otherwise places in jeopardy Provider’s network, other customers, partners and/or the overall business(es) of Provider or any of Provider’s other customers or partners, Provider may suspend or terminate this Agreement and/or any or all Service(s) immediately upon as much prior notification to Customer as is practicable under the circumstances, if any.

(d) Upon termination of this Agreement, Provider may collect from Customer: (i) all amounts due and payable pursuant to this Agreement, including, without limitation, any document incorporated by reference into this Agreement, for Product(s) and/or Service(s) provided prior to such termination, including, without limitation, any past due balance at the time of such termination; (ii) the applicable monthly minimum commitment(s), if any, for any Service(s) for the remainder of the Term, multiplied by the number of months remaining in the initial term for such Service(s) set forth in the Order, pro-rated for any partial months remaining in such term; (iii) in the event that any Product(s) is provided to Customer by Provider free of charge, the cost of such Product(s) divided by the total number of months in the term and multiplied by the months remaining in the term after termination; and (iii) any early termination charges, if any, specified in any applicable Order(s) or any other document or agreement between Customer and Provider (“Early Termination Charges”). Customer acknowledges and agrees that the damages arising due to the early termination of this Agreement would be difficult to determine and, therefore, for the sake of efficiency, economy and convenience, any Early Termination Charges constitute liquidated damages and are not intended as a penalty or to be punitive in nature.

 

8. CUSTOMER AND PROVIDER OBLIGATIONS.

(a) Provider may from time to time interrupt or otherwise impact Service(s) for routine maintenance. Provider will make commercially reasonable efforts to provide to Customer reasonable advance notification (via phone, email or other means) of such maintenance. Provider will use commercially reasonable efforts to perform such maintenance in a manner that will not unreasonably interrupt Service(s). Provider normally will perform maintenance between the hours of 12:00 AM and 6:00 AM central time. If Provider determines that emergency maintenance is necessary for any reason, Provider will make commercially reasonable efforts to notify Customer with respect to the anticipated down-time and/or other information pertinent to the affected Service(s). Customer will provide Provider contact(s) for communications contemplated by this Section 8(a). Customer authorizes Provider to monitor and record calls to or from Provider concerning the Services for Provider’s training and quality control purposes.

(b) Unless the terms of the Order expressly provides otherwise, Provider may amend or modify Service(s), any Rate Schedule(s) and/or any addendum(a) attached or applicable to any Service(s) or the Order thirty (30) calendar days after written notice to Customer. However, except as otherwise expressly provided in this Section 8(b), if the amendment or modification (i) materially adversely affects any applicable Service(s), or (ii) increases the cost of such Service(s) more than ten percent (10%) of the total sums to be paid by the Customer for the Service(s) specified in the Order (except as otherwise provided below), Customer may terminate the Order without obligation for any otherwise applicable Early Termination Charge by written notice delivered to Provider not later than the date thirty (30) days immediately after Customer’s receipt of Provider’s written notice of such amendment or modification. If Customer terminates the Order pursuant to the immediately preceding sentence, Customer will pay Provider promptly all amounts due and payable pursuant to this Agreement for Service(s) provided prior to such termination. If Customer does not notify Provider of the termination of the Order prior to the date thirty (30) days immediately after Customer’s receipt of Provider’s written notice of such amendment or modification, Customer will be deemed to have received and accepted such amendment or modification. Notwithstanding the foregoing provisions of this Section 8(b), Customer will have no right to terminate if the applicable amendment or modification (i) is imposed or required by any governmental, industry, regulatory or other similar authority; (ii) increases the costs of any Service(s) attributable to fees, taxes or any other charges imposed or required by any governmental, industry, regulatory or other similar authority, or (iii) is expressly provided for under the terms of this Agreement.

(b) Customer must connect to Provider’s network in a manner and at locations determined by Provider. Subject to Provider’s prior written approval, the connection may be made: (i) via the Public Internet, and/or (ii) via a dedicated interconnection to Provider’s network if agreed upon by the Parties. Customer will, at Customer’s sole cost and liability as between Customer and Provider, be solely responsible for (i) providing and successfully installing any and all equipment, software and the like necessary for End Users to use any service offered or sold by Customer; (ii) obtaining and providing to Provider, prior to installation of any applicable Service(s), the IP address(es) for any applicable proxy server, Customer application and/or any other applicable hardware/software solution; and (iii) any and all support for any End User to which Customer offers or sells services. CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, COSTS OR DAMAGES OF WHATEVER NATURE ARISING FROM OR RELATING TO THE FAILURE OF CUSTOMER AND/OR ANY CUSTOMER AND/OR RESELLER OF CUSTOMER TO COMPLY WITH THIS SECTION 8(b).

(c) Customer and Provider will reasonably cooperate with each other to test to ensure interoperability between Provider and Customer’s networks and systems. All necessary interoperability testing will be completed within a reasonable time not to exceed thirty (30) calendar days after the Effective Date. If after completion of initial interoperability, Customer plans to make upgrades, updates and/or enhancements (collectively “Configuration Changes”), Customer will notify Provider prior to implementing a Configuration Change so that Customer and Provider may work together in good faith to determine how best to proceed regarding such Configuration Change. If at any time an interoperability condition occurs that adversely affects Provider’s network that cannot be adequately remedied within a reasonable period of time, taking into consideration the severity of the interoperability condition and the effect on Provider’s network, Provider may, at its sole discretion, suspend the provision of the Services.

(d) From time to time, Provider may request from Customer a forecast of expected origination Usage volumes and/or TN procurement. Customer will cooperate with such requests. In the event Customer anticipates changes in origination Usage volumes, Customer will proactively contact Provider to review such changes. Provider will use commercially reasonable efforts to maintain adequate capacity to meet Customer provided forecasts. Provider’s failure to adequately provide capacity, regardless of reason, will not constitute a breach of this Agreement.

(e) Provider will exercise commercially reasonable efforts to gain access to requested TN quantities, but Provider does not guarantee TN availability. Provider may, upon fourteen (14) business days prior written notice, reclaim any TNs that have not been used to pass traffic within the immediately preceding 120 day period. Provider will not reclaim a TN without prior written notice to Customer.

(f) Provider will require a completed and signed Letter of Authorization (“LOA”) for any existing telephone numbers Customer wishes to port from another carrier to Provider. Provider may require a recent copy of the current phone bill which contains Customer’s Billing Telephone Number (“BTN”) as well as a record of any numbers that need to be ported. Provider must receive necessary LOA(s) and/or bill copy(ies) before Provider will initiate a port request and obtain a Confirmed Port Date. The “Confirmed Port Date” is the date upon which the current voice provider has agreed to port a number(s) to Provider. The Confirmed Port Date interval may in some cases take as long as one (1) to two (2) business weeks after Customer initiates the port request; since the port interval is a product of the accuracy of the information provided to Provider by Customer, as well as the processing speed of Customer’s current voice provider, Provider makes no guarantees regarding the promptness of a port, however all ports will be provided consistent with applicable law.

(g) If Provider makes CDRs available to Customer via an API at any time, Customer will obtain API documentation from Provider. Provider does not guarantee CDR availability, nor does it warrant the accuracy of the data available via API; the failure to provide CDRs, regardless of reason, will not constitute a breach of this Agreement.

(h) The following applies to Toll Free Service only:

(i) General: Provider is the Responsible Organization for TFNs for Toll Free Service. Toll Free Service may be used only as a toll-free inbound-only service and does not provide any outbound calling, 911 / E911 service, 411 or any Operator Services. Customer will not use (or reconfigure to support such use) either Toll Free Service or any TFN obtained from Provider in connection with Toll Free Service for any outbound calls placed by Customer or Customer’s End Users, or any Improper Calls. In addition to any rights or remedies that may be available pursuant to the Agreement and/or the AUP, Provider may immediately take any action to prevent Improper Calls, including, without limitation, denying Toll Free Service to particular numbers or terminating any Toll Free Service. If Customer uses or reconfigures Toll Free service to place outbound calls, Customer will pay Provider for any such calls at Provider’s then-current applicable Rates. CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COSTS OR DAMAGES OF WHATEVER NATURE ARISING FROM OR RELATING TO CUSTOMER’S USE (AND/OR THE USE BY ANY CUSTOMER AND/OR RESELLER OF CUSTOMER) OF TOLL FREE SERVICE IN VIOLATION OF THESE TERMS AND CONDITIONS.

(ii) Regulatory Matters: If any calls placed to Customer via Toll Free Service contain a privacy indicator imposed by the originating telephone subscriber, Provider will provide call detail information to Customer, notwithstanding the privacy indication; provided, however, Customer acknowledges and agrees that (x) Customer will use the telephone number and billing information for billing and collection, routing, screening and completion of the originating telephone subscriber’s call or transaction; (y) Customer will not reuse and/or sell the TFN or billing information without first notifying the originating telephone subscriber and obtaining affirmative written consent of such subscriber for such reuse or sale; and (z) except as permitted in (x) or (y) above, Customer is prohibited from using any information derived from ANI, CPN or the charge number service for any purpose other than (A) performing services or transactions that are the subject of the originating subscriber’s telephone number; (B) ensuring network performance, security and the effectiveness of call delivery; (C) compiling, using and disclosing aggregate information; and (D) complying with applicable law or legal process.

(i) Customer will not participate in or assist in any fraudulent origination Usage, in any form or by any means, either by itself or any of its End Users. If Customer suspects, knows of, or should have known of any fraudulent origination Usage, Customer will immediately stop all fraudulent origination Usage and notify Provider. Customer acknowledges, understands and agrees that Provider does not provide, is not required to provide, and does not warrant, any fraud prevention. If Provider becomes aware of unusual Usage volumes or patterns, Provider will make commercially reasonable attempts to promptly notify Customer; for clarity, Provider will not be deemed to be aware solely due to the availability of information regarding Usage volumes or patterns in any of Provider’s applicable systems. Provider’s sole obligation to Customer with respect to any actual, alleged or suspected fraudulent origination Usage will be to reasonably cooperate with Customer, upon Customer’s request and at no expense to Provider, to assist Customer’s efforts to stop any fraudulent origination Usage that Customer reports to Provider. Customer will be solely responsible for all risks, expenses and liabilities arising from or relating to fraudulent origination Usage by Customer, Customer’s End Users, or any other person or entity directly or indirectly utilizing the Services. Notwithstanding anything in this Section 8 to the contrary, Customer is and will remain solely responsible for any and all origination Usage, fraudulent or otherwise, and the terms and conditions of this Agreement will apply.

(j) Customer (i) will be solely responsible for and will undertake all required action(s) before the FCC, any PUC, any state regulatory agency, any court or any other controlling regulatory bodies, agencies, commissions or other authority; (ii) will obtain any required governmental approval(s); and (iii) will fully comply with any and all applicable laws and regulations, including, without limitation, all applicable FCC requirements, such as CALEA and CPNI, in each case as such actions, approvals and/or laws and regulations apply or relate to the utilization of the Services by Customer, Customer’s End Users, or any other person or entity to which Customer provides any services utilizing the Services.

 

9. LIMITATION OF LIABILITY; NO WARRANTIES; INDEMNIFICATION.

(a) Unless caused by Provider’s willful misconduct or gross negligence, Provider will not be liable for (i) delays in the installation, commencement or restoration of any Service(s); (ii) any temporary or permanent cessation of any Service(s); (iii) errors, malfunctions, delays or defects in the transmission of any Service(s); and (iv) to the fullest extent permitted by applicable law, for injury to or death of any person and/or damage to or loss of any property arising out of or attributable to any Service(s) and/or performance pursuant to this Agreement. Provider will not be liable for loss or damage occasioned by any Force Majeure Event.

(b) Except due to (i) damages caused by Provider’s willful misconduct or gross negligence; (ii) Provider’s breach of its obligations pursuant to Section 18 below; and/or (iii) with respect to any indemnification obligation of Provider, the aggregate liability of Provider hereunder, for any and all causes of action and/or claims, liabilities (including reasonable attorneys’ fees), expenses, damages, costs or losses arising out of or relating to this Agreement, whether based in contract, warranty, negligence or otherwise, including, without limitation, intellectual property infringement (if any indemnity is expressly provided pursuant to Section 9(f) below)), will in no event exceed (i) except as provided in clause (ii) below, in the aggregate an amount equal to the lesser of $500 or the amount invoiced by Provider for Service(s) rendered during the calendar month prior to the calendar month in which the event giving rise to liability occurred; or (ii) if applicable, the replacement value of any Customer Equipment (as defined below) lost or damaged as a result of Provider’s willful misconduct.

(c) EXCEPT DUE TO (I) DAMAGES CAUSED BY A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, (II) A PARTY’S BREACH OF ITS OBLIGATIONS PURSUANT TO SECTION 18 BELOW AND/OR (III) WITH RESPECT TO ANY INDEMNIFICATION, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS OR HARM TO BUSINESS AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY RELEASES THE OTHER PARTY, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES AND AGENTS FROM ANY SUCH CLAIM TO THE EXTENT EXCLUDED BY THE FOREGOING EXCLUSION OF NON-DIRECT DAMAGES. WITH RESPECT TO ANY INDEMNIFICATION, THE INDEMNIFYING PARTY ONLY WILL BE LIABLE TO THE OTHER PARTY FOR THE LOSSES INCURRED BY THE INDEMNIFIED PARTY AND SUBJECT TO INDEMNIFICATION. THE PARTIES WAIVE ANY CLAIM THAT THE EXCLUSIONS OR LIMITATIONS OF THIS SECTION 9 DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.

(d) PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE PRODUCT(S) AND SERVICE(S) (INCLUDING CUSTOMER EQUIPMENT, AS DEFINED BELOW) PROVIDED PURSUANT TO THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE SERVICE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE(S) WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICE(S) WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. PROVIDER EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED WITH THE USE OF THE SERVICE(S). CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER’S OR ITS CUSTOMER’S AND/OR END USER’S USE OF THE SERVICES, INCLUDING ANY INFORMATION TRANSMITTED, PROVIDED BY PROVIDER. PROVIDER HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE ACTIONS OF THIRD- PARTY TELECOMMUNICATIONS SERVICE PROVIDERS.

(e) EXCEPT AS OTHERWISE SET FORTH OR PROVIDED UNDER THIS AGREEMENT, THE PRODUCT(S) AND SERVICE(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

(f) Each Party will defend, indemnify and hold the other Party, its subsidiaries and affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from and against any and all actual or alleged costs, damages, expenses, losses, and/or liabilities of any kind, including, without limitation, reasonable attorneys’ fees, arising from any action, claim, suit or proceeding commenced by any third party for damages to any tangible property or bodily injury to or death of any person arising out of or caused by the indemnifying Party’s gross negligence or willful misconduct, except for those costs, damages, expenses, losses, and/or liabilities of any kind contributorily caused by any act or omission of the indemnified Party or its directors, officers, employees, agents or unless otherwise specified in this Agreement. The indemnified Party will promptly notify the indemnifying Party in writing of any such action, claim, suit or proceeding. The indemnifying Party will control the response to any such action, claim, suit or proceeding and the defense thereof, including, without limitation, any agreement relating to the settlement thereof. In addition to the foregoing general indemnity, Customer will at all times defend, indemnify and hold Provider, its subsidiaries and affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from all claims arising out of or due to the utilization by any other person or entity to which Customer provides any services in connection with or utilizing any Service provided to Customer pursuant to this Agreement (including, without limitation, any of Customer’s customers and/or End Users), including, without limitation, due to (i) the failure of Customer or any of Customer’s customers and/or End Users to comply with any applicable laws; (ii) claims for libel, slander, and/or invasion of privacy; (iii) claims for infringement of copyright and/or trademark; (iv) claims for infringement of patents arising from combining or using services or equipment furnished by Provider with services and/or equipment furnished by any other person or entity; and (v) claims arising from any failure, breakdown, interruption or deterioration of service provided by Provider to Customer or by Customer to Customer’s customers and/or End Users. Customer will indemnify and hold harmless Provider from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including, without limitation, reasonable attorneys’ fees) on the part of or which may be incurred by Customer, Provider or any third-party relating to or arising from the use or operation of the Customer Equipment (as defined below). Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with or arising due to the unauthorized access to or use of the Service(s) by any third-party through or in connection with the Customer Equipment, whether or not such unauthorized access is accidental, intentional, unintentional, or by fraud and whether or not Customer had or should have had knowledge of such unauthorized access. In all such cases of unauthorized access, Customer retains full and sole responsibility for any and all charges for the Service(s) provided by Provider incurred due to such unauthorized access.

 

10. EQUIPMENT AND ELECTRONIC TOOLS.

(a) Customer has the sole and exclusive responsibility for the installation, configuration, security (including, without limitation, firewall security policies, even if Customer uses a third party to configure and implement such measures), and integrity of all Customer facilities, systems, equipment, proxy servers, software, networks, network configurations and the like (the “Customer Equipment”) used in conjunction with or related to the Service(s) provided by Provider, including, without limitation, Customer’s connectivity to Customer’s customers and/or End Users.

(b) If Provider grants Customer access, either by online access, by API or access by any other means, to a service ordering/ management system and/or any other electronic tools or computer software in connection with the Service(s) or the use of any Service(s) (collectively, the “Electronic Tools”), the following apply:

(i) Subject to Customer’s compliance with this Agreement, Provider grants Customer a non-exclusive, non-transferable license to use such Electronic Tools solely in connection with Customer’s internal use of the Service(s) during the Term. The Electronic Tools may be incorporated into, and may incorporate itself, software and other technology owned or controlled by third parties. Any such third party software or technology incorporated in such Electronic Tools falls under the scope of this Agreement. Any and all other third party software will be subject to Customer’s acceptance of a license agreement with such third party. Customer will use the Electronic Tools solely for lawful purposes in connection with Customer’s internal use of the Service(s) during the Term. Customer will not, directly or indirectly: (A) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Electronic Tools; (B) modify, translate or create derivative works based on the Electronic Tools; (C) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the Electronic Tools or make the Electronic Tools available to any third party; (D) use the Electronic Tools for timesharing or service bureau purposes or otherwise for the benefit of a third party; (E) remove any proprietary notices or labels on any Electronic Tools; or (F) copy, reproduce, post or transmit any Electronic Tools in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means.

(ii) Each Electronic Tool is the intellectual property of Provider. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or in connection with any Electronic Tool. Any third party intellectual property included in any Electronic Tool is the property of the respective owner of such intellectual property and may be protected by applicable law. Nothing in this Agreement gives Customer any right or license to any trademarks and/or trade names (whether registered or unregistered), signs, logos, icons, slogans, banners, screen shots, trade dress, links or other brand features of Provider, without the prior written consent of Provider, which consent may be withheld in Provider’s sole discretion for any reason. If Customer from time to time provides suggestions, comments and/or other feedback to Provider with respect to the Service(s) and/or any Electronic Tool, Provider may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and/or exploit any such suggestions, comments and/or other feedback in any manner and without any obligation or restriction based on intellectual property rights or otherwise. Provider will retain sole ownership of any such suggestions, comments and/or other feedback and Customer will not provide any such suggestions, comments and/or other feedback subject to any terms that would impose any obligation on Provider or any of its customers or partners. Customer agrees to (and to cause its employees, agents and contractors to) sign, execute and acknowledge documents and perform such acts as may be reasonably necessary to perfect the foregoing assignment and to obtain, enforce and defend Provider’s intellectual property rights in connection with any Electronic Tool.

(iii) Customer is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through or with such Electronic Tools. Customer is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Electronic Tools, and to only allow authorized use of the Electronic Tools to persons that Customer designates.

 

11. SERVICE OUTAGES.

When Customer believes that a loss or material degradation of any Service(s) has occurred (“Service Outage”), Customer will first conduct customary problem isolation, resolution and troubleshooting activities. If Customer believes that the Service Outage is attributable to or related to Provider or Provider’s network, Customer will notify Provider through Provider’s website or such other means Provider may provide to Customer from time to time by written notice, or by any Electronic Tools provided by Provider from time to time, to report the Service Outage(s) and initiate an investigation of the cause and remedy of such Service Outage (“Trouble Ticket”). Once a Trouble Ticket(s) has been opened, Provider’s appropriate personnel will initiate diagnostic testing and isolation activities to determine the source and severity of the Service Outage(s) and suggest a remedy to, or enact a remedy on behalf of, Customer; Provider and Customer will cooperate to restore Service(s) as soon as reasonably practicable. In the event a Service Outage occurs that is exclusively within Provider’s control, Provider will reduce Customer’s next invoice by an amount equal to one quarter of one percent (0.25%) of the non­metered Services billed to the Customer for every tenth of a percent (0.1%) of service interruption (43.2 minutes in a rolling 30 day period) beginning on the second tenth of a percentage of service interruption up to the full amount of the non­metered services billed to the customer.

 

12. FORCE MAJEURE.

If either Party’s performance under this Agreement is delayed, prevented, obstructed or inhibited because of any act of God, governmental action or any other cause beyond either party’s reasonable control (“Force Majeure Event”), such Party will not be in default of this Agreement; provided, however, such Party will exercise commercially reasonable efforts to prepare for, perform in spite of, and resume performance after the Force Majeure Event. For avoidance of doubt, Customer will ensure proper protection and conformity to industry standards to protect the integrity of Customer’s network; Customer’s failure to do so for any reason will not be considered a Force Majeure Event and any incurred charges for Service(s) will be deemed valid and due in accordance with the terms of this Agreement. If a Force Majeure Event materially impacts performance for ten (10) business days or more (“Extended Delay”), either Party may terminate the affected Service(s) without penalty or further obligation upon written notification to the other Party. During a Force Majeure Event, all payment obligations will abate with respect to the impacted Service(s).

 

13. GOVERNING LAW; MANDATORY ARBITRATION AND NO JURY TRIAL.

(a) This Agreement will be governed by, construed under and enforced in accordance with the laws of the State of Texas without regard to its conflict of law principles. Each Party will obtain, file and maintain any necessary permits, certifications, authorizations, licenses or similar documentation as may be required by any governmental authority having jurisdiction over its business.

(b) The Parties acknowledge and agree that any dispute or claim relating to the interpretation or performance of this Agreement shall be resolved at the request of either party through binding arbitration conducted in accordance with the then­existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Austin, Texas before a single mutually acceptable arbitrator. If the parties are unable to mutually select an arbitrator after 30 days, the American Arbitration Association shall appoint one arbitrator. The arbitrator’s decision will be final and binding, and judgment thereon may be entered by the state or federal court having jurisdiction. The parties intend that this ARBITRATION PROVISION be irrevocable. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRATION PROCEEDINGS IN, AUSTIN, TEXAS. CUSTOMER AGREES THAT ANY PROCEEDINGS OF ANY KIND WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. CUSTOMER WILL NOT BE A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING.

 

14. CHANGE IN LAW.

If any statute, regulation, decision, rule or order by a court of law or governmental authority, including, without limitation, the FCC or any state regulatory agency or PUC: (a) prohibits performance pursuant to this Agreement, (b) makes such performance illegal, impossible or impractical, or (c) materially adversely impacts either Party’s performance of its obligations under this Agreement, including, without limitation, the costs incurred by a Party to perform its obligations under this Agreement, the Parties will use their commercially reasonable efforts, to amend this Agreement so that: (i) performance pursuant to this Agreement is no longer prohibited, illegal, impossible, impractical or is no longer materially adversely impacted, and (ii) the Agreement preserves, to the maximum extent possible, the original intent of the Parties. If the Parties are unable to amend this Agreement as contemplated above, then the Party whose performance or use of Service(s) is rendered prohibited, illegal, impossible, impractical or materially adversely impacted may, in its sole discretion and upon thirty (30) calendar days (or less if required by law) prior written notification to the other Party, cease performance of any such obligations or Service(s) pursuant to this Agreement without further obligation or liability, excluding payment of any charges for Service(s) received by Customer prior to notification of change in law. The Parties will continue to perform all such obligations and Service(s) under this Agreement that are not so prohibited, impossible, impractical or materially adversely affected; provided, however, if a material part of the rights and obligations under this Agreement are suspended in accordance with the above and the performance of the remaining obligations would not reasonably maintain the respective original intent of the Parties or would not serve the essential purpose of this Agreement, then either Party will have the right to, at its sole discretion and upon thirty (30) calendar days written notification to the other Party, terminate this Agreement without further obligation or liability, excluding payment for charges for Service(s) received by Customer prior to termination of this Agreement.

 

15. TARIFF APPLICATION.

Both Parties acknowledge that the Service(s) provided may be subject, in whole or in part, to one or more provisions of state or federal tariffs. In the event of any conflict between any provision of this Agreement and any such tariff(s), such tariff(s) will prevail.

 

16. CONFLICT OF TERMS AND SEVERABILITY.

Except as expressly provided in Section 15, the Order and/or any Rate Schedule(s) or addendum(a), if this Agreement conflicts with any terms or conditions incorporated by reference into this Agreement, this Agreement will control. If any provision of this Agreement is held invalid, illegal or unenforceable, the unaffected provisions will remain in full force and effect.

 

17. CONFIDENTIALITY; PUBLICITY.

(a) This Agreement and its terms, together with any attachments, including, without limitation, the Order and any applicable Rate Schedule(s), but excluding only such information that may be available to the public on Provider’s website from time to time, is designated as proprietary and confidential information of Provider. The Parties agree that such information will not be disclosed by Customer, either directly or indirectly, by any means, to any third person(s) without the express written permission of Provider. In the event disclosure is mandated by court order, subpoena, a governmental authority, or under law, Customer will give prompt written notice to Provider prior to any such disclosure and cooperate fully to obtain any protective order or other form of confidentiality protection sought by Provider prior to any such disclosure, except when Customer is lawfully compelled to maintain confidentiality pursuant to such court order, subpoena, governmental authority or law. Customer agrees and understands that Provider may, upon receipt of inquiries from law enforcement agencies and other governmental authorities, inform such agencies and authorities of Customer’s identity and contact information to facilitate the service of subpoenas or other inquiries directly to Customer. Customer agrees and understands that it may be necessary for Provider in the course of providing the Service(s) to access, use or disclose Customer or Customer’s customers and/or End Users’ information, including, without limitation, pursuant to subpoenas duces tecum (and similar subpoenas) or court orders and other actions of governmental agencies or entities. To the extent agreed to by the Parties in writing from time to time, Customer or Provider may further designate as proprietary or confidential such information as set forth in a Confidentiality Agreement, if any. During the performance of this Agreement, it may be necessary for Provider to transfer, process and store billing and utilization data and other data necessary for Provider’s operation of its network and for the performance of its obligations under this Agreement. The transfer, processing and storing of such data may be to or from the United States. Customer hereby consents that Provider may transfer, store and process such data and use such data for its own internal purposes and as allowed by law.

(b) Notwithstanding any term or condition of this Agreement to the contrary, Customer grants Provider the right to use Customer’s name, mark and logo on Provider’s website(s) and in Provider’s marketing materials and to publicly identify Customer as Provider’s customer from time to time.

 

18. REPRESENTATIONS AND WARRANTIES OF THE PARTIES; INDEPENDENT CONTRACTOR; COMPLIANCE WITH LAWS.

Provider represents and warrants to Customer that Provider has the right to provide the Service(s) specified herein, is duly organized and validly exists in good standing under the laws of its state of incorporation, with the ability to enter into and perform its obligations under this Agreement in accordance with its terms and conditions, including any documents incorporated by reference into this Agreement. Customer represents and warrants to Provider that Customer is duly organized and validly exists in good standing under the laws of its state of incorporation, with the ability to enter into and perform its obligations under this Agreement in accordance with its terms and conditions, including any documents incorporated by reference into this Agreement. Each Party agrees that it will perform its obligations hereunder as an independent contractor and not as the agent, employee or servant of the other Party and that no joint venture or partnership is or has been expressed or implied. Customer will comply with all laws and regulations applicable to Customer and/or Customer’s utilization of any Services; Customer will be directly responsible for compliance with applicable laws and regulations as such laws and regulations relate to Customer, Customer’s utilization of any Services, Customer’s customers and/or End Users’ utilization of any Services, and/or the utilization by any other person or entity to which Customer provides any services in connection with or utilizing any Service provided to Customer pursuant to this Agreement.

 

19. ASSIGNMENT.

Customer may not assign its rights or obligations under this Agreement without the express written consent of Provider. Notwithstanding the foregoing, Customer may assign its rights and obligations under this Agreement to a successor in a merger, acquisition or restructuring of Customer without consent of Provider.

 

20. 911 / E911 MATTERS.

(a) CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT PROVIDER’S VOICE SERVICE IS INTERNET BASED AND THEREFORE 911/E911 SERVICES ARE DIFFERENT FROM TRADITIONAL WIRELINE BASED SERVICES AND ARE OR MAY BE ONLY PROVIDED WITH CERTAIN SERVICES IF SPECIFICALLY DEFINED IN ADDENDUM(S), EXHIBIT(S), SCHEDULES, SOWS, TERMS AND CONDITIONS, SERVICE AGREEMENTS, AND ATTACHMENTS TO THIS AGREEMENT, AND APPLICABLE ONLINE TERMS & CONDITIONS, ALL OF WHICH ARE FULLY INCORPORATED HEREIN BY REFERENCE.

(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER PROVIDER, ITS UNDERLYING CARRIER(S), NOR ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY, OR ANSWERING OF EMERGENCY SERVICES OR IN RESPONDING TO EMERGENCY CALLS, NOR THEIR OFFICERS OR EMPLOYEES, MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) 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. CUSTOMER FURTHER AGREES AND ACKNOWLEDGES THAT IT IS INDEMNIFYING AND HOLDING HARMLESS PROVIDER, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM ANY CLAIM OR ACTION FOR ANY CALLER PLACING SUCH A CALL WITHOUT REGARD TO WHETHER THE CALLER IS AN EMPLOYEE OR CUSTOMER OF CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY INJURY ARISING OUT OF A LACK OF OR MISROUTING OF 911 CALLS, REGARDLESS OF WHETHER THE CALL FAILED OR WAS ROUTED BY A PUBLIC SAFETY ANSWERING POINT OR AN OFFICIAL EMERGENCY OPERATOR, IS NEITHER THE FAULT NOR LIABILITY OF PROVIDER AND CUSTOMER HOLDS PROVIDER AND ITS SUBSIDIARIES AND AFFILIATES, AS WELL AS THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES AND AGENTS, HARMLESS FROM ANY DAMAGES OR LIABILITIES. THE LIMITATIONS APPLY TO ALL CLAIMS REGARDLESS OF WHETHER THEY ARE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY OTHER THEORIES OF LIABILITY.

 

21. SERVICE MOVES.

Service(s) may not be moved from a contracted Service address without written notification from Customer to Provider. Should Customer fail to notify Provider of a service move, then Provider, in its sole discretion, may immediately suspend any applicable Service(s) until such time as Provider processes a “move order” initiated by Customer. Failure to notify Provider of an intended service move may result in Service(s) being 911/E911 non-compliant, if otherwise applicable. Customer understands that said failure may cause incorrect routing of emergency services and any consequences of such rest solely with Customer. Additionally, Customer understands that continuation of Service with respect to any existing DIDs may be restricted by the location of the moved service.

 

23. THIRD PARTIES.

The Parties do not intend by the execution, delivery, or performance of this Agreement to confer any benefit, incur any obligation or duty under law or otherwise, direct or incidental, upon any third-party, person or entity not a party to this Agreement, including, without limitation, Customer’s customers and/or End Users. Customer is solely responsible for all pricing, billing and collections, and/or compliance with any applicable laws or regulations related to any services Customer provides to its End Users or any other person or entity to which Customer provides any services utilizing the Services. Customer will provide technical support to Customer’s End Users and will conduct customary problem resolution and troubleshooting activities directly with Customer’s End Users to determine whether any condition affecting any Services is attributable to Provider’s network prior to reporting a Service Outage pursuant to this Agreement.

 

24. NON-EXCLUSIVE AGREEMENT.

This Agreement is not exclusive. Except as may be expressly provided in the Order with respect to Customer only, nothing in this Agreement will prevent Customer or Provider from entering into similar arrangements with, or otherwise providing services to, any other person or entity.

 

25. NOTICES.

Any notice(s) by a party as set forth in this Agreement will be sent to each Party at the address provided on the Order. Unless expressly provided otherwise in this Agreement, notice will be deemed to be delivered when sent via one or any combination of the following: (i) email address(es) of record, (ii) facsimile number of record, and/or, (iii) overnight delivery to the physical address of record by nationally recognized overnight delivery service.

 

26. SURVIVAL.

Sections 3, 4, 5, 9, 13, 15, 16, 17, 18, 19, 21, 23, 24, 25, 26, 27 and 28, and Section 4 of the Business Associate Addendum (if applicable), will survive any expiration or termination of this Agreement. Notwithstanding the foregoing, the expiration or termination of this Agreement will not relieve the parties of any liability or obligation that accrued prior to such expiration or termination.

 

27. MISCELLANEOUS.

(a) This Agreement, together with any attachments, including, without limitation, the Order and any Rate Schedules incorporated herein by reference, constitute the entire understanding between the Parties with respect to the Product(s) and Service(s) provided herein and supersedes any prior agreements, understandings, statements or proposals concerning the Product(s) and Service(s), including representations, whether written or oral. Customer will receive the Product(s) and Service(s) detailed in an executed Order pursuant to this Agreement only and Customer is not relying on any affirmation of fact, promise or description from any person or entity, nor any other oral or written representation other than what is contained in this Agreement and any incorporated documents. Handwritten alterations or additions by Customer to this Agreement, the Order, or any Rate Schedule(s) or addendum(a) will not be considered binding; such modifications must be provided by Customer in a separate written document and executed by both Parties. This Agreement will be binding on the parties hereto and their respective personal and legal representatives, successors and permitted assigns. Agreement headings are provided for reference purposes only. This Agreement may be executed in counterparts, each and all of which constitute the full executed Agreement, and the Parties agree that a digitized (electronic) or facsimile copy of the executed Agreement will be the same as an original copy. The failure of Provider to give notification of Default and/or to enforce compliance with any of the terms or conditions of this Agreement will not be considered the waiver of such Default and/or any further Default and/or enforcement or other term or condition of this Agreement. No waiver of Provider will be effective unless in writing and signed by an authorized representative of Provider. No amendment to this Agreement will be effective or binding unless it is made in writing and executed by authorized representatives of both Parties.

(b) In the event of any conflict between the Order (exclusive of these Terms and Conditions) and these Terms and Conditions, then these Terms and Conditions will control with respect to any matter related to the Order and this Agreement.

 

28. INCORPORATION BY REFERENCE.

The foregoing recitals and the Order executed under this Agreement, any applicable Rate Schedule(s) and/or addendum(a), Provider’s Acceptable Use Policy (“AUP”) posted by Provider from time to time at amptelecom.com/AUP, any Terms and Conditions posted by Provider from time to time at amptelecom.com, and similar attached hereto and referred to herein, are hereby acknowledged to be true and accurate, and are incorporated herein by this reference.