QUICKSILVER TECHNOLOGY & CONSULTING BUSINESSSERVICES CUSTOMER TERMS AND CONDITIONS
The Customer named on the Company Business Service Order Agreement and Company Quicksilver Technology, LLC “Company” agree that the terms and conditions on the Company Business Service Order Agreement and these terms and conditions constitute the agreement (the “Agreement”) for the provision of the Services selected by Customer and designated on a Service Order. Services may include Company Business and Hospitality commercial digital voice services, including enhanced voice, toll free and trunk services(“Voice”) (each a “Service” and collectively “Services”).
The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services.
Affiliate: Any entity that controls, is controlled by or is under common control with Company.
Agreement: These terms and conditions and the Service Order Agreement executed by Customer.
Installed Equipment: Any and all facilities, equipment or devices provided by Company or its authorized contractors and paid for by Customer at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Not withstanding the above, inside telephone wiring, whether or not installed by Company, shall not be considered Installed Equipment.
Confidential Information: All information regarding either party’s business which has been marked or is otherwise communicated as being“proprietary” or “confidential.” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.
Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services shall be considered Customers Equipment.
Licensed Software: Computer software or code provided by Company or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Party: A reference to Company or the Customer; and in the plural, a reference to both companies.
Service(s): The Voice services provided by Company to Customer described in one or more Service Order(s). All Services are for commercial use only, except as otherwise expressly permitted herein.
Service Commencement Date: The date(s) on which Company first makes Service available for use by Customer. A single Service Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.
Service Order: A request for Company to provide the Services to Service Location(s) submitted by Customer to Company (a) on a then-current Company form designated for that purpose or (b) if available, through a Company electronic order processing system designated for that purpose.
Service Order Agreement: The agreement under which all Service Orders are submitted to Company.
Service Location(s): The Customer location(s) where Company provides the Services.
Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Service Order.
Tariff: A federal or state Company tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
Termination Charges: Charges that may be imposed by Company if, prior to the end of the applicable Service Term (a) Company terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges with respect to each terminated Service Order shall equal, in addition to all amounts payable by Customer in accordance with Section 5.3, seventy-fivepercent (75%) of the remaining monthly fees that would have been payable by Customer under the Service Order if the Services described in the Service Orderhad been provided until the end of the Service Term. In the event the Agreement is terminated as herein described during the initial Service Term, Termination Charges shall also include one hundred percent (100%) of any amount paid by Company in connection with Custom Installation, as that term is defined inSection 2.7, for the Services provided by Company under the Service Order. Customer acknowledges and agrees that these Termination Charges are reasonable due to Company’s ongoing expenses and overhead related to this Agreement, even if the Services are terminated byCustomer.
2.1 Orders. Customer shall submit to Company a properly completed Service Order to initiate Services to a Service Location(s). A Service Order shall become binding on the parties when (i) it is specifically accepted by Company either electronically or in writing, (ii) Company begins providing the Services described in the Service Order or (iii) Company begins Custom Installation (as defined in Section 2.7) for delivery of the Services describedin the Service Order, which ever is earlier. When a Service Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
2.2 Speed. Company makes no representation regarding the speed of the Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection and the provisions of underlying utilities and services by third parties.
2.3 Access. Customer, at no cost to Company, shall secureand maintain all necessary rights of access to Service Location(s) for Companyto install and provide the Services, unless Company has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Installed Equipment used to provide the Services within the Service Location(s). Company and its employees and authorized contractors will require free ingress and egress into and out ofthe Service Location(s) in connection with the provision of Services. Upon reasonable notice from Company, Customer shall provide all required access to Company and its authorized personnel.
2.4 Service Commencement Date. Upon installation and connection of the necessary facilities and equipment to provide the Services, or in the case of Voice, the day Voice Service is activated, Company shall notify Customer that the Services are available for use, and the date of such notice shall be called the “Service Commencement Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Commencement Date shall not relieve Customer of its obligation to pay applicable Service charges.
2.5 Installed Equipment. Installed Equipment is and shall remain the property of Customer so long as Customer paid for the Installed Equipment. Customer shall not use the Installed Equipment or permit others to do so, and shall not use the Installed Equipment for any purpose other than that authorized by the Agreement. Company shall maintain Installed Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at Company’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Installed Equipment. Customer is responsible for damage to, or loss of, Installed Equipment caused by its acts, negligence, or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless solely caused by the negligence or willful misconduct of Company.
2.6 Customer-Provided Equipment. Company shall have no obligation to install, operate, or maintain Customer-Provided Equipment. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the cable modem, route and/or coaxial input connection. All Customer-Provided Equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services and Installed Equipment. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by Company’s employees or authorized contractorswhen the difficulty or trouble report results from Customer-Provided Equipment.
2.7 Engineering Review. Each Service Order submitted by Customer shall be subject to an engineering review by Company. The engineering review will determine whether the cable plant must be extended, built or upgraded in orderto provide the ordered Services at the requested Service Location(s), or whether Service installation has to be expedited to meet the Customer’s requested Service Commencement Date (”Custom Installation”) . Company will provide Customer written notification in the event Service installation at any Service Location will require an additional one-time installation fee (“CustomInstallation Fee”). Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Service Order with respect to the affected Service Location(s), provided that should Customer authorize commencement of the Service Order, then Customer shall be deemed to have waived the right to terminate.
2.8 Administrative Web Site. Company may, at its sole option, make one or more administrative web sites available to Customer in connection withCustomer’s use of the Services (each an “Administrative Web Site”). Company may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify Company if there has been an unauthorized release, use orother compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and Company shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorizedby Customer. Company shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. Company may change or discontinue he Administrative Web Site, or Customer’s right to use the Administrative WebSite, at any time. Additional terms and policies may apply to Customer’s use ofthe Administrative Web Site. These terms and policies will be posted on the site.
3.1 Charges. Customer shall pay Company one hundred percent (100%) of the Custom Installation Fee prior to the installation of Service. Customer further agrees to pay all charges associated with the Services, as setforth or referenced in the applicable Service Order(s) or invoiced by Company. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of Company Equipment, charges related to Customer Equipment, per-call charges, charges for service calls, maintenance and repair charges,and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Some Services, such as but not limited to, measured and per-call charges, (as explained below in the Voice Additional Terms) may be invoiced after the Service has been provided to Customer.
3.2 Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by Company. These may include, without limitation, charges resulting from accessing on-line services, calls to parties who charge for their telephone based services, purchasing or subscribing to other offerings via the Internetor interactive options on Public View Video, Video, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated herein or on the Service Order(s), Company will invoice Customer in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to Company for all invoiced amounts within ten (10) days after the date of the invoice. Any amounts not paid to Company within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, Company may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the thirdparty. Company shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
3.4 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by Company, with payments being applied to past due fees, interest, and amounts due prior to application to any current amounts due. No acceptance of partial payment(s) by Company shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
3.5 Payment by Credit Card. Upon Customer’s written request and Company’s acceptance of such request, Company will accept certain credit card payments for charges generated under the Agreement. By providing Company with a credit card number, Customer authorizes Company to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that Company stop charging the credit card. Customer agrees to provide Company with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If Company is unable to charge Customer's credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by Company. Company may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
3.6 Credit Approval and Deposits. Initial and ongoing delivery of Services maybe subject to credit approval. Customer shall provide Company with credit information requested by Company. Customer authorizes Company to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to Company will be true and correct. Company, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, Company may require Customer to make a deposit or advance payments as a condition to Company’s provision of the Services, or as a condition to Company’s continuation of the Services. The deposit or advance payment will not, unless explicitly required by law, bear interest and shall be held by Company as security for payment of Customer's charges. If the provision of Service to Customer is terminated, or if Company determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer's account or will be refunded to Customer, as determined by Company.
3.7 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
3.8 Other Government-Related Costs andFees. Company reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether Company or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. These obligations may include those imposed on Company or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that Company or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. For example, Voice customers are charged a monthly regulatory recovery fee to help defray Company’s contributions to municipal, state, and federal programs including, without limitation, universal service, telecomrelay services for the visually/hearing impaired, and 911/E911 programs and infrastructure. This regulatory recovery fee is not a tax, and it is not government mandated. Taxes and other government-related fees and surcharges may be changed with or without notice.
3.9 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to Company for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within thirty (30) days after the dispute was submitted to Company, all disputed amounts shall become immediately due and payable to Company.
3.10 Past-Due Amounts. Any undisputed payment not made when due will be subject to interest at a rate of 1.5% per month not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, Company may terminate Services and refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Company Equipment that Customer fails to return in accordance with the Agreement. If Company is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Company Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Company under the Agreement or at law or in equity. In the event of termination by the Company due to past due payments, Customer agrees to pay the Termination Charges.
3.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge of the amount incurred by Company and a fee of $50 per rejected payment.
3.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Company may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. Company reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer or any third party.
4.1 Agreement Term. This Agreement shall terminate upon the expiration or other termination of the final existing Service Order entered into under this Agreement. The term of a Service Order shall commence on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service. Unless otherwise stated in these terms and conditions, if a Service Order does not specify a term of service, the Service Term shall be one (1) year from the Service Commencement Date.
4.2 Service Order Renewal. Upon the expiration of the Service Term, this Agreement and each applicable Service Order shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless otherwise stated in these terms and conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term. Except as otherwise identified in the Agreement, at any time during initial Service Term and from time to time thereafter, Company may increase the charges for Voice Services subject to thirty (30) days prior notice to Customer. Effective at any time after the end of the initial Service Term and from time to time thereafter, Company may modify the charges for Internet Services subject to thirty (30) days prior notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing.
5.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Order, or this Agreement in whole or part, at any time during the Service Term upon sixty(60) days prior notice to Company, and subject to payment to Company of all outstanding amounts due for the Services, any and all applicable Termination Charges, and the return of any and all Company Equipment.
5.2 Termination for Cause.
(a) If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within five (5) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on two (2) or more occasions during any twelve (12) month period, Company may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services. However, Companywill not take any such action as a result of Customer’s non-payment of a chargethat is the subject of a timely billing dispute, unless the parties have reviewed the dispute and determined in good faith that the charge is correct.
(b) If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Service Order materially affected by the breach.
(c) A Service Order may be terminated by either party immediately upon notice if the other party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.
(d) Termination by either party of a Service Order does not waive any other rights or remedies that it may have under this Agreement.
5.3 Effect of Expiration or Termination ofthe Agreement or a Service Order. Upon the expiration or termination of a Service Order for any reason: (i) Company may disconnect the applicable Service; (ii) Company may delete all applicable data, files, electronic messages, voicemail or other information stored on Company’s servers or systems; (iii) if Customer has terminated the Service Order prior to the expiration of the Service Term for convenience, or if Company has terminated the Service Order prior to the expiration of the Service Term as a result of material breach by Customer, Company may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, permit Company access to retrieve from the applicable Service Locations any and all Company Equipment (however, if Customer fails to permit access, or if the retrieved Company Equipment has been damaged and/or destroyed other than by Company or its agents, normal wear and tear excepted, Company may invoice Customer for the full replacement cost of the relevant Company Equipment, or in the event of minor damage to the retrieved Company Equipment, the cost of repair, which amounts shall be immediately due and payable); and (v) if used inconjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall beobligated to return the Licensed Software to Company.
5.4 Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. Company may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects Company’sability to provide the Services herein.
6.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY COMPANY OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE COMPANY EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
6.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, COMPANY EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICES, Company EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, COMPANY EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, COMPANY EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
6.3 COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, COMPANY EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
6.4 IN NO EVENT SHALL COMPANY, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMERHARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
6.5 DISRUPTION OF SERVICE. Company shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer- Equipment or outside of the control of the Company; inability to obtain access to the Service Locations; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services.
6.6 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. In no event shall Company’s liability to Customer exceed the amount paid by Customer to Company for the Services in the most recent 12 month period.
7.1 Subject to Article 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and anyother amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, "Claims") relating to: (i) any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, Company Equipment, and Licensed Software; and (ii) any Claim of any third party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, Company Equipment, and Licensed Software.
7.2 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 7 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, inwriting, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
8.1 License. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Company, including, without limitation, end-user license agreements for the Licensed Software. Company and its suppliers shall retain ownership of the Licensed Software, and no rightsare granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades there to or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Company; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or anyother software program based on the Licensed Software.
8.3 Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the Company Equipment or Customer-Provided Equipment. If Company has agreed to provide updates and changes, Company may perform such updates and changes remotely or on-site, at Company’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Company.
8.4 Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of the Services does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
8.5 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned or licensed by Company, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from Company or other owner of such material, is prohibited.
9.1 Disclosure and Use. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering theServices, and marketing related products and services (provided that in allcases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use ordisclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
9.2 Exceptions. Not withstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: (i)is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independentlyby the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
9.3 Remedies. Not withstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
9.4 Monitoring. Company shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that Company and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. Company reserves the right to refuse toupload, post, publish, transmit or store any information or materials, in whole or in part, that, in Company’s sole discretion, is unacceptable, undesirable or in violation of this Agreement.
In addition to the provisions of Article 9, the privacy policy below applies to Company’s handling of Customer confidential information. In the event of a conflict between the provisions of Article 9 and any provision of the privacy policy below, the applicable provision of the privacy policy shall prevail in the resolution of the conflict. A copy of Company’s privacy policy is available at www.quicksilvertechnology.com/privacy.
9A.2 Privacy Note Regarding Information Provided to Third Parties: Company is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
10.1 Resale. Except as otherwise provided in the General Terms and Conditions, Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
10.2 Use Policies. Customer agrees to ensure that all uses of the Company Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. Company reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Company (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with Company’s ability to provide the Services to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use, or (iv)reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of Company personnel or third parties. The Company may establish policies concerning the Services and if so establishedwill be posted on Company’s web site(s) at [url] (or any successor URL) or on another web site about which Customer has been notified, and are incorporated to this Agreement by reference. Company may update the use policies from time to time, and such updates shall be deemed effective seven (7) days after the update is posted online, with or without actual notice to Customer. Accordingly, Customer should check the above web addresses (or the applicablesuccessor URLs) on a regular basis to ensure that its activities conform to the most current version of the use policies. Company’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
10.3 Violation. Any breach of this Article 10 shall be deemed a material breach of this Agreement. In the event of such material breach, Company shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of Company, and then to notify Customer of the action that Company has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
11.1 Company and Customer shall maintain during the Initial Term or any Renewal Term commercial general liability insurance that covers its liability and obligations hereunder including property damage and personal injury.
11.2 The liability limits under these policies shall be, at a minimum, one million($1,000,000) dollars per occurrence, with a combined single limit for bodily injury and property damage liability.
12.1 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, utility interruption, cable cut, acts of regulatory or governmental agencies, unavailability of right-of- way, unavailability of services or materials upon which the Services rely, labor shortages or unavailability, or other causes beyond the party’s reasonable control, except that Customer’s obligation to pay for Services provided shall not be excused.
12.2 Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing not withstanding, Company may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, Company may partially assign its rights and obligations hereunder to any party that acquires from Company all or substantially all of the assets of a network(s) in which the Services is deployed to Customer. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
12.3 Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, servicesand training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Company, Customer also agrees to sign written assurances and other export-related documents as may be required for Company to comply with U.S. export regulations.
12.4 Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier. Notices to Customer shall be sent to the Customer billing address; notices to Company shall be sent to 631 S 6thSt, St. Joseph, MO 64501, Attn: David Dudeck, with an email copy to: voip@quicksilvertechnology.com. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
12.5 Entire Understanding. The Agreement constitutes the entire understanding of the parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any purchase order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of Company may make modifications to this Agreement or this Agreement’s form. No modificationto the form or this Agreement made by a representative of Company who has notbeen specifically authorized to make such modifications shall be binding uponCompany. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both parties.
12.6 Tariffs. Not withstanding anything to the contrary in the Agreement, Company may elect or be required to file tariffs with regulatory agencies for certain Services. In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the Tariffs. Without limiting the generality of the foregoing, in the event of any inconsistency with respect to rates, the rates and other terms set forthin the applicable Sales Order shall be treated as individual case based arrangements to the maximum extent permitted by law, and Company shall take such steps as are required by law to make the rates and other terms enforceable. If Company voluntarily or involuntarily cancels or withdraws a Tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the Tariff immediately prior to its cancellation or withdrawal. In the event that Company is required by a governmental authority to modify a Tariff under which Service is provided to Customer in a manner that is material and adverse to either party, the affected party may terminate the applicable Sales Order upon a minimum thirty (30) days’ prior written notice to the other party, without further liability.
12.7 Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect.
12.8 Survival. The rights and obligations of either party that by their nature would continue beyond the expiration or termination of this Agreement or any Service Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Service Order.
12.9 Choice of Law. The domestic law of the state [state] shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law.
12.10 No Third-Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
12.11 No Waiver. No failure by either party to enforce anyrights hereunder shall constitute a waiver of such right(s).
12.12 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
12.13 Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
12.14 Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
If Customer submits a Service Order(s) fordomain name registration services, the following terms shall also apply:
13.1 Registration. At the request of Customer, Company will use commercially reasonable efforts to facilitate the registration of the Customer internet domain name (“Customer Domain Name”) with a domain name registration service of Company’s choosing, but only to the extent that Customer provides Company with all necessary information relevant to such registration. The domain name registration service will invoice Customer directly for all applicable registration fees, maintenance fees, and other applicable fees related thereto. Customer hereby acknowledges that Customer is entirely responsible for the payment of any and all such fees. Company does not represent that the Customer Domain Name will be available on an initial or ongoing basis. Further, Customer acknowledges that Customer, not Company, has ownership, control, and use of the Customer Domain Name. Further, Customer hereby agrees now and forever to release and to hold harmless Company, its employees, affiliates, agents, and contractors, from any and all losses, damages,rights, claims, and actions with respect to, or in any way arising from, the domain name registration service’s removal of allocation or support for the Customer Domain Name. Should Customer require modification of the Customer Domain Name or additional related services, additional charges may apply from the relevant registration service and from Company for setup of the modification or addition.
13.2 Sub-Domain Name. Should Customer be unable to register a unique domain name, Company may grant upon Customer request and only for the term ofthe Service Order providing for such service, the limited, personal, and non-transferable right to specify and append a sub-domain name to Company’s prescribed domain name, for the sole purpose of uniquely identifying Customer’s e-mail address. Company does not represent that Customer’s selected sub-domainname will be available. Customer receives no right to Company’s domain name other that as specifically stated in this Article 15. Upon the termination of the applicable Service Order, Customer shall surrender all rights, privileges and interest in and to the sub-domain name and Company’s domain name.
14.1 Voice Service calling plans billed as a flat monthly fee may not include certain call types. These excluded call types will instead be charged on aper-call basis (e.g., operator services) or a measured basis (e.g.,international calls). Generally, for billing purposes, a measured call begins when the call is answered by the called party or an automated answering device (such as an answering machine or fax machine); it ends when one of the parties disconnects the call.
14.2 Except as otherwise provided in these General Terms and Conditions, VoiceService measured calls are recorded in whole minutes, with partial minutes rounded up to the next whole minute. If the computed charge for a measured call or for taxes or surcharges includes a fraction of a cent, the fraction is rounded up to the nearest whole cent.
14.3 Notwithstanding anything to the contrary in this Agreement, some providers (e.g., those involved in calls to foreign countries) charge for a completed call when the called party’s line rings or after a certain number of rings. If such a provider charges Company or its Associated Parties, as if such a call were answered by the called party, Company will charge Customer for a completed call.
15.1 Additional Use Restrictions. Except as otherwise provided in the General Terms and Conditions, Voice Service may only be used at Service Location(s) where such service is installed by Company. Customer understands and acknowledges that if Customer attempts to install or use the Company Equipmentor Voice Service at another location, Voice Service, including but not limited to 911/E911, may fail to function or may function improperly. It will be considered a material violation of this Agreement if Customer moves Voice Service to another location without first notifying Company. Customer expressly agrees not to use Voice Service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for any otheruse that results in excessive usage inconsistent with standard commercial calling patterns. If Company determines, in its sole discretion, that Customer’s use of Voice Service is excessive or in violation of this Agreement, Company reserves the right, among other things, to terminate or modify Voice Service immediately and without notice.
15A.1 Disruption of Service. Customer acknowledges and understands that Voice Service will not be available for use under certain circumstances,including without limitation when the network or facilities are not operating or if normal electrical power to the MTA, ATA or ALG is interrupted and such equipment does not have a functioning backup. Customer also understands and acknowledges that the performance of the battery backup is not guaranteed. If the battery backup does not provide power, Voice Services will not function until normal power is restored. Customer also understands that certain online features of Voice Service, where such features are available, will not be available under certain circumstances, including but not limited to the interruption of the Internet connection.
15A.2 Provision of Service. Subject to the terms and conditions herein, Voice Services are intended for commercial use only.
16.1 Limitations. Voice Services includes a 911/ Enhanced 911 function (“911/E911”) that may differ from the 911 or Enhanced 911 function furnished by other providers. As such, it may have certain limitations. CUSTOMER ACKNOWLEDGES AND ACCEPTS ANY LIMITATIONS OF 911/E911.
16.2 Correct Address. In order for Customer’s 911/E911 calls to be properly directed to emergency services, Company must have Customer’s correct Service Location address. If Customer moves Voice Service to a different Service Location without Company’s approval, 911/E911 calls may be directed to the wrong emergency authority, may transmit the wrong Service Location address,and/or Voice Service (including 911/E911) may fail altogether. Therefore, Customer must contact Company at least five (5) days before moving Voice Service to a new Service Location. All changes in Service Location require Company’s prior approval.
16.3 Service Interruptions. Customer acknowledges and understands that certain Voice Service uses the electrical power in Customer’s Service Location. If there is an electrical power outage, 911 calling may be interrupted if the battery backup in the associated MTA, ALA or ALG is not installed, fails, or is exhausted after several hours. Furthermore, calls, including calls to 911/E911,may not be completed if Customer exceeds its Voice Service and equipment configuration calling capacity or if there is a problem with network facilities,including network congestion, network/equipment/power failure, or another technical problem.
16.4 Suspension and Termination by Company. Customer understands and acknowledges that Voice Service, including 911/E911, as well as all online features of Voice Service, where Company make these features available, will be disabled if Customer’s account is suspended or terminated.
16.5 LIMITATION OF LIABILITY AND INDEMNIFICATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER COMPANY NOR ITS ASSOCIATED PARTIES WILL BE LIABLE FOR ANY VOICE SERVICE OUTAGE, INABILITY TO DIAL 911 USING THE SERVICES, AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL. CUSTOMER AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS COMPANY AND ITS ASSOCIATED PARTIES FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE VOICE SERVICES RELATING TO THE FAILURE OR OUTAGE OF THE SERVICES, INCLUDING THOSE RELATED TO 911/E911.
17.1 MTA. To use Voice Service, Customer will need a multimedia terminal adapter (“MTA”), application layer gateway (“ALG”), analog telephone adapter (“ATA”) or other adapter device. Customer can lease an MTA from Company, in which case it will be Company Equipment. Or, in some areas, Company may permit Customer to use Voice Service with an MTA that Customer has purchased, in which case the MTA will be Customer Equipment. Customer agrees to keep the MTA plugged into a working electrical power outlet at all times.
17.2 Incompatible Equipment and Services. Customer acknowledges and understands Voice Service may not support or be compatible with:
(a) Non-recommended configurations including but not limited to MTAs, ATAs or ALGs not currently certified by Company as compatible with Voice Service;
(b) Certain non-voice communications equipment, including certain makes or models of alarm and security systems, certain medical monitoring devices, certain fax machines, and certain “dial-up”modems;
(c) Rotary-dial phone handsets, pulse-dialphone handsets, and models of other voice-related communications equipment such as certain private branch exchange (PBX) equipment, answering machines, and traditional Caller ID units;
(d) Casual/dial around (10-10) calling; 976,900, 700, or 500 number calling;
(e) 311, 511, or other x11 calling (other than411 and 911); and
(f) Other call types not expressly set forth in Company’s product literature (e.g., outbound shore-to-ship calling).
18.1 Limitations on Company’s Liability for Directories and Directory Assistance for Voice Service Customers. THESE LIMITATIONS SHALL APPLY WHERE COMPANY MAKES AVAILABLE AN OPTION TO LIST CUSTOMER’S NAME, ADDRESS, AND/OR TELEPHONE NUMBER IN A PUBLISHED DIRECTORY OR DIRECTORY ASSISTANCE DATABASE, AND ONE OR MORE OF THE FOLLOWING CONDITIONS OCCURS: (i) CUSTOMER REQUESTS THAT CUSTOMER’S NAME, ADDRESS AND/OR PHONE NUMBERBE OMITTED FROM A DIRECTORY OR DIRECTORY ASSISTANCE DATABASE, BUT THAT INFORMATION IS INCLUDED IN EITHER OR BOTH; (ii) CUSTOMER REQUESTS THAT CUSTOMER’S NAME, ADDRESS AND/OR PHONE NUMBER BE INCLUDED IN A DIRECTORY OR DIRECTORY ASSISTANCE DATABASE, BUT THAT INFORMATION IS OMITTED FROM EITHER OR BOTH; OR (iii) THE PUBLISHED OR LISTED INFORMATION FOR CUSTOMER’S ACCOUNT CONTAINS MATERIAL ERRORS OR OMISSIONS. IF ANY OF THESE CONDITIONS PERTAIN, THEN THE AGGREGATE LIABILITY OF COMPANY AND ITS ASSOCIATED PARTIES SHALL NOT EXCEED THE MONTHLY CHARGES, IF ANY, WHICH CUSTOMER HAS ACTUALLY PAID TO COMPANY TO LIST, PUBLISH, NOT LIST, OR NOT PUBLISH THE INFORMATION FOR THE AFFECTED PERIOD. CUSTOMER SHALL HOLD HARMLESS COMPANY AND ITS ASSOCIATED PARTIES AGAINST ANY AND ALL CLAIMS FOR DAMAGES CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE ERRORS AND OMISSIONS REFERENCED ABOVE. FURTHERMORE, IF COMPANY MAKES AVAILABLE DIRECTORY ADVERTISING SERVICES, NEITHER COMPANY NOR ANY OF ITS ASSOCIATED PARTIES WILL BE LIABLE FOR ANY ACTS, ERRORS, OR OMISSIONS RELATED TO SUCH DIRECTORY ADVERTISING.
18.2 CUSTOMER INFORMATION. Company and its suppliers reserve the right both during the term of this Agreement and upon its termination to delete Customer’s voicemail, call detail, data, files, or other information that is stored on Company’s or its suppliers’ servers or systems, in accordance with our storage policies. Customer understands and acknowledges that Company shall have no liability whatsoever as a result of the loss or removal of any such voicemail, call detail, data, files, or other information.
