This White Label Master Services Agreement (“MSA” or “Agreement”) is entered into on (the “Effective Date”) by and between Viirtue, Inc., a Florida corporation with a principal place of business at 401 16th Street N., St. Petersburg, FL 33705, (“Viirtue” or “Provider”) and Name of Company with a principal place of business at, a Address (“Partner”). Each of Viirtue and Partner is referred to herein individually as a “Party” and collectively as the “Parties.
WHEREAS, Viirtue is a wholesale Voice over Internet Protocol (“VoIP”) provider;
WHEREAS, Partner is in the business of reselling telecommunication services by incorporating purchased telecommunications into its own offerings;
WHEREAS, Partner wishes to purchase the Services (as defined below) from Viirtue and resell these Services to Customers and End Users (as defined below); and
WHEREAS, Provider wishes to sell the Services to Partner under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth herein and for othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of themanagement and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Confidential Information” has the meaning set forth in Section 9.1 herein.
“Customer” means any person or entity that purchases Services from Partner for the purpose of providing Services to an End User.
“Device” means an approved device from the list of devices set forth in Exhibit A, as such list is amended from time to time.
“E911 Notifications” means those notifications required to be provided by interconnected VoIP service providers to userspursuant to 47 CFR section 9.5(e), as amended from time to time and as set forth in Exhibit B hereto.
“End User” means the final subscriber who purchases Services from either Partner or Partner’s Customer for its own internal use and not for resale, marketing, or distribution.
“FCC” means the Federal Communications Commission.
“FUSF” means the Federal Universal Service Fund
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi- governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
“Law” means any statute, law, ordinance, regulation, code, rule, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
“Services” mean the wholesale international and domestic Voice over Internet Protocol (“VoIP”) services, associated features, software solutions, products, networks, services, and hosting facilities offered by Viirtue. Specifically, in addition tothe VoIP services and features, Provider also offers access to its hosted quote and billing services platform, ViiBe. In addition, Viirtue has partnered with third- party tax calculation vendors whose services have been integrated with the ViiBe Platform. Detailed descriptions, terms and pricing for the Services are set forth in Exhibit A hereto.
“ViiBE Platform” means Viirtue’s Quote-to-Cash hosted platform.
2.1 Appointment of Partner. Subject to the terms and conditions of this Agreement, Viirtue hereby authorizes Partnerto purchase the Services set forth on Exhibit A and to resell those Services to its Customers and End Users within the United States during the Term (as defined herein).
(a) This appointment is non-exclusive, and Provider reserves the right to sell the Services and any other services and products directly and through any other remarketers, dealers, distributors, sales representatives or other channels, and for any purposes, includingwithout limitation the marketing and provision of upgrades to the Services and/or other products and services to any Customer or End User that has previously obtained services from Partner, provided that such Customer or End User does not, at the time of suchmarketing or provision, obtain Services from Partner or a Customer of Partner.
(b) Provider shall not provide any Customer or End User information or data to other remarketers, dealers, distributors or sales representatives without written agreement ofPartner. Partner's Customer and End User information and data shall be consideredConfidential Information under this Agreement.
2.2 Provision of Access. Subject to and conditioned upon Partner’s compliance with the terms and conditions of this Agreement, Provider hereby grants Partner a non-exclusive, non-transferable (except to its Customers and End Users), right to access and use the Services during the Term, solely for the purposes of performing its rights and obligations under this Agreement.
2.3 Limited License. All software and documentation provided hereunder (if any) is licensed and not sold, and Provider reserves all rights not expressly granted hereunder. Subject to and conditioned upon Partner’s compliance with the terms and conditions of this Agreement, Provider hereby grants to Partner a limited, non-exclusive, non-transferable, and sublicensable only to its Customers and End Users, license to (a) demonstrate, market, reproduce (for software, in object code form only), and distribute the software and documentation provided hereunder solely for use by End Users or Customers, and (b) use the software and documentation provided hereunder internally for supporting the Services.
(a) In no event shall Provider's use of, or contractual arrangement with any third-party vendors create any agency, employment, joint venture, partnership, representation, or fiduciary relationship between such third-party vendors and Partner, and neither Provider nor its third-party vendors shall have the authority to create any obligation on behalf of the other.
(b) All Customers procured by Partner and all End Users procured by Partner or its Customers shall be considered by both Parties to be customers belonging exclusively to Partner. Nothing herein or otherwise shall create, or be deemed to create, any connection, contractual or otherwise, between Provider and the Customers or End Users. Except as specifically set forth herein, Provider shall have no responsibility to deal directly with Customers or End Users, and Partner accepts responsibility for all interactions with its own Customers and End Users. Any communication by Provider with Customers or End Users must be preapproved by Partner, other than communications that are required by Law, this Agreement, or are reasonably required to providethe Services or to prevent harm to persons or damage to property.
(c) Partner shall take full responsibility for management of Customers and End Users including, without limitation, customer solicitation, creditworthiness, provision of Tier I customer service, billing and collection, and license agreements and/or fees. Tier 1 support includes: password resets; troubleshooting of call quality internet service issues; creation and configuration of domains; device and domain overrides; device provisioning; call traces; and call detail reporting.
(d) Partner acknowledges that both Provider and Partner are bound to protect and use Customer Proprietary Network Information (“CPNI”) only in accordance with federal regulation.
(e) Partner acknowledges and agrees to inform Partner’s Customers and End Users that the Services may not be compatible with all communication equipment.
2.2 Restrictions on Use.
(a) Partner shall have no right to sell the Services outside the United States, and any violation of this provision, as determined in Viirtue’s sole and absolute discretion, shall result in immediate suspension and/or termination of the Services.
(b) Partner must use the Services for lawful purposes and activities and must comply with all applicable Laws and industry codes of practice in connection with its use of the Services.
(c) Partner must not (i) modify all or any portion of the Services, including introducing malicious programs or software that may interfere with the Services, except for such limited modifications as Provider may pre-approve in writing, (ii) sell, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Services, except as set forth in this Agreement, (iii) use the Services in any manner to endanger any person, damage any property, infringe a person’s rights (including intellectual property rights), or which could give rise to Provider incurring a liability for infringement claims, (iv) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Services, (v) use the Service in a way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or in a similar manner, (vi) use the Services for deceptive marketing practices, (vii) use the Services in a manner that is deemed to interfere with, disrupt, or present a risk to the Services, network, software, property, or security of Provider, its customers, its third-party vendors or other third parties, whether directly or indirectly, or (ix) use the Services in a manner that involves illegal robocalls or illegal autodialing.
(d) Partner shall be responsible for ensuring that its Customers and End Users comply with Partner’s obligationsset forth in this section. Provider shall have the right to immediately and without notice suspend or terminateServices of Partner or any Customer or End User of Partner if Partner or a Customer or End User of Partner isin violation of the limitations set forth in this section, as determined in Provider’s sole discretion.
2.3 Service Changes. Provider will have the right to make modifications and other changes and updates to the Services that do not adversely affect the functioning of the Services. Provider will endeavor to provide reasonable advanced written notice to Partner of any such modifications.
2.4 Updates. Provider may provide updates, corrections, bug fixes or other modifications to the Services (collectively, “Updates”) to Partner, Customers, or End Users in its sole discretion, but shall provide all Updates to Partner that it makes generally available to Provider’s customers.
2.5 Audit. Provider reserves the right to audit, track, and/or monitor Partner’s, Customers, and/or End User’s use of the Services to (i) enforce the provisions of this Agreement; (ii) conform to legal requirements or comply with legal process; (iii) protect and defend the rights or property of Provider or any third-party vendors; (iv) respond to request for identification in connection with a claim of copyright or trademark infringement, or unlawful activity; (iv) act to protect theinterests of Provider's customers or such customer’s end users; (v) conform to Provider's contractual obligation with any third-party vendor; or (g) ensure compliance with the terms of the Agreement and/or compliance with applicable Law.Partner agrees that this Agreement is sufficient notice of such monitoring to the extent any notice is required underapplicable Law. Partner must inform its Customers and/or End Users of the provisions of this section.
2.6 Equipment.
(a) Partner acknowledges and agrees that its Customers and/or End Users will require hardware to use the Services, including (i) internet connectivity and network equipment suitable for UCaaS services and (ii) anapproved Device or softphone. Provider shall have no responsibility for providing any such equipment exceptto the extent Partner purchases a Device from Provider and as set forth on Exhibit C hereto. Provider disclaims all responsibility and liability for any losses in relation to equipment provided by a third party or which is not authorized by Provider, and for any interruptions to the Services caused by or arising in connection with the Customer and/or End User’s broadband connection or broadband modem.
(b) Partner shall be solely responsible for the acquisition, installation, testing, maintenance and security of its own equipment and network facilitates needed for Partner and Customers and/or End Users to utilize theServices. Partner shall be solely responsible for any liabilities that arise from the equipment, software, and facilities provided by Partner, its Customers, and/or End Users.
3.1 VoIP Services. The Services are not a telecommunications services, and important distinctions exist betweentelecommunications services and the Services Viirtue provides. The Services are subject to different regulatory treatment than telecommunications services. This treatment may limit or otherwise affect Partner’s and its Customers’ and End Users’ rights of redress before regulatory agencies.
3.2 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Services do not support 0+ or operator assisted calling (including, without limitation, collect calls, third-party billing calls or calling card calls). TheServices may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
3.3 Directory Listings. The phone numbers obtained from Provider typically are not listed in telephone directories as part of the Services Provider offers.
3.4 Incompatibility With Other Services.
(a) Security Systems/Fire Alarm/Elevator/Postage. The Services may not be compatible with security systems/fire alarms. Users may be required to maintain a telephone connection through their local exchange carrier in order to use any alarm monitoring functions for any security system installed in their home or business. Users are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. Partner acknowledges that the Services presently may not be compatible with some broadband services. Partner further acknowledges that some providers of broadband service may provide modems that prevent the transmission of communications using the Services. Provider does not warrant that the Services will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of the Services with any particular broadband service.
3.5 International Voice Termination. If Partner purchases international voice termination services from Provider,rates shall be as set forth in Provider’s Knowledge Base at support.viirtue.com. International services and rates thatProvider will charge are subject to change with or without notice. Provider does not guarantee international call delivery and may block routes it determines may be improperly using the Services at any time.
3.6 Hosted Billing/Tax Calculation Services. If Partner purchases hosted tax calculation services, such services shall be provided by third-party vendors. Notwithstanding the use of any sample tax product mapping features in ViiBE,use of the hosted billing and/or tax calculation services does not relieve Partner of responsibility for the preparation, content, accuracy (including computational accuracy), and review of tax calculations or returns prepared by Partner while using the Services. Partner will neither inquire nor rely upon Provider for any tax, accounting, legal or other professional orexpert advice of any kind. Partner will comply with all state electronic filing regulations as shall be in effect from time totime. Partner is solely responsible for providing all complete, correct, and necessary information directly to taxing authorities. Provider cannot guarantee that taxing authorities will accept all returns. Partner is fully and solely responsiblefor: (i) use of the Services; (ii) all results obtained from the Services; (iii) selecting, obtaining, and maintaining all hardware,software, computer capacity, Internet service, program and system resources and other equipment and utilities needed foraccess to and use of the Services, and for all costs associated therewith; and (iv) selection, use of, and results obtained from any other programs, computer equipment or services used with the Services.
3.7 Limited End User Support. Viirtue will provide its standard Tier 2 and 3 customer service to all Customers andEnd Users with a dedicated service line and will assist Partner’s agents as requested. Following Partner’s or its Customer’ssale of Services to an End User, Partner shall, or shall require its Customer to:
(a) provide Tier I customer support to End Users, for the period during which the End User subscribes to the Services;
(b) ensure that an adequate number of trained, capable, and qualified technical personnel with sufficient knowledge of the Services are available during normal business hours to assist End Users with customer support; and
(c) act as a liaison between the End Users and Provider in matters requiring Provider’s participation.
3.8 Maintenance. Partner acknowledges and agrees that:
(a) From time to time, Provider will perform material maintenance in relation to the Services;
(b) Provider will use reasonable efforts to provide seven (7) days’ advance notice to Partner of such material maintenance; and
(c) In the event Provider must perform emergency maintenance, Partner may not receive notice of such emergency maintenance.
Provider reserves the right to temporarily suspend the provision of certain Services in the event of exigent circumstances,including but not limited to, circumstances posing a danger to the Services, its intellectual property rights, products, other clients of Provider, or which otherwise threaten the use of the Services. In such circumstances, Provider will provide noticeupon suspension, and will reinstate the Services upon completion of the necessary repairs or maintenance.
4.1 Term. The term of this Agreement shall commence of the Effective Date and continue for a period of one (1) year, unless earlier terminated as provided for in this Agreement (“Initial Term”). subject to auto-renewal. Subsequent terms ofthis Agreement automatically renew for a duration one (1) year (each a “Renewal Term”) unless Partner gives Provider written notice of non-renewal in accordance with the terms set forth in Section 4.2 herein below. The Initial Term and each Renewal Term are together, the “Term.”
4.2 Renewal Terms. Upon expiration of the Initial Term, this Agreement automatically renews for additional successive 12-month terms unless and until either Party provides written notice of nonrenewal at least sixty (60) daysprior to the end of the then-current term, or unless and until earlier terminated as provided under this Agreement If the Term is renewed for any Renewal Term(s) pursuant to this section, the terms and conditions of this Agreement duringeach such Renewal Term are the same as the terms in effect immediately prior to such renewal, subject to any change in charges payable for the Services and payment terms during the applicable Renewal Term. In the event either Party provides timely notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the then- current Term.
4.3 Service Order/Activation.
(a) Provider may require Partner to commit to and pay a minimum monthly fee for certain Services. Such minimum commitment shall be set forth on Exhibit A hereto. Partner acknowledges that if a minimum commitment is required by Provider at the time the Services is purchased, Partner shall be responsible for and shall pay the minimum monthly fee throughout the Term of the Services, regardless of whether Partner actually consumes any of the Services.
(b) Provider will make good faith efforts to supply Partner with the Services specified in any purchase order, provided, however, Provider has the right, in its sole discretion, to accept or reject any purchase order. Provider may accept any purchase order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering such Services, whichever occurs first. No purchaseorder is binding on Provider unless accepted by Provider as provided in this Agreement. All purchase orders that have been accepted by Provider are binding upon Partner and may not be cancelled or modified by Partner without Provider’s prior written consent.
4.4 Termination.
(a) Termination for Convenience. Following the Initial Term, a Party may terminate this Agreement without cause and for any reason with sixty (60) days’ written notice to the other Party.
(b) Termination for Cause. Provider may terminate this Agreement upon written notice to Partner: (i) if Partner fails to pay any amount when due under this Agreement (a “Payment Failure”) and such failure continues for ten(10) business days after Partner’s receipt of written notice of nonpayment; (ii) if Partner breaches any provision of this Agreement (other than a payment failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Partner within ten (10) business days after Partner’s receipt of written notice of such breach; or (iii) if Partner (a) becomes insolvent or is generally unable to pay its debts as they become due, (b)files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject,voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (c) makes or seeks to make a general assignment for the benefit of its creditors, or (d) applies for or hasappointed a receiver, trustee, custodian or similar agent appointed by order of any court of competentjurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding the foregoing, if Provider determines, in its sole discretion, that Partner used the Service, or failed to prevent itsCustomers or End Users from using the Service, in any way that results in a violation of the provision of Section2.5, Provider may immediately terminate or suspend Services and/or terminate this Agreement for cause without providing advanced written notice.
4.5 Effect of Expiration or Termination.
(a) If this Agreement is terminated, then all of Partner’s rights and licenses with respect to the Services and any Customer and End User rights to use the Services shall terminate; provided, however, that the Parties shall negotiate in good faith to mutually agree on terms for continuation of the Services to all then-existing EndUsers, in a manner designed to minimize disruption of Services to such End Users. In the event Provider terminates this Agreement or terminates this Agreement pursuant to Section 4.4(b), Provider may, in its discretion, continue to provide the Services to one or more of Partner’s Customers upon terms and conditions that are mutually acceptable to Provider and such Customers.
(b) Upon termination, Partner must destroy or promptly return all of Provider’s Confidential Information and any and all promotional literature, price quotations, order forms, data, information, customer information and other items received by Partner from Provider.
(c) All payment obligations incurred during the term of this Agreement shall survive the expiration or termination of this Agreement, and termination of this Agreement will not relieve Partner of the obligation to pay Provider any and all amounts owed under this Agreement. All other rights and obligations of Provider and Partner, except those that explicitly or implicitly survive termination, shall cease upon termination of this Agreement. Termination of this Agreement shall not relieve either Party of any liability for breach of this Agreement.
(d) In the event Provider terminates this Agreement for cause or Partner terminates this Agreement prior the expiration of the then-current term for convenience, Partner shall be responsible for payment of all charges for the remainder of the then-applicable Term, including any minimum monthly fee, and must return any Devices provided by Viirtue in accordance with Exhibit C hereto. These charges will include, without limitation, unbilled charges for the balance of the Term, all of which will become immediately due and payable upon termination of the Services and must be paid within ten (10) business days thereafter.
4.6 Restoration of Service. If Service has been suspended or terminated for nonpayment or as otherwise provided herein and Partner wishes it continued, Services shall, at Provider’s discretion, be restored when all past due amounts are paid or the event giving rise to the suspension or termination (if other than nonpayment) is corrected and Partner pays a deposit at Provider’s discretion. Nonrecurring charges apply to restored services.
5.1. Credit and Deposit. If requested by Provider, Partner shall complete and submit Provider’s standard credit application. Provider may from time to time conduct a review of Partner’s credit rating and payment history. Additionally, forany existing Services, Provider may require (i) Partner to pay a deposit or (ii) an increase in the existing deposit, upon thefailure of Partner to submit payment of any amount by the due date of the same as a condition to the continued provision of such existing Services. Provider shall refund any deposit paid pursuant to this section, less any payments that Partner still owes to Provider, when Provider determines in good faith, based on Partner’s credit rating and payment history, that such deposit is no longer necessary to ensure payment, but in no event later than after the termination of all Services and termination of this Agreement.
5.2 Payment Terms. Partner shall pay to Provider the fees for Services set forth in Exhibit A hereto and anyapplicable service orders. Viirtue will provide Partner with a monthly itemized invoice, in advance, for the Services togetherwith all other charges due. All undisputed amounts due Provider are payable in full within thirty (30) days from the invoicedate (“Due Date”). Invoice amounts not paid on or before the Due Date shall bear interest at the rate of one and one-halfpercent (1.5%) per month or the highest lawful rate, whichever is lower. Unless otherwise stated in Ex. A, Provider shall invoice Partner for any non-recurring charges (“NRC”) on the first monthly invoice. Partner shall be solely responsible forbilling and collection from its own Customers and/or End Users. No payments due hereunder are contingent on payment due to Partner from its Customers and/or End Users. Partner may not decline tomake payment based on claims of fraudulent or unbillable calls, unauthorized use, bad debts or other uncollectibleamounts. Provider may invoice Partner by e-mail to the billing contact identified in this Agreement. Partner shall beresponsible for updating its billing contact with Provider. The invoice shall be deemed to have been received by Partner on the day the e-mailed invoice is transmitted, provided that Viirtue sends the invoice to the most recent billing contact provided by Partner, and does not otherwise receive any notification that the e-mail transmission failed.
5.3 Invoice Disputes. To the extent that Partner disputes any portion of an invoice, Partner shall notify Provider in writing and provide detailed documentation supporting its dispute within thirty (30) days of the invoice date or Partner’s right to any billing adjustment shall be waived. In the event of a billing dispute, Partner shall timely pay all undisputedamounts. If a billing dispute is resolved in favor of Partner and Partner has withheld the disputed amount, no interest credits or penalties will apply. If the dispute is resolved against Partner, and Partner withheld the disputed amount, Partner shall pay such withheld amount due plus interest as set forth in Section 5.2 from the date the payment was originally due. A dispute may not be based upon a claim that all or a portion of the charges for the Services were incurred by unauthorized users. Partner remains solely responsible for all use of Services ordered by it or billed to its account pursuant hereto, for determining who is authorized to use the Services, and for promptly notifying Provider of any unauthorized use. In the event of nonpayment, Provider reserves the right to assign the late balance to a collection agency, and Partner agrees to reimburse Provider for all expenses related to its collection efforts, including, but not limited to reasonable attorneys’ fees.
6.1 Imposition Taxes and Fees. All charges for the Services are exclusive of any Taxes and Fees (as defined below). Except for taxes based on Provider’s net income or for taxes which Partner possesses an exemption certificate, Partner shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, or other taxes, duties, fees, charges or surcharges(including, but not limited to FUSF and other regulatory fees), however designated, imposed or based upon the sale or use of the Services (collectively “Taxes”). Such Taxes will be individually identified on invoices. Partner shall also beresponsible for payment of fees imposed by Provider to recover costs incurred by Provider in connection with complyingwith legal, regulatory, and other requirements, including without limitation additional federal and state regulatory fees, number registration fees, carrier fees, and federal, state, and local reporting and filing requirements (collectively “Fees”).Notwithstanding the foregoing, Partner is solely responsible for collecting from its Customers and/or End Users any payment of any applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, regulatory fees and charges now in force or enacted in the future, or additional costs that arise from or are a result of the Partner’s provision of Services to its Customers and/or End Users, as well as complying with all legal and regulatory requirements associated with its provision of Services to its Customers and/or End Users.
6.2. Tax and Fee Exemptions. If Partner is entitled to an exemption from any Taxes or Fees, Partner is responsiblefor presenting Provider with a valid exemption certificate (in a form reasonably acceptable to Provider). Provider will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by Provider to Partner following Provider’s receipt of such exemption certificate. Provided that Viirtue timely identifies the Taxes and Fees payable by Partner, Partner shall indemnify, defend and hold Viirtue harmless from payment and reporting of all such Taxes and Fees, including costs, expenses, and penalties incurred by Provider in settling, defending or appealing any claims or actions brought against Provider related to, or arising from, Partner’s non-payment of Taxes or Fees.
7.1 Warranty Disclaimer. THE PRODUCTS AND SERVICES ARE PROVIDED BY VIIRTUE “AS IS” AND “AS AVAILABLE.” PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORYOR OTHERWISE, WITH RESPECT TO ITS PRODUCTS OR SERVICES OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT WARRANT THAT ITS PRODUCTS OR SERVICES OR THEIR USE WILL BE UNINTERRUPTED OR SECURE, WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, WILL MEET THE PARTNER’S OR ANY CUSTOMER OR END USER’S REQUIREMENTS, WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE THECUSTOMERS OR END USERS USE, OR WILL COMPLY WITH APPLICABLE LAWS.
Each Party represents and warrants to the other that (a) it has the full right and authority to enter into, execute, deliver andperform its obligations under this Agreement, (b) it will comply with all applicable federal, state and local Laws, statutes,rules and regulations in connection with the provision and use of the Services, and (c) this Agreement constitutes a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms. Each Party shall be responsible for obtaining at its own expense any necessary governmental or regulatory certifications, credentials, consents, permits, licenses, access rights, easements or approvals (“Required Rights”) with respect to any services used or provided in connection with this Agreement.
7.2 General Limitations. Neither Party shall be liable for loss or damage occasioned by a Force Majeure Event.Except for claims of non-payment by Provider against Partner, each Party’s total liability for any and all causes and claimswhether based in contract, warranty, negligence or otherwise shall be limited to the actual direct damages sustained by the other Party, limited to the lesser of (a) proven direct damages or (b) an amount equal to the recurring charges paid by Partner to Provider during the twelve (12) months immediately preceding the event out of which the liability arose. No cause of action under any theory which accrued more than one (1) year prior to the filing of a complaint alleging such cause of action may be asserted by either Party against the other Party.
7.3 Special Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, INCURRED OR SUFFERED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4 No Liability for Certain Actions. Provider shall not be liable to Partner, its Customers or its End Users for any claims or damages resulting from or caused by (a) unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method unless such unauthorized access was the result of Provider's negligence; (b) Partner’s fault, negligence or failure to perform Partner’s responsibilities; (c) claims against Parter by any other party (except for third-party claims indemnified under Article 8); (d) any act or omission of any other party, including Customers and/or End Users; or (e) equipment or services furnished by a third party, including Customers and/or End Users. Provider is not responsible for the content of any information transmitted or received through the Services. Partner shall be solely responsible for obtaining all necessary legal or regulatory approvals toprovide or terminate the provision of the Services to its Customers and/or End Users. Provider exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Partner, Customer, or End User equipment, and use of the Services is at Partner's own risk.
8.1 Indemnification. Each Party shall indemnify, defend and hold harmless (“Indemnifying Party”) the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from all damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this Agreement except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that Provider is not obligated to indemnify Partner, and Partner shall defend and indemnify Provider hereunder, for any claims by any third party, including Customers and End Users, arising from services provided by Provider that incorporate any of the Services, including but not limited to (a) violation of any applicable Law by Customers and/or End Users; (b) damage to property or personal injury (including death) arising out of the acts or omissions of Customers and/or End Users; (c) termination or suspension of Services of Partner, Customers or End Users, due to a Partner default; or (d) claims by a third party, including without limitation Customers and/or End Users, arising out of or related to the use or misuse of any Services.
8.2 Indemnification Procedures. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.
ALTERNATIVE LANGUAGE:
8.1 Indemnification. In addition to any other indemnification provisions herein, Partner agrees to indemnify, defend, and hold Provider, Provider’s third-party vendors, and the parent companies, sister companies, employees, contractors, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to Partner’s, its Customers’, and/or its End Users’ acts or omissions, consumption, use and/or resale of the Services and/or breach of this Agreement, including, without limitation, any claims asserted by any third party.
9.1. Confidential Information Defined. “Confidential Information” shall mean all information, including this Agreement,regarding the telecommunications needs of Customer and the Services that Provider offers under this Agreement which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information ismarked or identified as confidential or proprietary, or otherwise is generally of a confidential nature. Notwithstanding the foregoing, all written or oral pricing and contract proposals exchanged between the Parties shall be deemed Confidential Information, whether or not so designated.
9.2. Protection of Confidential Information. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request, or destroyed at the Disclosing Party’s option. Information that (i) isindependently developed by the Receiving Party, (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other than by breach of this Agreement, shall not be considered Confidential Information. A Receiving Party, including its officers, directors, employees, partners, Affiliates, agents and representatives, shall hold all Confidential Information in confidence from the time of disclosure until three (3)years following its disclosure. During that period, the Receiving Party:
(a) shall use such Confidential Information only for the purposes of performing its obligations under this Agreement; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure ofsuch Confidential Information to employees that have a need to know for such purposes; (d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in thisAgreement or as required by Law; and (e) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to Law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Notwithstanding anything in this Article to the contrary, the fact that Partner is a customer of Provider shall not bedeemed Confidential Information, and Provider may disclose the same without liability therefor.
10.3. Customer’s Responsibilities. Partner is solely responsible for safeguarding Customer and End User information obtained during the term of this Agreement. In particular, Partner will abide by all applicable data protection and privacy Laws as well as the FCC’s CPNI rules and regulations.
11.1 General Compliance with Laws Covenant. Partner will, at all times, comply with all Laws applicable to this Agreement, Partner’s performance of its obligations hereunder, and Partner’s use or offering of the Services. Without limiting the generality of the foregoing, Partner will (a) at its own expense, maintain all Required Rights necessary to conduct its business relating to the purchase or use of the Services and (b) not engage in any activity or transaction involving the Services, by way of use or otherwise, that violates any Law.
11.2 Communications Assistance for Law Enforcement. Partner and Provider agree to cooperate and comply with all lawful requests under the Communications Assistance for Law Enforcement Act and other Laws. In the event Partner receives any inquiry, subpoena or other communication from a Governmental Authority related to the Services, Partner will notify Provider within twenty-four (24) hours or such earlier time period as required by the communication.
11.3 E-911. The Services include 9-1-1 emergency calling capability. The terms applicable to 9-1-1 emergency callingare set forth in Exhibit B hereto. Partner agrees to provide E911 Notifications to its Customers and End Users and is responsible for ensuring that its Customers provide E911 Notifications to their End Users.
12.1 Dispute Resolution. Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this Article 12.
12.2 Negotiation and Mediation. Provider and Partner shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between employees/representatives of each entity authorized to bind that entity to the terms of any settlement. Either Provider or Partner may give the other Party written notice of anydispute. Within twenty (20) days after delivery of such notice, the designated executives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within thirty (30) days of the first meeting, either Provider or Partner may initiate a mediation of the controversy. The mediation shallbe facilitated by a mediator that is acceptable to both Parties and shall conclude within sixty (60) days of its commencement, unless Provider and Partner agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, Provider and Partner shall enter into a written agreement for the mediation services. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association, provided, however, that the mediation shall occur in Pinellas County Florida and shall apply the substantiveLaws of the State of Florida, and provided further that no consequential damages shall be awarded in any such proceeding and each party shall bear its own legal fees and expenses.
12.3 Confidentiality. All negotiations and any mediation conducted pursuant to Section 12.2 shall be confidential and shall be treated as compromise and settlement negotiations pursuant to applicable Law.
12.4 Injunctive Relief. Notwithstanding the foregoing provisions, either Provider or Partner may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo.
12.5 Continuing Obligation. Provider and Partner shall continue to perform their obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement.
2.6 Failure of Mediation. If Provider and Partner, after good faith efforts to mediate a dispute under the terms of this Agreement (as provided in Section 12.2), cannot agree to a resolution of the dispute, either Party may pursue whateverlegal remedies may be available to such Party, at Law or in equity, before a court of competent jurisdiction and with venue as provided in Section 13.2.
13.1 Subject to Laws. This Agreement is subject to all applicable federal, state and local Laws, Governmental Orders, and any other regulations or rulings of Governmental Authorities, including, but not limited to, theCommunications Act of 1934, as amended, the Telecommunications Act of 1996, the Rules and Regulations of the FCC,and the obtaining and continuance of any required approval or authorization of the FCC or any Governmental Authority.Either Party may terminate its obligations under this Agreement without liability if ordered to do so by the final order or ruling of a court or other Governmental Authority or if such order or ruling would make it impossible for either Party to carry out its obligations under this Agreement.
13.2 Governing Law. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the Laws of the State of Florida. Any litigation arising out of or related to this Agreement shall be brought in Pinellas County, Florida.
13.3 Relationship of Parties. This Agreement does not create a partnership, joint venture or agency relationship between the Parties. Neither Party shall have any authority to bind the other Party to any agreement, understanding or other instrument, in any manner whatsoever.
13.4 Assignment; Binding Effect. Partner shall not transfer or assign, voluntarily or by operation of Law, its obligations under this Agreement without the prior written consent of Provider, which shall not be unreasonably withheld.This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. Each of the undersigned hereby state that he/she has full authority to enter into this Agreement and hereby accepts this Agreement on behalf of the companies identified below.
13.5 Notices. Notices under this Agreement shall be in writing and delivered by certified mail, return receipt requested, by nationally recognized courier, or by e-mail to the persons whose names and business addresses appear below, and such notice shall be effective on the date of receipt, or refusal of delivery, by the receiving Party.
If to Viirtue:
If to Partner:
If to Viirtue:
If to Partner:
13.6 No Third Party Beneficiaries. The representations, warranties, covenants and agreements of the Parties setforth herein are not intended for, nor shall they be for the benefit of or enforceable by, any third party or person not a Party hereto, including without limitation, Customers and End Users.
13.7 Modification and Waiver. No modification of or amendment to this Agreement, or any waiver of any rights underthis Agreement, by either Party will be effective unless in writing. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
13.8 Severability. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid orunenforceable under any applicable Law, it will be replaced with the valid provision that most closely reflects the intent ofthe Parties and the remaining provisions will continue in full force and effect.
13.9 Entire Agreement. This Agreement, including all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Partner acknowledges that except for the representations and warranties expressly containedherein, neither Party has made or makes any express or implied representation or warranty, either written or oral, on behalfof Provider, including any representation or warranty arising from statute or otherwise in Law.
13.10 Counterparts/Facsimile Signatures. This Agreement may be executed in two or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement and any Exhibit may be executed via a recognized electronic signature service (e.g., Docusign) or may be delivered by facsimile transmission, or may be signed, scanned and emailed to Provider, and any such signatures shall be treated as original signatures for all applicable purposes.
13.11 Intellectual Property; Press Releases. Each Party acknowledges that any and all patents, registered andunregistered designs, copyrights, trademarks and all other intellectual property rights whatsoever, which are used in connection with this Agreement shall remain the sole property of entitled owner of such rights or its subcontractors, and that no licenses, assignments, or transfers whether express, implied or otherwise are granted hereunder. Neither Party shall issue any press releases with respect to the transactions contemplated by this Agreement without the prior written consent of the other Party.
13.12 Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaultedunder or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent such failure or delay iscaused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) Law; (e) actions, embargoes or blockades in effect on or after the date of thisAgreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
By:
Name:
Title:
By:
Name:
Title:
1. Enhanced 9-1-1 Versus Basic or Limited E9-1-1. Provider’s 9-1-1 Services ("9-1-1 Services") are differentfrom traditional 9-1-1 service. Partner, its Customers and End Users have access to either basic 9-1-1 or Enhanced 9-1-1 (“E9-1-1”) service, depending on the capability of their emergency center. This Exhibit B is a material part of the Agreement between Provider and Partner. Partner represents, warrants and covenants that(a) it has read, understood and agrees to this Exhibit B; and (b) it shall provide the language in this Exhibit B or materially similar language to its Customers and End Users and shall require its Customers to likewise agree to such language and to provide this information to their End Users.
2. E9-1-1 Service. With E9-1-1 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators haveaccess to the information they need to send help and call you back if necessary.
3. Basic and Limited E9-1-1 Service. Customers and End Users in locations where the emergency center is not equipped to receive, capture, or retain their telephone number and/or address have basic 9-1-1 or limited E9-1-1.With basic 9-1-1 or limited E9-1-1, the local emergency operator answering the call may not have the Customers or End Users call back number or their exact location, so they must be prepared to give them this information.Until they give the operator their phone number, he or she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if they are unable to speak.
4. You Must Notify All Customers and End Users That The 9-1-1 Services are Different Than Traditional 9-1-1 Service. Partner must inform all Customers and End Users and require their Customers and End Users to notifytheir employees, guests and other third persons who may be present at the physical location where they utilizeProvider’s Service of the important differences in and limitations of Provider’s 9-1-1 Services as compared withbasic 9-1-1 or E9- 1-1. The documentation that accompanies the Services will include instructions for obtaining alabel that details the potential nonavailability of basic 9-1-1 or E9-1-1 (the "9-1-1 Label"). It is Partner’s responsibility, in accordance with the instructions that accompany the Service, to advise its Customers and EndUsers to place the 9-1-1 Label on each device that they use with the Service. Regardless of the availability of any9-1-1 Labels, Partner shall give its Customers and End Users clear and conspicuous notice of the restrictions andlimitations on 9-1-1 Service set forth herein and shall require its Customers to provide such clear and conspicuous notice to persons accessing the Provider Services under the Customer’s account. Do not block the telephone number on the handset when dialing 9-1-1.
5. You Must Register the Location of Your Physical Address. For each phone line and telephone number that Partner, Customers or End Users utilize with the Service, they must register with Provider the physical location (including floor and suite number and such other location detail as may be required by state Law in the Customer’sor End User’s location) where they will be using the Services with that phone number. Partner, Customers, and/orEnd Users can complete the registration of their initial location by using the Provider’s VoIP platform. It is incumbent on all users of the Services to confirm the accuracy of their physical address. If any users have any changes to the physical location where they are using a phone number with Provider’s Services, they must notify Provider immediately by updating their location information on the VoIP platform. For residential users or nomadic users who attempt to make unauthorized use of the Services from the new location, 9-1-1 calls made will be sent to an emergency center near the old address. If Partner, its Customers, or End Users fail to provide an accurate physical address or fails to provide any address at all and dials 911, Provider reserves the right to charge Partner up to $250.00 per call. In order to convey accurate location information to the PSAP, each device or user of Provider’s Services may be required to have its own assigned telephone number. Partner and its Customers are solely responsible for determining and ordering the number of telephone numbers required for such End Users.
6. Outages May Disrupt Provider’s 9-1-1 Services. 9-1-1 Services do not function in the event of a power failureor disruption. If there is an interruption in the power supply, the Provider’s Services, including 9-1-1 Services, willnot function until power is restored. Following a power failure or disruption, users may need to reset orreconfigure the device used with the Services prior to utilizing the Provider’s Services, including 9-1-1 Services.Service outages or suspensions or disconnections of service by the underlying broadband provider or Internet Service Provider will prevent all Provider’s Services, including 9-1-1 Services, from functioning. Service outages due to disconnection of Partners, its Customers’ or End Users’ accounts will prevent all of the Services, including 9-1-1 Services, from functioning. Users’ firewall, ISP, broadband provider or other third party may intentionally or inadvertently block the ports over which the Services are provided or otherwise impede the usage of the Services. During the period that the ports are being blocked or Provider’s Services are impeded, Provider’s Services, including 9-1-1 Services, may not function. Partner acknowledges and will require its Customers andEnd Users to acknowledge that Provider is not responsible for the blocking of ports by any firewall or third party or any other impediment to usage of Provider’s Services, and any loss of Provider’s Services, including 9-1-1 Services, which may result. In the event a user loses service as a result of blocking of ports or any other impediment to their usage of the Services, Partner will continue to be responsible for payment to Providers for theServices unless and until Partner disconnects the Services in accordance with the terms of the Agreement.
7. Network Congestion May Reduce Speed of Routing or Answering 9-1-1 Calls. There may be a greaterpossibility of network congestion and/or reduced speed in the routing of a 9-1-1 call made utilizing the Services as compared to traditional 9-1-1 dialing over traditional public telephone networks.
8. Changes to Your Address or Use of a Non-Native Number May Cause Delays in Assistance. Address changes through the process described above require processing, and delays in updating your new address in an applicable automatic location information (“ALI”) database may impair or restrict the ability of emergency personnel to help users. Users should allow at least 12-24 hours for the ALI database to update before the new address will be available to emergency personnel, where available. In addition, if users move to a location that uses a different area code, exchange or other number system from the telephone number that has been assigned to them, processing the emergency call may be delayed by a local emergency center.
9. 911 Dynamic Location Routing. 9-1-1 dynamic location routing enables users of the Services to send a header containing an address that will override the address the user registered for that the Direct Inward Dialing number (“DID”). If the DID the user is dialing from is not registered with an address, Partner will be charged a fee asdetailed above. Additionally, if the DID the user is dialing from is not registered with an address, the call will go a national call center to attempt to route the call to the correct emergency service provider and the address provided in the header will be ignored. If the user sends the header incorrectly or if Provider’s provider cannot locate the address, it will default to the address that the user registered. Users are responsible for ensuring that the header/address being sent has been confirmed by dialing “933” to test service or by contacting their local PSAP to coordinate testing.
10. Disclaimer of Liability and Indemnification. Provider does not have any control over whether, or the manner in which, calls using Provider's 9-1-1 Service are answered or addressed by any local emergency response center. Provider disclaims any and all responsibility for the conduct of local emergency response centers.Provider relies on third parties to assist it in routing 9-1-1 calls to local emergency response centers. Provider disclaims any and all liability or responsibility in the event such third-party data used to route calls is incorrect or yields an erroneous result. None of Provider, its Affiliates, or any of their partners, shareholders, members,directors, managers, officers, employees or agents may be held liable for any claim, cause of action, damage, loss, liability, expense, cost, fee, charge, or penalty, and by using the Provider’s Services Partner hereby waivers, and will required its Customers and End Users waive, any and all such claims, causes of action, damages, losses, liabilities, expenses, costs, fees, charges, or penalties, arising from or relating to Provider’s 9- 1-1 Services unless such claims, causes of action, damages, losses, liabilities, expenses, costs, fees, charges, orpenalties arose solely from Provider’s gross negligence or willful misconduct. Partner shall defend, indemnify, andhold harmless Provider, its Affiliates, all of their partners, shareholders, members, directors, managers, officers, employees and agents, and any other service provider who furnishes services to Partner in connection withProvider’s Services, from any and all claims, causes of action, damages, losses, liabilities, expenses, costs, fees,charges, or penalties (including, without limitation, attorneys' fees) by, or on behalf of, Partner or any third partyrelating to the absence, failure or outage of the Provider’s Services, including 9-1-1 Services, incorrectly routed 9-1-1 calls, and/or the inability of any user of the Provider’s Services to be able to use the 9-1-1 Services or access emergency service personnel, and/or Partner’s or its Customers’ and End Users’ failure to provide notice to all persons accessing Provider’s Services of the limitations on 9-1-1 Services disclosed herein..
11. Users May Want to Make Alternate 9-1-1 Arrangements or Choose Not to Use Provider’s Service. Any users that are not comfortable with the limitations of the 9-1-1 Services should consider having an alternate means of accessing traditional 9-1-1 or E9-1-1 services or disconnecting the Provider’s Service.
12. Outside the United States. Use of the Services from a location outside the United States is prohibited and such users will not be able to use the E9-1-1 Service or place E9-1-1 emergency calls.
13. E9-1-1 Provisioning Intervals. Provisioning E9-1-1 Service may take additional time following the activation of the Service, during which time E9-1-1 emergency calling may not be available or additional fees may be incurred.
14. Required Information. In some circumstances, a user may need to advise emergency service personnel of thenature of the emergency, the user's telephone number, or the user's physical location. If a call is disconnected forany reason, emergency service personnel may not be able to call the user back, determine the user's physicallocation, or dispatch emergency personnel to the user's location.
15. Physical Location. For E9-1-1 Service to work properly, the E9-1-1 Service address in Provider's records MUST correspond to the physical location from which the user will use the Service. A P.O. Box is not sufficient to use as a physical address. The emergency service dispatcher will only send emergency service personnel to user's registered E9-1-1 Service address.
16. Information. Partner will be responsible for accurately providing Provider with all information necessary to ensure the accuracy of ALI and Public Safety Answering Position ("PSAP"), including, but not limited to, all DID/Direct Outward Dialing ("DOD") numbers, and a correct and valid emergency response address for each DID/DOD number. Further, Partner must furnish all updates of this information to Provider. All of Partner’s (and itsCustomers’ and End Users’) information must be accurately provided and provisioned in the ANI database to provide full 9-1-1 service functionality. If a 9-1-1 call is made from an invalid, non-provisioned, or improperly provisioned telephone number, the call will not be normally and automatically routed to the correct PSAP and shall be routed to the backbone E9-1-1 provider's 24/7 Emergency Call Routing Center (ECRC). In such event, a per-call charge will be billed to Customer at a rate determined by Provider from time to time. Customer agrees toindemnify, defend, and hold Provider, Provider’s Affiliates, and the third-party vendors harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to the failure of Customer to provide Provider with accurate database entries and updates thereto. 911 calls rely on the proper assignment of caller ID and calls that are not properly assigned a provisioned number as a caller ID will result in call failures and/or incurred fees.
17. Additional Considerations. If an address provided for by a user cannot be recognized by the system and/orcannot be geo-coded, neither Provider or its third-party carriers, or such other third parties utilized by such carriers, assumes any liability or responsibility for providing emergency calling services for the telephone number associated with such address. In situations where emergency call routing uses the Emergency Call Routing Center ("ECRC"), and if user cannot speak or identify his or her address; (ii) data connectivity between theaddress database and the ECRC is interrupted; or (iii) the user's location information cannot be provided, Partner acknowledges that the Provider and any third-party vendor shall have no ability to assist the user, and Partner agrees to indemnify, defend, hold Provider, Provider’s Affiliates, and the third-party vendors harmless from andagainst any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party as a result of such instances. Partner understands andacknowledges and commits to informing its Customers and End Users of the nature and limitation of 9-1-1 Services. Partner acknowledges and agrees that Provider and any third-party vendor will not be liable for any Service outage and/or inability of a caller to dial 9-1-1 or to access emergency service personnel due to the characteristics and limitation of the Service. Partner understands that all calls must be delivered with theappropriate calling party number ("CPN") representing the user's actual geographic location. Partner will be responsible for 9-1-1 configurations for all active CPNs. "Valid CPN" means the calling party's actual assigned ten (10)-digit telephone number within the North American Numbering Plan assigned by Provider, excluding special purpose phone numbers such as 8XX, 950, 555 and N11. Delivery of valid CPN is a material obligation of Partner under this Agreement. For outbound calls other than calls to 9-1-1, if Partner does not deliver valid CPN,Provider will use commercially reasonable efforts to complete the call. For 9-1-1 calls, if Partner does not deliver valid CPN, Provider cannot complete the call. Partner agrees to indemnify and hold Provider, Provider’s Affiliates,and the third-party vendors, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such partyrelating to the failure of Partner to deliver valid CPN.
18. Secondary Notification Service. When a 9-1-1 call is placed using the Services, an email may be sent to one or more recipient selected email addresses when the Partner purchases such a Secondary Notification Service from the Provider. Provider does not guarantee, however, that any such notice will be sent or reach the selectedemail addresses. If a Customer or End User purchases a multiline solution, with multiple telephone numbers, seats or users, Partner shall require such Customer or End User to designate and maintain a location or email address to which notification of a 9-1-1 call is to be sent, and where such notification is likely to be seen 24/7.
19. Call Volume. If the number of 9-1-1 calls from Partner’s Customers or End Users exceeds three percent (3%) of the total records managed on behalf of Partner in Provider’s ALI database in any applicable month. Provider may charge Partner a $5.00 surcharge per call.
1. Use of Service only; Customer Supplied Equipment; Use of Interface Devices. For Service only customers, Partner, Customers and End Users are generally responsible for supplying, operating and supporting customerpremise equipment for use with the Services. In addition, any non-Provider-supplied equipment must be on the pre-approved compatible device list maintained by Provider or be approved by Provider in writing. Regardless ofwhether Provider approved the customer-supplied equipment, if the self-selected equipment is incompatible with the Services or interferes with the effectiveness and delivery of the Services, Provider shall have no responsibility or liability for such issues, and Partner shall remain responsible for all charges and fees owed to Provider. Provider reserves the right to prohibit the use of any interface device that it has not provided. Partner hereby represents and warrants that it possess all required rights, including software and/or firmware licenses, to use any interface device that Provider have not provided and to ensure that its Customers and End Users have such rights. In addition, Partner shall indemnify and hold Provider harmless against any and all liability arising out ofPartner’s, its Customers’ or its End Users’ use of such interface device with the Services.
2. Tampering with the Device or Services. Partner shall not change the electronic serial number or equipmentidentifier of the Device or perform a factory reset of the Device without Provider’s prior written consent. Partner shall not attempt to hack or otherwise disrupt the Services or make any use of the Services that is inconsistent with its intended purpose. Partner shall ensure that it imposes these requirements on its Customers and End Users. Provider reserves the right to immediately terminate any impacted Services for cause if, in its sole and absolute discretion, it determines that Partner or its Customers or End Users have tampered with the Device or Services that is causing an impact to Services. In the event of such termination, Partner will be responsible for payment of all fees and charges due to the end of the then-applicable Term, as set forth in the Agreement.
3. Theft of Device/Service. Partner shall notify Provider immediately, in writing, if any Devices are stolen or if Partner becomes aware at any time that the Services are being stolen, fraudulently used or otherwise being usedin an unauthorized manner. Partner must provide a detailed description of the circumstances of the Device theft,fraudulent use or unauthorized use of Services. Failure to do so in a timely manner may result in the termination of the Services and additional charges to you. Until such time as Provider receives notice of the theft, fraudulent use or unauthorized use, Partner will be liable for all use of the Services using a Device stolen from Partner, its Customers or End Users, and all stolen, fraudulent or unauthorized use of the Service.
4. Special Order Items Provided Through Provider. Some Devices are deemed not returnable as they are not returnable to the manufacturer and were ordered specifically for Partner; however, these Devices are returnable within thirty (30) days if the item is defective and a suitable replacement will be provided in exchange. There will be no refund unless a suitable replacement cannot be provided.
5. Warranty on Purchased Phones. All Devices purchased through Provider (not any 3rd party) are eligible for awarranty that is the manufacturer’s warranty. The warranty covers defects in the Device, not the loss of a phone or damage to it. Provider will cover replacement Device cost and shipping cost to Partner’s location and returnshipping. The defective Device(s) must be received within seven (7) business days by Provider’s Return Merchandise Authorization department or Partner will be charged the full retail price of a new Device.
6. Risk of Loss. Whether Partner purchases Devices from Provider or leases Devices from Provider, Partner bearsall risk of loss of, theft of, casualty to or damage to the same, from the time it is shipped until the time (if any) when it is returned to Viirtue, in accordance with this Agreement. Partner will be charged FULL MRSP PRICE for each DEVICE that is lost, stolen or damaged.
