This Master Services, Products, and License Agreement (the “Agreement“) is by and between CBTS Technology Solutions LLC (“Company“) and you (“Customer“) covering: (i) the provision of a variety of information technology/IT and telecommunications services (“Technological Services“) and related staff augmentation or other professional services (“Professional Services” and together with Technological Services, collectively “Services“), (ii) the purchase of IT or telecommunications equipment (“Products“), and/or (iii) the licensing of software, including the purchase of maintenance and support services(“Software“) set forth in separate documents attached hereto or executed from time to time pursuant hereto (the “Related Agreements“), including, without limitation, Statements of Engagement, Statements of Work, Service Schedules, Service Agreements, Right to Engage, Hardware Quotes, Contract Change Requests, Purchase Orders and Bills of Materials. Customer agrees that it shall be bound by this Agreement with CBTS, unless the parties enter into a separate written agreement.
1. Scope of Agreement. Each Related Agreement will include applicable prices or fees, and will specify the Services, Products, or Software to be delivered by Company. Customer and Company agree that the terms and conditions of this Agreement will apply to all Services, Products, or Software provided to Customer, and each executed Related Agreement will be deemed incorporated into and made part of this Agreement.
The terms of this Agreement will prevail over any contrary provision in a Related Agreement unless the Related Agreement explicitly states that it prevails over this Agreement.
Subsidiaries and affiliates of Company (together with Company, the “Affiliated Legal Entities“) may transact business under this Agreement in their own names, and this Agreement, including all rights, benefits and obligations, shall extend and inure to the benefit of each such Affiliated Legal Entity. To the extent an Affiliated Legal Entity other than Company executes a Related Agreement with Customer, this Agreement shall be construed and interpreted with respect to the Services covered therein as if the Agreement had been executed directly between such Affiliated Legal Entity and Customer. For purposes of clarity, no Affiliated Legal Entity shall be responsible for, or assume any liability of, any other legal entity transacting business under this Agreement.
2.1 The term of this Agreement will commence on the Effective Date and will continue in full force and effect for the duration of each applicable Related Agreement executed hereunder, unless earlier terminated pursuant to the terms herein (“Term”). The execution of new Related Agreements following the expiration of the Term shall reinstate the terms of this Agreement.
2.2 Each Related Agreement will set forth an initial term of service. Unless explicitly stated otherwise in a Related Agreement, after the initial term, the Related Agreement will automatically renew on a month-to-month basis until terminated by either party upon thirty (30) days written notice to the other party except that Company may adjust pricing and fees at any time and from time to time.
3. Change Request; Change Authorization.
3.1 Customer may request a change to any Service under an applicable Related Agreement (a “Contract Change Request” or “CCR“) at any time. The CCR must describe the proposed modification(s) to the Services and identify the priority of the request. By submitting a CCR, Customer authorizes Company to perform the required work to make the change. Company, however, reserves the right to review (e.g., to determine if the change is contemplated by, or within the scope of the Services covered by, an existing Related Agreement) and to approve, reject, or further negotiate the CCR. In the event that the CCR requires additional work by Company or affects delivery timelines, Company shall advise of the cost and timeline impact of the changes set out in the CCR for Customer’s approval. The parties shall mutually execute each Contract Change Request.
3.2 If Customer owes Company a past due undisputed amount for Services, Products, and/or Software, Company may, in its discretion, cease to accept or process any Contract Change Requests. Alternatively, Company may, in its sole discretion, require pre-payment from Customer to cover the cost of performing any Contract Change Request. These rights are in addition to all other rights and remedies provided for in this Agreement or the Related Agreement or at law or in equity.
4. Purchase Orders, Acceptance, and Cancellation.
4.1 Customer may order Services, Products and/or Software from Company by submitting a valid purchase order (“Purchase Order”) generated by Customer, specifying the Services, Products and/or Software, quantities, and applicable pricing, on the condition that when required by Company, Customer will also execute an applicable Related Agreement for the Purchase Order.
4.2 Customer warrants and represents that the Services, Products and/or Software purchased from Company are not for resale purposes but are purchased for Customer’s own use. If during the Term of this Agreement Customer resells any Services, Products and/or Software purchased from Company, Company may at its election immediately suspend service to Customer and terminate this Agreement or any Related Agreement.
4.3 Company will notify Customer promptly if Customer’s Purchase Order contains inaccuracies or if Products and/or Software are unavailable, or available but at a different price. Once a Purchase Order is accepted by Company, and, where applicable, the Related Agreement is signed, Company will process the Purchase Order. All Products and Software are subject to availability at the time of order acceptance. Customer acknowledges and understands that (i) Product backorders are not uncommon for Products in high demand; (ii) manufacturers periodically discontinue Products and Software and introduce new models or versions; and (iii) Company has no control over the timing of any Product or Software obsolescence, discontinued availability, or price changes.
4.4 The parties agree that any terms or conditions in Customer’s Purchase Order or other document issued by Customer which are additional to or different than the terms and conditions in this Agreement or in a Related Agreement are not binding on Company, whether or not the additional or different terms would materially alter this Agreement.
4.5 Customer may cancel an order, in whole or in part, only with the written consent of Company. If Company so consents, Customer acknowledges that it will be responsible for any actual out-of-pocket expenses incurred by Company as a result of Customer’s cancellation (including but not limited to fees for restocking, cancellation, and shipping) which Company will pass through to Customer without any markup.
5. Delivery, Inspection, Acceptance and Returns.
5.1 Products will be shipped FOB Origin unless otherwise specified with standard shipping charges added to the invoice. As Company is not the manufacturer of Products, Company cannot guarantee delivery by a set date, but all Products will be delivered on a commercially reasonable basis. Customer may request expedited delivery, where available, for an additional charge. Title and risk of loss pass to Customer upon delivery to the freight carrier at origin.
5.2 Customer shall inspect Products upon delivery and must notify Company of any damaged Products received within fifteen (15) days of delivery. Company will exchange or replace damaged Products in accordance with the Company Returns Policy, a copy of which is available from Company upon request, as such policy may from time to time be modified at the sole discretion of Company, and/or the then current return policy of the applicable manufacturer (collectively, the “Return Policies“). Company will accept return of new, unopened, non-configured Product in accordance with the Returns Policies. Custom-made Products, special order items and cables cannot be returned unless defective. In the event of a conflict in terms, the applicable manufacturer return policy will supersede the Company Returns Policy.
6. Invoices; Taxes; Payment.
6.1 For Services, Customer will pay to Company the one-time (non-recurring) charges and/or the monthly (recurring) charges as set forth in the applicable Related Agreement. Unless otherwise specified in the applicable Related Agreement, Company will render invoices on a monthly basis.
6.2 For Product or Software purchases, Company will send an invoice to Customer when Products or Software licenses are shipped to Customer. The charges for Company-performed configuration (if any), shipping, or other specified charges will be added to the Company invoice.
6.3 Customer will pay all applicable taxes, regulatory fees, interexchange carrier charges, and surcharges relating to the Services, Products, and Software (including but not limited to sales, use, value added, personal property, and universal service fund or USF) other than taxes based on Company’s net income. If Customer is tax exempt, Customer shall provide Company with a copy of its tax exemption certificate before Company begins invoicing.
6.4 Invoices are due and payable in U.S. dollars within thirty (30) days of the date on the invoice, unless the parties otherwise agree in writing. Payments not received by the due date are considered past due. Company reserves the right to impose a late charge of one and one-half percent (1½%) per month (18% per annum) (but not more than the maximum rate permitted by law) on all undisputed past due amounts. Company reserves the right to suspend performance of Services and/or suspend delivery of Products or Software if Customer owes an undisputed past due amount to Company, and to pursue any other right or remedy that Company may have in law or equity. Customer acknowledges and agrees that restrictive endorsements or other statements on checks will not be binding on Company.
6.5 If Customer in good faith disputes any portion of a Company invoice, Customer shall, within thirty (30) days following the invoice date, remit to Company full payment of the undisputed portion of the invoice and notify Company in writing of such dispute in sufficient detail to identify and substantiate the disputed amount. If Customer does not report a billing dispute within sixty (60) days following the invoice date, Customer shall have waived its right to dispute that invoice. Company and Customer agree to use their respective commercially reasonable efforts to resolve any billing dispute within thirty (30) days after Company receives written notice of the dispute from Customer. Any disputed amounts subsequently resolved in favor of Customer shall be credited to Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Company will be due within fourteen (14) days of the resolution of the dispute.
6.6 In the event Customer purchases applicable Services, Products and/or Software through a cloud marketplace, the financial terms (including but not limited to this Section 6) shall not apply, and any financial terms shall instead be governed by the cloud marketplace terms and conditions for purchase.
7. Security Interest. Company hereby reserves a purchase money security interest in the Products and Software to secure payment of the purchase price, license fees and any related installation charges. The security interest will continue in effect until such amounts are paid in full by Customer.
8. Export Control. Customer acknowledges that the export of certain Products or Software is subject to laws of the U.S. and foreign governments, including the export control restrictions contained in the U.S. Export Administration Act. Customer warrants that it shall not export any Product or Software without obtaining all required government authorizations and licenses, and shall comply with all applicable export control laws.
9. Software Licenses. All Software distributed or licensed by Company is subject to applicable license agreements (i.e., End User License Agreement or “EULA”) between the Software publisher and Customer. Company will convey to Customer the requisite license rights and EULA terms and conditions with respect to the Software, as applicable. Customer’s compliance with any Software publisher EULA is Customer’s responsibility. Customer agrees to comply with and be bound by the terms and conditions of the applicable EULA. If any Software is subject to shrink-wrap, click-through, on screen or similar license agreements that must be accepted during any installation or configuration service performed for Customer by Company, Customer shall accept the terms of such agreements and/or authorizes Company to accept the terms of such agreements on behalf of Customer. Where practical, Company will provide copies of the terms of such agreements to Customer for Customer’s review prior to any installation or configuration services by Company.
10. Product and Software Warranties and Exclusions; Assumption of Risk.
10.1 Company shall pass through to Customer all Product and Software warranties from the equipment manufacturer or software publisher to the extent permitted by such manufacturer or publisher, which will be described in separate documents or on the manufacturer’s or publisher’s website. Company does not provide any additional warranties on Products or Software. Company can assist Customer with obtaining extended warranties or service or support agreements, where available, on purchased Products and Software at Customer’s request.
10.2 Unless otherwise expressly provided in this Agreement or in an applicable Related Agreement, Company is not the manufacturer or developer of any Product or Software, and Company makes no warranties, express or implied, with respect to any Product or Software. SPECIFICALLY, BUT WITHOUT LIMITATION, COMPANY DISCLAIMS AND MAKES NO WARRANTY TO CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, FREEDOM FROM INFRINGEMENT CLAIMS OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PRODUCT OR SOFTWARE.
10.3 In the event that Company (or an applicable third-party manufacturer or publisher in the case of Products or Software) chooses to end of life any of the Products or Software provided to Customer, Company will provide Customer with reasonable notice of such intention and will work with the Customer to migrate to a comparable alternative Product or Software. If Customer chooses not to so migrate, then the applicable Related Agreement shall be terminated effective as of the end-of-life date (or such other date as Company and the Customer may reasonably agree on) without the requirement for Customer to pay any early termination fees.
10.4 All material, equipment, or software required for Customer to use the Services, Products or Software and made available to Customer by Company (“Company Provided Equipment“) shall at all times be and remain the exclusive property of Company (or its third-party providers). Upon termination or expiration of the applicable Related Agreement, Customer shall return the Company Provided Equipment to Company in good working condition at Customer’s expense, normal wear and tear excepted. The Company Provided Equipment does not include the Products or Software purchased pursuant to this Agreement or the CPE. Customer shall be responsible for the loss of or damage to the Company Provided Equipment except if caused by the negligence or willful misconduct of Company or its third-party providers.
10.5 In addition, unless explicitly provided therein, the warranties in Section 10.1 do not cover and Customer is liable for the cost of services required to repair damages, malfunctions, or failures caused by: (i) Customer’s failure to follow Company’s or the manufacturers’ written operation or maintenance instructions as applicable and provided to Customer or published on the manufacturer’s website; (ii) Customer’s unauthorized repair, modifications, or relocation of Company Provided Equipment or the attachment of any non-Company Provided Equipment; and (iii) Customer’s abuse, misuse or negligent acts.
10.6 Customer is responsible for: (i) use of the Products or Software by its authorized users and any unauthorized access that occurs other than as a result of Company’s negligence or wilful misconduct; (ii) ensuring its users use the Products or Software in accordance with any acceptable use policy established by Company from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Products or Software.
10.7 Company is not responsible for its inability to provide the Products or Software to the extent caused by Customer’s failure to comply with its obligations under this Agreement or any Related Agreement.
11. Service Warranties and Exclusions; Assumptions of Risk.
11.1 Company warrants to Customer that the Services will be performed in a workmanlike and professionally diligent manner by qualified individuals and that the Services will (for the term of the applicable Related Agreement) materially conform to all requirements and specifications identified in the applicable Related Agreement.
11.2 If Company fails to perform any Professional Services as warranted, Customer shall notify Company promptly of such (and in no event later than fifteen (15) days after the date such nonconforming Professional Services were rendered) with a reasonably detailed description of the nature of the nonconformity. Within thirty (30) days after receipt of such written notification, as Customer’s sole remedy, Company will re-perform such nonconforming Professional Services at no additional charge to Customer or, if such re-performance fails to provide Professional Services as warranted, Company will refund any fees paid to Company to the extent attributable to such nonconforming Professional Services.
11.3 EXCEPT AS STATED ELSEWHERE IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT OR IN ANY RELATED AGREEMENT, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE TO THE EXTENT THAT A SERVICE BREACH RESULTS FROM ANY ACT OR OMISSION OF CUSTOMER, ITS EMPLOYEES, OR AGENTS.
11.4 Customer shall cooperate with and assist Company by providing to Company such information and access to Customer’s facilities, equipment, databases, software (collectively, “CPE“), personnel and other resources as may be required and/or described in the applicable Related Agreement, or as Company may reasonably request that is required for Company to implement and/or perform the Services. Company will comply with Customer’s physical security and safety regulations at Customer’s site as provided to Company in advance. Unless provided as part of the Service pursuant to a Related Agreement, Customer shall solely be responsible for the supply (including obtaining necessary licenses and authorizations), installation and maintenance of any CPE that is necessary to receive the Services. Customer is solely responsible for ensuring that all CPE is compatible with Company’s equipment where required to provide the Services. Company is not responsible for any changes to the Services that render CPE incompatible or necessitate an update or upgrade to the CPE.
11.5 Customer is responsible for: (i) use of the Services by its authorized users and any unauthorized access that occurs other than as a result of Company’s negligence or wilful misconduct; (ii) ensuring its users use the Services in accordance with any acceptable use policy established by Company from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Services.
11.6 Company is not responsible for its inability to provide the Services to the extent caused by Customer’s failure to comply with its obligations under this Agreement or any Related Agreement.
12. Limitation of Liability.
12.1 To the maximum extent permitted by law, the limitations set forth in this Section 12 will apply to any and all claims and causes of action, regardless of whether such claims arise in contract, tort (including, without limitation, Company’s negligence), strict liability, indemnification or any other legal theory. Furthermore, Customer acknowledges that Company has agreed to the applicable pricing and negotiated this Agreement in reliance upon the limitations of liability and disclaimers of warranties contained in this Agreement and that such limitations and disclaimers form an essential basis of the bargain between the parties.
12.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY UNDER ANY CLAIM OR CIRCUMSTANCE (INCLUDING WITHOUT LIMITATION ANY CIRCUMSTANCE INVOLVING A FINDING THAT A WARRANTY OR REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR INTERRUPTION OR LOSS OF USE, LOSS OF DATA, LOST PROFITS OR REVENUES, OR LOST GOODWILL) ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 Notwithstanding anything contained herein or elsewhere, with respect to any claims or causes of action arising from any actual or alleged breach by Company of this Agreement or any Related Agreement or in any way related to any Services, Products, or Software, the recovery and damages available to Customer shall be limited to, and Company’s maximum exposure shall not exceed, the following: (i) for Technological Services, an amount equal to the monthly recurring charges paid by Customer during the preceding six (6) months for the Technological Services at issue, (ii) for Professional Services, an amount equal to the fees paid by Customer for the Professional Services at issue, and (iii) for Products or Software, an amount equal to the purchase price or license fees paid by Customer for the Products or Software at issue. This limitation of liability is cumulative and not per incident.
13.1 Any indemnification related to claims of infringement by Products or Software must come from the equipment manufacturer or software developer, as applicable.
13.2 If Customer is, or in Company’s reasonable judgment may be, the subject of a valid third-party claim of infringement against Customer which relates to any Technological Service provided by Company then Company shall, in its sole discretion, do any of the following as Customer’s sole and exclusive remedy: (i) provide substantially similar substitute Technological Service(s); (ii) obtain, at Company’s expense, rights as required to continue to provide the Technological Service(s); or (iii) terminate Customer’s right to receive the Technological Service(s) and refund to Customer the monthly recurring charges paid for the infringing Technological Service(s) under the affected Related Agreement, pro-rated over the number of months which have elapsed since the effective date of the Related Agreement.
13.3 Customer shall indemnify, defend and hold harmless Company, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors (each a “Company Indemnified Party“), from and against, and Company shall have no obligation to perform any remedies enumerated in Section 13.2 for, any claims, damages or expenses (including reasonable attorneys’ fees) resulting from the improper use or modification by Customer of any Product, Software or other material supplied by Company, which use or modification results in a claim of infringement of any third party patent, copyright, trade secret, or trademark. Customer shall also indemnify, defend and hold each Company Indemnified Party harmless from and against any claims arising out of, resulting from, or relating to: (i) Customer Data (defined in Section 17.1.2), (ii) any CPE, or (iii) any Service to the extent the claim is based on instructions, design or specifications provided by the Customer.
13.4 Each party shall also indemnify, defend, and hold harmless the other party, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors from and against any third-party claims for damages or expenses (including reasonable attorneys’ fees) relating to death, personal injury or damage to tangible personal property resulting from the indemnifying party’s willful misconduct or grossly negligent acts or omissions, to the extent such damages do not result from or are not caused by the willful misconduct or gross negligence of the indemnified party, its employees or agents.
13.5 A party’s obligation to indemnify and defend the other with respect to any claim will be subject to: (i) the indemnified party providing the indemnifying party with prompt written notice of such claim; (ii) the indemnified party, at its expense, having the right to participate in the defense and settlement thereof; and (iii) the indemnified party providing the indemnifying party with the information and assistance necessary to defend or settle such claim as reasonably requested by the indemnifying party. The indemnifying party may settle such claim or proceeding with the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed provided that where the indemnified party is a named defendant or respondent, the indemnified party shall have the right to reject settlement or other disposition of the claim involving or requiring admission or acknowledgement of wrongdoing by or liability on the part of the indemnified party.
14. Independent Contractor. Company shall perform its obligations under this Agreement and the Related Agreements as an independent contractor and not as an employee of Customer. Neither party will have, with respect to the other party or any of its employees, consultants or subcontractors, any obligation with respect to worker’s compensation, insurance, social security, withholding tax nor any other expense customarily paid by an employer with respect to an employee. Nothing contained herein shall create or be construed as creating a partnership, joint venture, agency, or any similar relationship between Company and Customer. Neither party shall have the authority to, nor shall any party attempt to, create any obligation on behalf of the other party.
15. Non-Solicitation. Throughout the Term of this Agreement and for a period of one (1) year thereafter, both parties agree not to directly solicit or hire any of the other party’s employees with whom it has had contact in connection with the performance of this Agreement, unless the hiring party obtains the prior written consent of the other party. Should a party hire an employee or agent of the other party through employment or otherwise within this time period without the other party’s prior written consent, the hiring party shall immediately pay as liquidated damages to the other party an amount equal to the employee’s or agent’s then current annual compensation. The restrictions in this Section will not preclude the parties from employing any such person who contacts the other party through his or her own initiative, or pursuant to a generally circulated public advertisement or other employment search.
16. Confidential Information. During the term of this Agreement and for five (5) years thereafter, neither party shall disclose any terms or pricing contained in this Agreement or any Related Agreement or any confidential or proprietary information disclosed by the other party (“Confidential Information”). Confidential Information includes information that ought to reasonably be deemed confidential, or that is labeled, marked or identified as either “Confidential” or “Proprietary”. Notwithstanding the foregoing, all information concerning Company’s pricing, technical, scientific, and financial information is hereby deemed to be Confidential Information regardless of whether it is marked as such. Confidential Information may not be disclosed to any person or entity except to the recipient’s employees, contractors, lenders and/or other advisors who have a need to know and who are bound in writing to protect the information from unauthorized use or disclosure. The recipient shall use the Confidential Information only for the purposes of this Agreement and shall protect it from disclosure using the same degree of care used to protect its own confidential or proprietary information, but in no event less than a reasonable degree of care. Confidential Information does not include any information which: (i) was already known to the receiving party free of any obligation to keep it confidential at the time of its disclosure; (ii) becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received from a third party without knowledge of any confidential obligation; (iv) is independently acquired or developed without violating any of the obligations under this Agreement; or (v) is approved for release by written authorization of the disclosing party. Further, the recipient may disclose Confidential Information pursuant to a judicial or governmental request, requirement or order. The recipient, however, shall take all reasonable steps to give the disclosing party sufficient prior notice to contest such request, requirement or order. Confidential Information shall remain the property of the disclosing party and shall be returned to the disclosing party or destroyed upon request of the disclosing party or termination of this Agreement.
17. Customer Data; Personal Information; Consent to Use. To the extent that the Services require Company to have access to Customer Data or Personal Information of Customer or its affiliates and subsidiaries (including any Customer Data or Personal Information concerning its or their respective employees and customers), the following provisions apply. Customer represents and warrants that it has secured the necessary consents and authorizations required under applicable law for Company to use such Customer Data or Personal Information in the context of the provision of the Services.
17.1 Definitions. Capitalized terms used in this Section 17 shall have the meanings set forth in this Section 17.1.
17.2 Company Obligations. Company will: (i) comply with the terms and conditions set forth in this Section 17; (ii) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Customer Data or Personal Information under its control or in its possession by all Authorized Persons; and (iii) use and disclose Customer Data or Personal Information only for the purposes for which Customer provides the Customer Data or Personal Information, or access to it, pursuant to the terms and conditions of this Agreement, and not use or otherwise disclose or make available Customer Data or Personal Information for Company’s own purposes without Customer’s prior written consent.
17.3 Customer Obligations. Customer will: (i) comply with the terms and conditions set forth in this Section 17; (ii) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Customer Data or Personal Information under its control or in its possession; (iii) comply with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Customer Data or Personal Information to Company; and (iv) treat Company’s Cyber Incident Response Plan(defined in Section 17.5) as Confidential Information under this Agreement.
17.4 Information Security. Company will comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Customer Data or Personal Information. Company will employ reasonable security measures to protect Customer Data or Personal Data in accordance with the National Institute of Standards and Technology (NIST) 800-53 Cybersecurity Framework. If, in the course of its performance under this Agreement, Company has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information on Customer’s behalf, Company will comply with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, as applicable.
17.5 Data Breach Procedures. Company maintains a cyber-incident breach response plan in accordance with Company’s Information Security Policy (“Cyber Incident Response Plan“) and will implement such plan on the occurrence of a Data Breach. Unless prohibited by law enforcement activities, Company will notify Customer of a Data Breach as soon as reasonably practicable, after Company becomes aware of it. Immediately following Company’s notification to Customer of a Data Breach, the parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with Company’s current Cyber Incident Response Plan.
17.6 Controls Review or Audit. At least once per year, Company will obtain a security controls review or audit performed by an independent third party based on recognized industry standards. Company will make results of such controls review or audit (“Audit Materials”) available to Customer upon request and will timely address noted exceptions. Any such Audit Materials are Confidential Information of Company and shall be subject to the confidentiality requirements and obligations in Section 16.
17.7 Return or Disposal of Customer Data or Personal Information. Upon termination or expiration of this Agreement, Company will promptly return to Customer or securely dispose of all Customer Data or Personal Information in its possession or in the possession of Authorized Persons. If Company is not reasonably able to return or securely dispose of Customer Data or Personal Information, including, but not limited to, Customer Data or Personal Information stored on backup media, Company will continue to protect such Customer Data or Personal Information in accordance with the terms of this Agreement until such time that it can reasonably return or securely dispose of such Customer Data or Personal Information.
18. Offsite Storage of Customer Data. In connection with the protection of Customer’s Data, Company may contract with a third party for the offsite storage of Customer’s Data. Customer hereby authorizes Company to store Customer Data at a location other than a Company data center, and any such offsite storage shall not be deemed to be a breach of the confidentiality provisions.
19. Customer Proprietary Network Information (CPNI). Under U.S. law, Customer has a right and Company has a duty to protect the confidentiality of information regarding the telecommunications services Customer buys from Company, including the amount, type, and destination of Customer’s service usage; the way Company provides services to Customer; and Customer’s calling and billing records (collectively, “Customer Propriety Network Information” or “CPNI”). Customer hereby consents to Company sharing its CPNI with the Company Affiliated Legal Entities, as well as Company agents and authorized sales representatives, to develop or bring new products or services to Customer’s attention; Customer further agrees that the foregoing parties may communicate these new products and services via email. This consent survives the termination of Services provided to Customer and is valid until Customer affirmatively revokes or limits such consent. In addition, Company may monitor Customer’s use of the Services as required for legal or regulatory purposes or as required to provide the Services.
20. Regulatory Service Agreements and Tariffs. The terms and conditions of this Agreement and any Related Agreement are in addition to the applicable regulations and rates set forth in any applicable regulatory service agreements and tariffs. In the event of any conflict between the terms of this Agreement and applicable regulatory requirements, the parties agree to negotiate in good faith to resolve the conflict.
21. Injunctive Relief. Any breach or threatened breach of a party’s obligations under Sections 16 , 22 and 23 of this Agreement or any Related Agreement that addresses the same or substantially similar obligations could cause irreparable harm to the non-breaching party, the financial amount of which would be extremely difficult to estimate. Accordingly, it is agreed that injunctive relief is appropriate for any such breach or threat of such breach. Such remedy will not be deemed to be the exclusive remedy for any such breach but will be in addition to all other remedies at law or in equity.
22. Intellectual Property; License. The Services incorporate and include certain intellectual property rights of Company and its licensors, embodied in hardware, software, documentation, support and employee expertise (“Intellectual Property”). For the Term of, and for purposes of, the applicable Related Agreement for Services, in addition to any licensing terms set out in a EULA applicable to the Intellectual Property, Customer shall have a limited, non-exclusive, non-transferable license to this Intellectual Property solely for Customer’s use of the Services. The Intellectual Property or any derivative or by-product thereof may not be used, sub-licensed, re-sold, rented, or distributed by Customer to any other party. Customer hereby agrees that it will not: (i) decompile, reverse engineer, disassemble, or otherwise reduce the Intellectual Property to a human-perceivable form; (ii) modify, destroy, rent, lease, loan, sell, or distribute all or any part of the Intellectual Property; (iii) create derivative works based in whole or in part upon the Intellectual Property; (iv) disclose to any third party any unique ideas or elements developed by Company which are reflected in the Services, the manner by which the Services operate, or the content of the Services; (v) assist the development of competing Services using the Intellectual Property, or (vi) knowingly permit any other firm or individual to take or perform any action that Customer, in this Section, has agreed not to take. Customer agrees to indemnify and hold harmless each Company Indemnified Party from and against any loss, damage, cost, or expense incurred by Company resulting from any modification or misuse of Intellectual Property. Customer shall have no right, title or interest in or to any network address or identifier (such as IP address or host name) that Company uses in the course of providing Services to the Customer and agrees that Company may change any such address or identifier by providing notice to Customer. Company shall have no ownership rights in any content or data Customer transmits or stores using the Services, however Customer acknowledges that Company may remove content or data from the Services if required pursuant to applicable law. To the extent that the Services require Company to have access to Customer’s intellectual property, Customer grants Company a royalty-free, transferable and sub-licensable license to use the Customer’s intellectual property solely for the purposes of providing the Services.
23. Trademarks; Service Marks; Name and Advertising. Each party acknowledges that it will acquire no rights in any trademark, service mark, trade name, or other Intellectual Property used or owned by the other party by reason of this Agreement and will take no action that violates this acknowledgement. Neither party will use any trademark, service mark, trade name, nor other Intellectual Property used or owned by the other party without the prior written consent of such other party. Each party will submit to the other party all advertising, press releases, and other publicity matters relating to this Agreement in which such other party’s name or mark is mentioned or language from which the connection of the name or mark may be inferred or implied and will not publish or use such advertising, sales promotion, press releases, or publicity matters without the other party’s prior written approval.
24. Assignment. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may, upon written notice to the other party, assign its rights and obligations under this Agreement to one or more of its affiliates or subsidiaries or to any party acquiring substantially all of its assets. If Customer is merged with, acquired by, or acquires a competitor of Company then Company shall have the option to terminate this Agreement upon such merger or acquisition. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of both parties.
25. Subcontracting; Multi-Jurisdictional Service Delivery. Company may subcontract any or all of the Services to be performed under this Agreement. Customer acknowledges and agrees that Services provided by Company under this Agreement may be performed nearshore or offshore with an Affiliated Legal Entity. Any Services that are described in a Related Agreement may be performed within the borders of the jurisdiction of the Affiliated Legal Entity. This shall include any work performed by subcontractors of the Affiliated Legal at all tiers. Company shall remain responsible for the performance of such subcontractors and their adherence to this Agreement or Related Agreements.
26. Notices. All notices hereunder must be in writing and will be conclusively deemed to have been received by a party hereto if: delivered personally to such party; or sent by recognized overnight courier service or e-mail with tracking capabilities, or by certified or registered mail, return receipt requested, postage prepaid, addressed to such party at the address set forth in this Agreement or to such other address as either party may give to the other in writing for such purpose. All notices will be effective upon receipt. Changes to the addresses of the parties must be given in accordance with the foregoing methods and will be deemed effective upon receipt.
27. Dispute Resolution; Binding Arbitration. The parties will attempt in good faith to promptly resolve any dispute arising out of or relating to this Agreement or any Related Agreement. In the event resolution cannot be reached, the disputing party shall give the other party written notice of the dispute. If the parties still fail to resolve the dispute within thirty (30) days of receiving such written notice, either party may seek arbitration. Except for proceedings requesting equitable remedies, all disputes shall be finally settled by binding arbitration in Cincinnati, Ohio by a single, mutually agreeable arbitrator, who is knowledgeable in the information technology field pursuant to rules and procedures of the JAMS then in effect when the claim is filed. The parties agree that this Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. The arbitrator’s decision and award will be final and binding. The arbitrator may, as a part of the arbitration award, permit the substantially prevailing party to recover all or part of its legal fees and other out-of-pocket costs incurred in connection with such arbitration. An arbitrator may award any relief or damages (including injunctive or declaratory relief) that a court could award, except an arbitrator may not award relief in excess of or contrary to what this Agreement provides and may not order relief on a consolidated, class-wide, or representative basis. All administrative fees and expenses of arbitration will be divided equally between Customer and Company, and each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.
28.1 Either party may terminate this Agreement or any Related Agreement if the other party fails to perform or comply with any material term or condition of this Agreement or any Related Agreement and such failure continues un-remedied for thirty (30) days after the defaulting party’s receipt of written notice thereof from the non-defaulting party specifying the failure. In addition, Company may suspend Services or terminate this Agreement and any Related Agreement if Customer fails to pay any undisputed amount which is due to Company under this Agreement or any Related Agreement within fifteen (15) days after receipt of written notification from Company of non payment. Company may also terminate this Agreement and any Related Agreement immediately if Customer engages in any misuse of the Services, Products or Software, or practices which are illegal. In addition to Company other rights and remedies, Company may in its sole discretion assess all termination fees and charges described in Section 28.3 if Company terminates this Agreement under this Section. Any accrued rights to payment and other remedies for breach of this Agreement will survive termination of this Agreement and any Related Agreement, regardless of the cause for termination.
28.2 Either party shall have the right to terminate this Agreement or any Related Agreement immediately, without further obligation or liability, if: the other party becomes insolvent or ceases its normal business operations; voluntary or involuntary proceedings are commenced under any bankruptcy, reorganization, or other similar laws of any jurisdiction by or against the other party; any order is made or any resolution is passed for the winding up, liquidation, or dissolution of the other party; a receiver is appointed for it or its property; any of its goods or properties are taken in execution; or, it makes a general assignment for the benefit of creditors.
28.3 Customer may terminate this Agreement or any Related Agreement for convenience at any time upon thirty (30) days written notice to Company. Unless otherwise expressly provided in an applicable Related Agreement, if Customer terminates this Agreement or a Related Agreement for convenience prior to the end of the Term, Customer is responsible for: (i) one hundred percent (100%) of all deferred payments and a pro-rata portion of any charges previously waived by Company to be paid at a later time; (ii) one hundred percent (100%) of all non-cancellable or non-refundable third party charges incurred as a result of the termination; (iii) all incurred or outstanding expenses for Services performed or Products or Software delivered or up to the effective date of cancellation or termination; and (iv) an early termination fee equal to fifty percent (50%) of its monthly recurring charges identified in the terminated Related Agreement(s) multiplied by the number of months remaining in the term of the terminated Related Agreement(s) for Technological Services. Customer will pay such amounts owed and termination fees within thirty (30) days after the termination date. Customer acknowledges that these termination fees are a genuine pre-estimate of the damages Company will incur as a result of the termination.
28.4 If Company reasonably deems it necessary as a result of a substantiated concern relating to Company’s networks or its provision of services to other customers, Company may at any time and without notice restrict or suspend Customer’s access to the Services.
29. Survival. All provisions of this Agreement which expressly or by their nature are intended to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement.
30. Governing Law and Jurisdiction; Limitations. Subject to Section 27 of this Agreement, this Agreement, all rights and obligations between the parties to this Agreement, and any and all claims arising out of or relating to the subject matter of this Agreement, will be governed by the laws of the State of Ohio, without regard to its conflicts of law principles. The parties agree that any legal action or proceeding with respect to this Agreement or any Related Agreement will be brought and maintained only in the courts of Hamilton County, Ohio or the United States District Court for the Southern District of Ohio, and each party submits to the jurisdiction of such courts. The parties waive to the fullest extent permitted by law any objection (including inconvenience of forum) they may now or hereafter have to the venue in any such action or proceeding in any such court. Any arbitration or legal action between the parties arising under this Agreement or any Related Agreement must be filed within two (2) years after the occurrence of the event giving rise to such cause of action.
31. Entire Agreement; Amendments.
31.1 This Agreement, and any Related Agreement(s) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all proposals, oral or written, all negotiations, discussions, and all past dealings between the parties relating to the subject matter hereof. Each party acknowledges and agrees that no employee, officer, agent, or representative of the other party has the authority to make any representations, statements, or promises in addition to or different than those contained in this Agreement and any Related Agreement, and that it is not entering into this Agreement or any Related Agreement in reliance upon any representation, statement, or promise of the other party not expressly stated in this Agreement or any Related Agreement.
31. This Agreement may be amended only in writing, executed by an authorized representative of each party.
32. Force Majeure. Except for the obligation to make payments for amounts due, neither party shall be liable to the other nor deemed in default of this Agreement if and to the extent that such party’s performance of this Agreement is delayed or prevented due to a Force Majeure event. The term “Force Majeure” means an occurrence that is beyond the reasonable control of the party affected and occurs without its fault or negligence, including but not limited to acts of God, fire, explosion, earthquake, flood, storm, lightning, or other similar catastrophe; vandalism; cable cut; cyber-attack; any law or regulation of any governmental entity, court, or civil or military authority having jurisdiction over either of the parties; national emergencies, terrorism, insurrections, riots or wars; strikes or lockouts; or manufacturers’ shortages or constraints. In the event of such a delay or inability to perform, the time for performance will be extended for a period of time equal to the length of the Force Majeure event. Notwithstanding the foregoing, if Company is unable to deliver Services for seven (7) consecutive days due to a Force Majeure event, Customer shall not be obligated to pay Company for the affected Services for so long as Company is unable to deliver.
33. Legality; Enforceability. If any provision contained in this Agreement is held to be invalid or illegal in any respect, such invalidity or illegality will not affect any other provision hereof, this Agreement will be construed as nearly as possible to reflect the original intentions of the parties, and all other provisions will remain in full force and effect.
34. Request for Information. If Company and/or its Affiliates are required to provide information or documentation (including but not limited to requests for information made by Customer or its employees or customers) issued by a court or governing body of competent jurisdiction (or made pursuant to a subpoena) in any form (including but not limited to electronically stored information) related to the Services, Products and/or Software relationship with Customer, then Customer shall be responsible for Company’s reasonable costs to comply.
35. Publicity. Customer agrees that Company may use Customer’s name in a reasonable manner for the purpose of references, presentations, and Customer identification lists, brochures, manuals and marketing.
36. No Third-Party Beneficiaries. This Agreement and all Related Agreements are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement or any Related Agreement.
37. Waiver. The waiver by a party of any breach of this Agreement by the other party will not operate as a waiver of subsequent breaches of the same or different kind. The failure of a party to exercise any rights under this Agreement in a particular instance will not operate as a waiver of such party’s right to exercise the same or different rights in subsequent instances. No course of dealing or failure by any party to strictly enforce any term, right or condition of this Agreement or any Related Agreement will be construed as a waiver of such term, right or condition.
38. Election of Remedies. Except as otherwise expressly stated, the rights and remedies of a party with respect to any failure of the other party to comply with the terms or conditions of this Agreement (including, without limitation, termination rights) are not exclusive, and the exercise thereof will not constitute an election of remedies.
39. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be an original and all of which together will constitute one and the same agreement.
40. Headings. Headings are for convenience of reference only and will in no way affect interpretation of this Agreement.