THESE ONLINE TERMS OF SERVICE, including the Order(s) and any applicable Service Attachments, which by this reference are incorporated herein (“Agreement”), are a binding agreement between Maxxtel Communications, LLC., a New York limited liability corporation, (“Maxxtel”), and the legal entity identified in the Order (“Customer”). Maxxtel and Customer may be individually referred to as a “Party” or collectively as the “Parties.”
Maxxtel provides services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that customer accepts and complies with this Agreement. By using our service the Customer (a) accepts this agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or equipment.
The Parties agree as follows:
Capitalized terms not defined have the meaning given to them in Attachment A.
A. Term of this Agreement
The Term of this Agreement will commence on the Effective Date and continue until the last Order Form is terminated or expires, unless terminated earlier in accordance with its terms.
E. Services Term and Automatic Renewal
The Services’ term will begin on the Start Date of the initial Order and continue for the initial term set forth in the initial Order (“Initial Term”). Upon expiration of the Initial Term, recurring Services will automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. The term of any recurring Services added to the Account after the initial Order is submitted will start on the Start Date of the subsequent Order, will run conterminously with the then-current term of any pre-existing Services, and will be billed on the same billing cycles as the pre-existing Services.
3. Invoicing and Payment
A. Prices and Charges
All prices are identified in US dollars on the website or Administrative Portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.
Recurring charges for the Services begin on the Start Date, and will continue for the Term. Recurring charges (such as charges for Digital Lines, product licenses, minute bundles, and equipment rental fees) will, once incurred, remain in effect for the Initial Term (as described in an Order Form) or the then-current Renewal Term. Maxxtel will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term. Administrative Fees that Maxxtel is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice.
Outbound calling rates will be applied based on the rate in effect at the time of use.
B. Billing and Payment
All Services and equipment must be purchased via valid credit or debit card at the time of purchase. By providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis. In addition, Customer’s supplied credit card shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, or any overage charges. Recurring charges are billed in advance in the frequency set forth in the Order Form, and usage-based and one-time charges are billed monthly in arrears. Credit and debit card payments are subject to the approval of the card issuer, and Maxxtel will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. Customer is responsible for any credit card chargeback or similar fees for refused or rejected payments that Maxxtel is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, Maxxtel will send Customer a notice using the contact information associated with Customer’s Account. Maxxtel may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Maxxtel under this Agreement, at law or in equity.
Unless otherwise stated at the time of purchase or on the invoice, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the invoice. Any payment not made when due will be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by Law. Maxxtel’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Maxxtel’s rights to collect any amount due. Maxxtel may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Maxxtel so that the amount received by Maxxtel after the withholding tax is deducted is the full amount Maxxtel would have received if no withholding or deduction had been made.
D. Billing Disputes
If a Customer reasonably and in good faith disputes any portion of Maxxtel's charges, it must provide written notice to Maxxtel within thirty (30) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
4. Provision of the Service
A. General Terms
Maxxtel will provide the Services as described in the relevant Service Attachment. Maxxtel may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent.
B. Customer Care
5. Use of the Service
A. Service Requirements
The Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection. Use of the Services with any network, services, or connection not compatible with the Services may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection. Likewise, 2G, 3G, or LTE networks are not recommended for use with the Services. Customer will provide and maintain, at its own cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection.
To minimize unauthorized use, Customer should (a) disable international calling for all Digital Lines, extensions or Accounts for which such calling activity is not needed or not authorized; (b) restrict international calling destinations to those that are needed and authorized; (c) block inbound calls from any caller and area codes from which Customer does not wish to receive calls and block inbound calls with no caller identification if appropriate; (d) disable attachment of facsimile image and voicemail audio files to message notification emails associated with Customer’s Account(s) and/or individual Digital Lines or extensions for which such functionality is not required and to the extent that such files may include sensitive or confidential content.
B. Use Policies
Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services to interfere with the use of Maxxtel’s Services by others, or with the operation of Maxxtel's Network. Customer may not resell the Services. Customer must ensure that its End Users comply with the Use Policies. Any breach of this Section 5B (Use Policies) will be deemed a material breach of this Agreement.
Maxxtel may update the Use Policies from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer.
Any and all use of Maxxtel's Services is subject to and conditioned upon compliance with the following Acceptable Use Policy (“AUP”). If you have an Agreement with Maxxtel, this AUP is incorporated into and made a part of your Agreement with Maxxtel.
This Acceptable Use Policy applies to all Maxxtel's Services. Please carefully review the following to determine if the Services you have purchased are subject to additional, service-specific prohibitions.
A. The Services (including any device, system, network, or account used in connection with the Services, or Maxxtel's Network) may not be used to:
B. Maxxtel's Services are intended for regular business use between individuals and not for high-volume commercial messaging or call center calling. In addition to the prohibitions described in (A) above, Maxxtel's Services, (including any device, system, network, or account used in connection with the Services, or Maxxtel's Network) may not be used to:
The list above is not exhaustive or exclusive. For purposes of this AUP, “End User” means an individual user of the Services, and may be a natural person, and may include but is not limited to a Customer’s employees, consultants, clients, external users, invitees, contractors and agents. Except as otherwise provided, terms defined in the Agreement have the same meanings when used in this AUP.
Maxxtel may act immediately and without notice to suspend or terminate the Services if, in Maxxtel's sole discretion, Customer’s or its End Users’ use of the Services violates the terms of this Acceptable Use Policy.
Customer may cancel any services purchased under this Agreement with written notice to Maxxtel within thirty (30) days of the date in which the purchase becomes effective. Except as otherwise provided in the Agreement between the Parties, in the event of a timely cancelation, Customer shall not owe any fees or charges for the services being canceled in respect of any period subsequent to the date of such written notice (except those arising from continued Usage), and shall be entitled to a pro-rata refund of any prepaid and unused fees for the services subject to the cancelation. All purchases are final after 30 days.
Operation and Limitations of Emergency Service
No one wants to need emergency services, but if an emergency arises, we want to help emergency responders find you. Emergency calling from your IP-telephony desk phone (“desk phone”) and softphone applications (“apps”) is different from emergency calling from traditional telephones. This policy describes how our emergency calling works and your responsibilities as a user.
If you are uncomfortable with any of the service limitations or your responsibilities described below, you should maintain an alternate means of calling emergency services.
If you are the Account Administrator, you must ensure that your users are aware of and understand this information.
Please note that emergency calling is not available from any endpoint that does not permit direct local dialing to other phone numbers within your country. Users of virtual extensions and lines without a direct call back number must have an alternative means to reach emergency services.
How Emergency Calling Works
1. You Identify the Location Where You Are Primarily Using Our Services
Immediately upon activation of your direct dial line (whether used with a desk phone, app, or both), you or your Account Administrator must accurately register the address of the physical location where you will use your line. You can do this from within the app, or your Account Administrator can use the Administrative Portal.
We rely on this address to route your call to the closest emergency responders.
If you move your desk phone or app to a different location, you are required to update your address immediately via Service Web, directly on your app (where available), or by calling support. You must update your physical address immediately to ensure that your emergency call is routed appropriately.
Emergency service response times may be delayed if you do not provide an accurate and current physical address. Your call cannot be routed to the closest emergency response center if we do not know your current location. Most emergency response centers cannot transfer your call to a center in a different region.
Address changes occur in real time for U.S. and Canadian users. Address changes usually take effect within 24 hours for non-U.S. and Canadian users. Please note that it may take up to ten (10) days for addresses to be updated in certain countries.
2. When You Call Emergency Services from Your Desk Phone or Computer-Based App
When you call emergency services from your desk phone or computer-based app, we route the call to local emergency responders. We provide the emergency response center with the location you provided and a number to call you back if the call is dropped. The emergency operator will not know your correct location if you did not update your address as required.
We cannot guarantee and do not control whether emergency response centers can see your location and call-back number. Due to service limitations at some emergency response centers, emergency operators may not have access to this information. Be prepared to provide the emergency operator with your telephone number and current location. If you are unable to speak, the emergency operator may not be able to send help and/or call you back should the call be disconnected.
In certain instances, your call cannot be routed directly to the local emergency response centers. Instead, it is sent to a national emergency contact center. Operators at these centers will ask for your current location so they may route your call to the correct local emergency response center.
Do not disconnect the call until told to do so by the operator. If the call is dropped, you should call back.
4. Service Limitations
Certain events beyond our control may prevent you from reaching emergency services. These include
(i) If you have an Internet or power outage.
(ii) If your broadband, ISP, or IP telephony services are suspended or terminated.
(iii) If you are located in a country other than the one in which your digital line is provided. For example, if you have a US line and travel to the UK, you will not be able to reach the UK emergency services number.
(iv) If you are located in a country where Maxxtel is not permitted or otherwise able to complete emergency calls.
(v) If there is network congestion that may delay or prevent completion of any call to emergency services.
Notification of Service Limitations
You are required by law to notify all persons who may place calls using our services or may be present at the physical location where our services may be used, of the limitations of reaching emergency services from your desk phone or app. You must affix any warning sticker provided in a readily visible place on each piece of equipment that might be used to access or use our services.
Disclaimer of Liability
Your use, and use by your employees, guests and other third parties, of our emergency calling services are subject to the limitations described herein. The availability of certain features, such as transmission of your location or a call back number, depends on whether local emergency response centers support those features and other factors outside of our control. We rely on qualified third parties to assist us in routing emergency service calls and text messages. We do not have control over local emergency response centers, emergency calling centers, emergency responders, or other third parties.
We disclaim all responsibility for the conduct of emergency response centers and all third parties involved in the provision of emergency response services. To the extent permitted by applicable law, you hereby release, discharge, and hold us harmless from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of or response to any emergency or emergency call.
You agree to indemnify and hold us and any of our third-party provider(s) harmless from any and all third-party claims, losses, damages, fines, or penalties arising out of: (i) you or your users’ provision of incorrect information, including incorrect addresses, or failure to update your or users’ locations (ii) your failure to properly notify any person who may place calls using the emergency calling services of the emergency calling limitations; (iii) the absence, failure, or outage of emergency service dialing using the Services for any reason; and (iv) the inability of any user to be able to dial emergency services or to access emergency service personnel for any reason.
Customer may obtain new numbers from Maxxtel for use with the Services, or may port existing numbers, subject to the terms below.
I. Number Availability
Maxxtel makes available phone numbers for use with voice and facsimile services, which Customer may select for assignment to the Customer’s Account. Maxxtel’s listing of a number as available may be erroneous and does not constitute a representation or guarantee that such number is actually available for such assignment. In the event a chosen number is not actually available, Maxxtel may remove such number from an Account.
II. Number Porting
A. Number Port-In Request Procedures.
Customer must keep their existing service active in order to port a phone number to Maxxtel.
In order to request the porting of a telephone or facsimile number into an Account, the Account Administrator for the Account into which you wish the telephone or facsimile number to be ported must provide all information requested as part of the number port-in request process (which may include without limitation providing an executed Letter of Agency) or as otherwise requested by Maxxtel.
B. The Number Porting Process.
In order to request the porting out to another services provider of a telephone or facsimile number currently assigned to an Account, you must follow the instructions specified by that services provider and must provide all information and cooperation requested by the relevant other services providers, Maxxtel, or any other relevant third party. The porting of phone numbers into or out of an Account requires Customer’s provision of specific and detailed information to Maxxtel and/or other service providers, and procedures imposed by other service providers or Maxxtel in order to comply with law and industry standards. Therefore, the completion of any number port request may depend on factors outside of Maxxtel’s control, including delays caused by Customer and/or other service providers.
C. Unauthorized Port Outs
Maxxtel is required by law to comply with any valid porting request. Phone numbers may be ported out from an Account due to acts or omissions of third parties, and it may be difficult or impossible for Maxxtel to: (i) prevent such port-outs: (ii) retrieve numbers ported out of an Account; or (iii) port such numbers back into an Account. Maxxtel has no responsibility or liability due to such port-outs.
D. Accurate Porting Information
Customer represents and warrants that all information provided in connection with any request to port in or port out numbers to or from the Maxxtel's Services (including without limitation any information or representations in any Letter of Agency) by Customer or any party acting on its behalf or direction will be true, accurate, and up-to-date.
E. Customer Compliance with Porting Laws
The porting of numbers is subject to telecommunications and other Laws and may be subject to third-party terms and conditions. Customer, and/or any party acting on Customer’s behalf, shall not: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct in its porting-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephony service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.
F. Release of Numbers
In the event of Account termination or cancellation, all telephone numbers associated with the Account which have not previously been ported to another provider may be released. The cancellation of individual Digital Lines may result in the release of the associated numbers if those numbers have not previously been ported to another provider. Customer is solely responsible for working with its new third-party provider to port out any numbers prior to termination or cancellation of Customer’s Account or Services, or any individual line.
III. Number Publication by Customer
All new number assignments are provisional until verified by Maxxtel and confirmed by Customer. Customer shall not publicize, list, or communicate any number that assigned to the Account, or purchase or invest in any materials or media reflecting any such number unless and until Customer has confirmed that such number(s) is(are) active and functioning as desired. Acceptable methods of confirmation include test calling such number(s) from a non-Maxxtel service plan and verifying that the fees and charges that will be incurred in connection with use of such number(s) are acceptable to Customer.
A. Termination for Cause
Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or iii) to the extent permitted by law upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
B. Effect of Termination
7. Intellectual Property
A. Limited License
B. IP Rights
Except as expressly provided in this Agreement, the limited license granted to Customer under Section 7(A) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Maxxtel and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of Maxxtel Services may violate third-party IP Rights.
As between Maxxtel and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Maxxtel a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.
C. Use of Marks
Neither Party may use or display the other Party’s trademarks, service mark or logos in any manner without such Party’s prior written consent.
A. Restrictions on Use or Disclosures by Either Party
During the Term of this Agreement and for at least one (1) year thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.
Each Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to it in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.
These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of this Agreement by the Receiving Party; which at the time of disclosure was already known to the Receiving Party, without restriction as evidenced by documentation in such Party's possession; or which the Disclosing Party confirms in writing is free of such restrictions.
Upon termination of this Agreement, the Receiving Party will promptly delete, destroy or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain Confidential Information, and upon request will provide the Disclosing Party with certification of compliance with this subsection.
9. Data Protection
A. Data Privacy
Maxxtel respects Customer’s privacy and will only use the information provided by Customer to Maxxtel or collected in the provision of the Services.
B. Data Security
Maxxtel will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification.
Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify Maxxtel immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify Maxxtel may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Maxxtel will not be liable for any charges resulting from unauthorized use of Customer’s Account.
C. Software Changes
Maxxtel may from time to time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent Maxxtel from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by Maxxtel. Maxxtel will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
10. LIMITATION OF LIABILITY
A. Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
B. Direct Damages
EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 10(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
The limitations of liability contained in this Section 10 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
A. Indemnification Obligations
Customer agrees to indemnify and defend Maxxtel and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Maxxtel, or iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless Maxxtel against all damages, costs, and legal fees finally awarded against Maxxtel by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Customer.
B. Defense and Indemnification Procedures
Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
A. Maxxtel Warranty
Maxxtel will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Maxxtel shall pass through to Customer any and all warranties Maxxtel receives in connection with equipment provided to Customer.
B. Customer Warranty
Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.
C. Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND Maxxtel MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT Maxxtel CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
13. Dispute Resolution
A. Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
In the event that the Parties are unable to resolve a Dispute, any related action, lawsuit, or proceeding must be brought in and adjudicated exclusively by state or federal courts located in the city and county of New York, New York, United States of America. Each Party hereby consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions or lawsuits and irrevocably waives any right that it might have to assert that either forum is not convenient or that any such courts lack jurisdiction.
C. Equitable Relief
Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in additional to any other relief to which such Party may be entitled under applicable Law.
Except for actions for non-payment or liability arising from Section 11 (Indemnification), no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit or proceeding as a class or collective action, private attorney general action or in any other capacity acting in a representative capacity.
A. Relationship of the Parties
Maxxtel and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Maxxtel and Customer.
Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (which such consent may not be unreasonably withheld or delayed), however either Party may assign the Agreement and all of that Party’s rights and obligations thereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.
C. Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from a Force Majeure Event. The suspension of obligations under this Section 14D (Force Majeure) may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
D. Third-Party Beneficiaries
Maxxtel and Customer agree that there will be no third-party beneficiaries to this Agreement.
E. Internal Customer Activities
Maxxtel does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third party with respect to ownership or control of any Account or Account Data. All information within Maxxtel’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, Maxxtel may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.
Maxxtel may access your Account and related data as required to provide the Services. However, Maxxtel has no obligation to access your Account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting or other professional services.
F. Headings, Interpretation
The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).
G. Governing Law
The Agreement is governed by the Laws of the State of New York, excluding its choice of Law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Customer’s use of the products or Services.
Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.
I. Export Control
Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
J. Regulatory and Legal Changes
In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with Maxxtel’s ability to provide Services under this Agreement, Maxxtel may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
K. Entire Agreement
The Agreement, together with any exhibits, Orders, and Service Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
L. Order of Precedence
In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order Form; (ii) the applicable Service Attachments; (iii) the main body of this Agreement; (iv) Use Policies and Data Processing Addendum; and (v) and any other document expressly referred to in this Agreement which governs the Services.
Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise). In no event will handwritten changes to any terms or conditions, including in the applicable Order, be effective. Notwithstanding the foregoing, Maxxtel may update this Agreement or any of its Equipment, Use Policies and Data Privacy Policies from time to time. Such updates will become effective thirty (30) days after such update. In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform Maxxtel of its objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, either Party may terminate the portion of the Services affected by the change without penalty by written notice to the other Party. Any use of the Services after the effective date will be deemed Customer’s acceptance of the change.
N. Severability and Waiver
In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.
Notwithstanding anything to the contrary in this Agreement, Maxxtel may identify Customer as a customer (including use of any Customer logo or trademark) and may refer to this Agreement during its earnings calls and in connection with its business deals, press releases, and marketing and/or promotional materials.
Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party.
Q. Electronic Signature and Counterparts
Agreements may be executed electronically and in separate counterparts each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate an Agreement and to have the same force and effect as manual signatures.
The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order will survive expiration or termination of this Agreement or the Order, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.
Attachment A - Definitions
Definitions. Capitalized terms used in this Agreement but otherwise not defined have the following meaning: