1 Definitions. Initial capitalized terms used in the Agreement but not defined in the text thereof are defined in this Section. The following terms have the meanings specified below:
1.1 "Affiliate" means, with respect to a particular Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such particular person, entity or enterprise, where "control" (including the correlative terms "controls", "controlled by", and "under common control with") means, with respect to any Person, the power, directly or indirectly, either to (a) vote a majority of the voting shares or other voting interests in such Person for the election of directors or other governing body of such Person or (b) direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
1.2 "Agreement" means these General Terms and Conditions for Enterprise Customers together with the agreement, between the Company and Subscriber, that references and incorporates these General Terms and Conditions for Enterprise Customers into the text thereof.
1.3 "Ancillary Costs" means all federal, state, local, or foreign taxes, levies, customs, tariffs, duties, regulatory recovery charges and tax-like charges, fees, penalties and surcharges.
1.4 "Confidential Information" means (a) any and all information concerning either Party or its Related Persons which has been or is, in the future, furnished by such Party (the "Provider") or any of its Related Persons to the other Party (the "Recipient") or any of its Related Persons, orally or in writing (whatever the form or storage medium), including information concerning its subsidiaries, Related Persons, businesses, operations, markets, equipment, products, product specifications, designs, documentation, technical data, trade secrets, processes, computer programs (in object or source code form), know-how, research and development, financial condition, results of operations, projections, strategies, marketing information, contracts (including the Agreement and the transactions contemplated by the Agreement), customers, employees and prospects, and (b) any and all notes, analyses, compilations, studies or other documents prepared by Recipient or any of its Related Persons containing or reflecting any Confidential Information described in clause (a). The term "Confidential Information" does not include information which Recipient demonstrates: (i) was or becomes generally available to or known by the public (other than as a result of a disclosure directly or indirectly by Recipient or any of its Related Persons who received such information pursuant to the Agreement); or (ii) was or becomes available to Recipient or any of its Related Persons on a non-confidential basis, prior to its disclosure to Recipient by Provider or its Related Persons; provided that, the source of such information is not otherwise known by Recipient after reasonable investigation to be bound by a confidentiality agreement with Provider or any of its Related Persons, or to be under a contractual, legal, fiduciary or other obligation to Provider or any of its Related Persons not to transmit the information to Recipient.
1.5 "Effective Date" means the date the Agreement was executed by the Company.
1.6 "Governmental Authority" means any federal, state, county, municipal, district or local government or government body, or any public administrative or regulatory agency, political subdivision, commission, court, board or body, or representative of any of the foregoing, foreign or domestic, of, or established by, any such government or government body that has authority with respect to a particular matter.
1.7 "Intellectual Property Rights" means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
1.8 "Law" means any statute, law (including common law), constitution, treaty, charter, ordinance, code, rule, award, injunction, judgment, decree, mandate, interpretation, order, ruling, subpoena or verdict, regulation and any other binding requirement or determination of any Governmental Authority.
1.9 "Liabilities" means all (a) losses, liabilities, injuries, indebtedness, obligations, deficiencies, damages, debts, demands, fines, judgments, diminution in value, sums of money, bonds, bills, agreements (whether oral or written, express or implied from any source), and warranties; (b) encumbrances, liens, hypothecations, pledges, mortgages, title retention agreements, security interests, covenants, exceptions, rights of others, rights of set-off, rights of first offer or refusal or contracts to create any of the foregoing; (c) all actions, suits, claims, demands, debts, dues, complaints, sums of money, accounts, bonds, bills, covenants, contracts (whether oral or written, express or implied from any source), agreements, warranties, controversies, promises, judgments, variances, trespasses, causes of action of every kind and nature, in Law or equity, or otherwise asserted, commenced or threatened against a Person or any of its Related Persons (including fees and expenses of attorneys, brokers, accountants, consultants, computer forensic examiners and other professionals, costs of investigation, litigation, settlement, collection, and judgment); and (d) any Ancillary Costs, interest, damages, costs, expenses, fees, charges and penalties with respect to any of the foregoing.
1.10 "Person" means an individual, a corporation, a partnership, a limited liability company, a trust, an unincorporated association, the media, a Governmental Authority, or any other entity or body.
1.11 "Related Persons" means, with respect to any Person, such Person's Affiliates and its and their officers, directors, stockholders, members, partners, employees, attorneys, accountants, consultants, licensors, suppliers, contractors, representatives, agents, financial and other advisors, heirs, successors and assigns; provided that, Subscriber and its Affiliates shall not be deemed Related Persons of Company and its Affiliates.
2 Term and Termination.
2.1 The obligations of the Agreement and term for each Service Plan begins on the Activation Date of such Service Plan and shall automatically renew at the end of the applicable term or any renewal term for a period of twelve (12) months without further action by Subscriber unless Subscriber provides notice to Company in writing of non-renewal at least sixty (60) days before the end of the applicable term for such Service Plan. On the request of either Party, the Agreement shall terminate at the expiration or termination of the term for all of the Service Plans. Expiration of the term or termination of the Agreement or Service for a Service Plan does not excuse Subscriber from paying all unpaid, accrued charges, including, but not limited to, Termination Costs due in relation to the Agreement.
2.2 Notwithstanding anything to the contrary in the Agreement, Company may terminate the Agreement or terminate Service for any Service Plan effective immediately upon notice to Subscriber, and Subscriber will be responsible for all Termination Costs related thereto, which immediately become due and payable, upon Subscriber's failure to timely pay any amounts due to Company or the occurrence of any other material breach of the Agreement by Subscriber; or Subscriber engaging in a course of conduct which, in the sole judgment of Company, adversely affects Company's reputation or its interests in the promotion, marketing or distribution of its equipment or services, or is otherwise deemed to be just cause for termination pursuant to prevailing Laws.
2.3 The Parties acknowledge and agree that the payment of any Termination Costs constitute liquidated damages and not penalties and are in addition to all other rights and remedies of Company under the Agreement or otherwise, the amount of loss or damages likely to be incurred due to the cancellation of the Service Plan prior to the end of the applicable term is incapable or difficult to precisely estimate, the liquidated damages bear a reasonable relationship to, and are not plainly or grossly disproportionate to, the probable loss likely to be incurred by Company in connection with the cancellation of the Service Plan prior to the end of the applicable term, one of the reasons for the Parties reaching an agreement as to such amounts was the uncertainty and cost of litigation regarding the question of actual damages, and the Parties are sophisticated business parties and had the opportunity to be represented by sophisticated and able legal counsel and negotiated the Agreement at arm's length.
2.4 Company shall not be liable to Subscriber or its Related Persons for any Liabilities on account of a termination, cancellation, or expiration of the Agreement or of any Service Plan or on account of the loss of present or prospective profits, sales or anticipated sales, goodwill, reputation, or expenditures, investments or commitments made in contemplation or anticipation of the Agreement. The expiration or termination of the Agreement or a Service Plan shall not excuse either Party from any Liabilities incurred prior to the effective date of such expiration or termination, and all such Liabilities shall be due and payable in the manner and within the time periods established by the Agreement. Upon the termination or expiration of the Agreement, Company shall have all of the rights and remedies of a seller under applicable Law and as may be provided in the Agreement and Company may cancel any purchase orders outstanding as of the termination or expiration of the Agreement. Any amounts previously paid by Subscriber to Company with respect to any Service Plans or purchase orders outstanding as of the termination or expiration of the Agreement shall be deemed forfeited and Company may retain such amounts without Liability to Subscriber or any other Person, including without any obligation of Company to deliver any Equipment or Services to Subscriber or any other Person. With respect to any purchase orders outstanding as of the termination or expiration of the Agreement, Subscriber agrees within ten (10) days of expiration or termination of the Agreement to pay Company in US dollars an equitable cancellation charge based upon the work completed and commitments incurred in good faith with respect to such purchase order prior to the termination or expiration of the Agreement and the then current price per unit of Equipment or Services in the Agreement.
3 Survival. The respective rights and obligations of Subscriber and Company under this Agreement that by their terms or by their nature would continue beyond (or are to be performed after) the termination or expiration of this Agreement (including any Liability of a Party to the other Party for acts or omissions prior to the expiration or termination of the Agreement) will, in each case, survive expiration or termination of the Agreement.
4 Compliance. Subscriber shall comply with all applicable Laws. Subscriber acknowledges and agrees that Company may record telephone calls made between Subscriber and Company and its Affiliates. Subscriber shall submit to Company, prior to scheduled publication or use of Companies Intellectual Property, all publicity, marketing materials, advertising, claims language and promotional literature related to the Company's equipment or services for approval by Company prior to use or release. During the Term, Subscriber grants Company a limited, nonexclusive right to use the name, service marks, trademarks, trade name, and logo designs of Subscriber or any third Person of which Subscriber is a licensee on the Company's website, marketing materials, advertising, press releases and promotional literature.
5 Equipment.
5.1 Acceptance. Within seven days after receipt of the Equipment, Subscriber shall inspect the same and notify Company in writing with respect to any non-conformity of the Equipment with the accepted purchase order and the Agreement, setting forth in detail the nature and scope of any such non-conformity. Absent timely receipt of such notification by Company, such Equipment shall be deemed accepted by Subscriber. Such inspection or acceptance shall not however be deemed a waiver of any non-conformity which could not reasonably be ascertained by an inspection conducted in accordance with good commercial practices. Any determination of non-conformity hereunder shall be subject to verification by Company. Non-conforming Equipment which has been duly rejected in accordance herewith may be returned by Subscriber for repair, replacement or credit as set forth in Section 5.3 of these General Terms and Conditions for Enterprise Customers. Company shall not, however, be obligated to accept, repair, replace or provide any credit with respect to any Equipment which cannot be verified as non-conforming or which have not been duly rejected and returned hereunder. Subscriber's right of inspection does not alter the passage of title or risk of loss. Rejected Equipment remains at Subscriber's risk until duly returned to and received by Company.
5.2 Warranty. Company warrants that as delivered to Subscriber and for a period of twelve (12) months from receipt by Subscriber (a) that the Equipment sold to Subscriber hereunder substantially conforms to the Equipment specification issued by Company in writing and expressly identified as the Equipment specification and (b) that the hardware components of the Equipment sold to Subscriber hereunder and the media upon which any software components are delivered, will be free from defects in workmanship and materials under normal use and storage. This warranty is provided solely to Subscriber, and to no other Person, whether by way of assignment or otherwise. Company's warranty to Subscriber shall not be enlarged, diminished or affected by, and no Liability shall arise or grow out of, the rendering of technical advice or service to Subscriber. Notwithstanding anything to the contrary in the Agreement, no warranty shall apply to Equipment that (i) has not been found to be defective within the warranty period; (ii) has not been returned to Company in accordance with the procedures set forth herein within thirty (30) days after the expiration of the warranty period; (iii) the defects of which have not been promptly notified to Company in writing by Subscriber upon Subscriber having knowledge of such defects; (iv) has been modified, altered, handled or repaired other than by Company; (v) has been subjected to neglect, abuse, accident, mismanagement, acts of God, negligence, use not in conformity with the Equipment specification, or improper handling, transportation, storage, testing or application other than by Company; (vi) has been or are sold AS IS; (vii) has had its serial numbers or other identifying marks removed, defaced or obliterated; (viii) the defects of which are cosmetic in nature or result from normal use or handling; or (ix) has not been rejected by Subscriber in accordance with Section 5.1 of these General Terms and Conditions for Enterprise Customers within seven days after receipt of the Equipment by Subscriber for any non-conformity which could reasonably have been ascertained by an inspection conducted in accordance with good commercial practices. Subscriber acknowledges that software in general is not error-free and the Parties agree that the existence of such minor errors does not mean it does not perform in substantial conformance to the Equipment specification. It is explicitly acknowledged, for the avoidance of doubt, that VoIP equipment in general is not one hundred percent secure and Company assumes no Liability for any damage suffered whether by Subscriber or other Users because of encroachments by unauthorized Persons. Although updates to the software used by the Equipment may be updated from time to time, Company is under no obligation to provide any updates to software or notice thereof. Equipment repaired or replaced under warranty is warranted for the greater of ninety (90) days from the date of shipment to Subscriber or for the unexpired term of the original warranty.
5.3 Returns. Prior to the return of any Equipment to Company, Subscriber shall request from Company a return material authorization ("RMA"), which RMA shall not be unreasonably withheld by Company. Equipment returned without a RMA will be refused and returned freight collect to the sender. Subscriber shall, at Subscriber's sole risk, cost and expense, securely pack and return such Equipment to Company at Company's designated return facility as set forth in the RMA. Such Equipment shall be clearly labeled with the RMA number. Subject to the conditions and limitations of the warranty in the Agreement, Company shall, without charge to Subscriber, at Company's option, repair or replace any such defective or non-conforming Equipment (or make arrangements therefor), and return the repaired or replaced Equipment to Subscriber, or provide Subscriber with a credit for the same equal to the pro-rated portion of the applicable purchase price for such Equipment based on a linear depreciation monthly over a two year useful life. Any Equipment returned by Subscriber to Company can be replaced with refurbished Equipment. In the event of an improper or untimely rejection, revocation, return, or in the event of a defect or non-conformity not covered by the above warranty, Subscriber shall be responsible for and pay in advance for all labor, materials and charges involved in the shipping, receipt, handling, testing, storage, return, restocking and requested remediation of any Equipment at the then current rates of Company.
5.4 EXCEPT AS SET FORTH IN SECTION 5.2 OF THESE GENERAL TERMS AND CONDITIONS FOR ENTERPRISE CUSTOMERS, NEITHER COMPANY NOR ITS RELATED PERSONS MAKES ANY WARRANTIES OR REPRESENTATIONS WHETHER EXPRESS, IMPLIED OR STATUTORY WITH REGARD TO THE EQUIPMENT OR SERVICES SOLD TO SUBSCRIBER HEREUNDER, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE EQUIPMENT OR SERVICES SOLD TO SUBSCRIBER HEREUNDER WILL MEET SUBSCRIBER'S OR OTHER USER'S REQUIREMENTS. SOME JURISIDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, AND SUBSCRIBER MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM JURISIDICTION TO JURISIDICTION. TO THE GREATEST EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES NOT EFFECTIVELY EXCLUDED BY THE AGREEMENT ARE LIMITED TO NINETY DAYS. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS RELATED PERSONS WARRANT THE EQUIPMENT OR SERVICES SOLD TO SUBSCRIBER HEREUNDER WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION OR THAT COMPANY OR ITS RELATED PERSONS WILL CORRECT ANY ERRORS IN THE EQUIPMENT OR SERVICES SOLD TO SUBSCRIBER. OTHER THAN THE EQUIPMENT SPECIFICATION ISSUED BY COMPANY IN WRITING AND EXPRESSLY IDENTIFIED AS THE EQUIPMENT SPECIFICATION, DESCRIPTIONS CONCERNING THE EQUIPMENT AND SERVICES SOLD TO SUBSCRIBER HEREUNDER, IF ANY, BY COMPANY OR ITS RELATED PERSONS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO USERS (OTHER THAN SUBSCRIBER) OR ANY OTHER THIRD PARTY WITH RESPECT TO EQUIPMENT OR SERVICES. WITHOUT LIMITING THE FOREGOING, THE LIABILITY, IF ANY, OF COMPANY AND ITS RELATED PERSONS FOR DAMAGES RELATING TO ANY ALLEGEDLY NON-CONFORMING OR DEFECTIVE EQUIPMENT OR SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO, IN COMPANY'S DISCRETION, THE REPAIR OR REPLACEMENT OF THE EQUIPMENT OR SERVICES OR THE REFUND OF THE ACTUAL PRICE PAID (TAKING INTO ACCOUNT ANY DISCOUNTS, REBATES AND THE LIKE WHICH MAY LOWER THE PRICE) TO COMPANY BY SUBSCRIBER FOR SUCH EQUIPMENT OR SERVICES.
6 Service
6.1 Service Categories. Company has two (2) general Service categories: VideoTalk, Video Only Service provides video calling only between devices that are active on the Company network ; VideoTalk Digital Video Phone Service provides video and voice calling between devices that are active on the Company network and voice calling to most telephone numbers on the public switch telephone network.
6.2 Emergency Services. Subscriber agrees to the provisions contained in Schedule A (Emergency Services Notice) to these General Terms and Conditions for Enterprise Customers. Such provisions are incorporated herein in their entirety.
6.3 Account Information. Subscriber shall provide, maintain and update accurate, current and complete information relating to Subscriber's use of the Service as reasonably requested by Company. Company shall have no obligation to verify Subscriber's information. Company may rely on Subscriber's information as accurate, current, and complete and Subscriber consents to use of such information as contemplated by the Agreement or in providing the Service. Company may provide Subscriber with access to an online system to manage Subscriber information and the Equipment and Services purchased by Subscriber. Subscriber shall maintain the confidentiality of the access credentials to Subscriber's online account. Subscriber is entirely responsible for any and all activities that occur under Subscriber's account. Subscriber shall notify Company immediately of any unauthorized use of Subscriber's account or any other breach of security. Company will not be liable for any Liability that Subscriber may incur as a result of someone else using Subscriber's account, either with or without Subscriber knowledge. Subscriber shall be liable for Liabilities incurred by Company or other Persons due to someone else using Subscriber's account. Subscriber may not use anyone else's account at any time, without the permission of the account holder.
6.4 Information Disclosure. Company may disclose Subscriber's name, telephone number (including any virtual telephone numbers that Subscriber may have as part of the Service), any communications sent or received by Subscriber, and any other information that Company may have about Subscriber's account, including types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows: (i) in response to a request of a Governmental Agency; (ii) as required by applicable Law; (iii) as necessary to identify, contact, or bring legal action against someone who may be misusing the Equipment or Services; (iv) to protect Company's rights and property; (v) or in emergency situations where disclosure of such information is necessary to protect Company's customers or third Persons from imminent harm. Subscriber acknowledges that the Service and Equipment may permit parties to a call to capture and store information transmitted during the call such as Subscriber's caller identification, IP address or phone number or the sounds and video images comprising the call. These sounds, images and information may be stored and used as part of an address book, audio and video messaging and other public and private uses.
6.5 Use of Equipment and Service. Subscriber agrees that if any User violates or attempts to violate the Agreement, Company reserves the right to immediately terminate the Agreement or all or any part of the Service provided to Subscriber. Subscriber shall be liable for any and all use of the Service by any User. Users are prohibited from using the Equipment or Services with any devices other than Company-approved devices. Notwithstanding this prohibition, if for some reason any User attempts to use the Equipment or Services with a device not provided by Company, Subscriber warrants and represents that such User possesses all required rights, including software or firmware licenses, to use that device with the Equipment and Services. Subscriber agrees that any such use of a device not provided by Company excludes Company from any Liability for such use and Subscriber agrees that any warranties that might otherwise apply to the Equipment or Services are voided as a result of such use. Users shall not resell or transfer the Equipment or Services to another party without Company's prior written consent. Users are prohibited from using the Equipment or Services for auto-dialing, continuous or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. If Users use the Equipment or Services from any country other than the United States of America, Users do so at their own sole risk, including the risk that such activity violates local Laws in the country where User does so. Subscriber is liable for, and will indemnify and hold harmless Company and its Related Persons against all Liability arising from, in connection with, relating to or otherwise with respect to, any or all use of the Equipment or Services from any country other than the United States of America. Company reserves the right to immediately terminate all or any part of the Service as may be required by applicable Law. Notwithstanding anything to the contrary in the Agreement, if Company terminates all or any part of the Service due to Users use of the Equipment or Services from any country other than the United States of America, Subscriber shall not be responsible for any Termination Costs (except for charges for Service incurred prior to the cancellation date (including unbilled charges)) related thereto.
6.6 Subscriber Support. Subscriber agrees to use Company's information technology department to resolve technical and routine customer service issues regarding the Equipment and Services.
6.7 Service Restrictions. The Service does not support 0+ calling or operator assisted calling (including collect, third party billing or calling card calling). The Service may not support 311, 511, 976, 900 or other x11 (other than 911 and 411) services in one or more service areas. Company may, without prior notice, and consistent with applicable Laws, block traffic to or from specific countries, cities, or NPA/NXX codes when Company deems it necessary to take such blocking action (i) to prevent the unlawful use of its services; (ii) to prevent the use of Service in violation of the Agreement; (iii) due to nonpayment for Service; or (iv) due to a network blockage or degradation of Service to Company's customers. Service will be restored as soon as it can be provided following resolution of the applicable issues. Subscriber acknowledges that the Service is not set up to function with outdialing systems including digital video recording systems, home security systems, medical monitoring equipment, fax machines and satellite TV systems. SUBSCRIBER AGREES THAT SUBSCRIBER AND ANY OTHER USER SHALL HAVE NO CLAIM AGAINST ANY COMPANY PARTY FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICE.
6.8 711 SERVICE. Other than VideoTalk Video Only Service customers, Users located within the United States of America with speech or hearing disabilities may obtain assistance in placing a call by dialing 711 to connect with a telecommunications relay service (TRS) center. Specially trained communications assistants at TRS centers provide confidential assistance to allow persons with a wide range of speech or hearing disabilities to complete calls. Emergency calls should not be placed using 711. All Users, including those with speech or hearing disabilities, must dial 911 for emergency services to ensure that they reach the appropriate emergency service agencies dedicated to providing service in the customer's geographic location. Note that 911 and 711 services are not available for VideoTalk Video Only Services.
6.9 Loss of Service Due to Power Failure or Internet Service Outage. Subscriber acknowledges and understands that the Service (a) does not function in the event of power failure and (b) requires a fully functional broadband connection to the Internet (which is not provided by Company) and that, accordingly, in the event of power failure or an outage of, or termination of service with or by, a User's internet service provider or broadband provider, the Service will not function, but that Subscriber will continue to be billed for the Service unless and until the Service Plan is terminated in accordance with the Agreement. A power failure or disruption may require a User to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or Internet outages will also prevent dialing to 911 emergency service numbers. In the event of outages due to Internet or power failure, Subscriber agrees that Company is not required to provide Subscriber any credits or any other form of remuneration for the disruption of Service. In addition, some providers of broadband service may provide modems that prevent the transmission of communications using the Service. Company does not warrant that the Services will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of the Service with any particular broadband service. In the event a User's broadband service is not compatible with the Service, Subscriber agrees that Company is not required to provide Subscriber any credits or any other form of remuneration for a User's inability to use the Service.
6.10 Theft of Service. If the Equipment is stolen or if Subscriber or any User becomes aware at any time that Subscriber's Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner, Subscriber shall notify Company immediately. Failure to do so in a timely manner may result in the termination of Subscriber's Service. Until such time as Company receives notice of the theft, fraudulent use or unauthorized use, Subscriber will be liable for all stolen, fraudulent or unauthorized use of the Service.
6.11 Service Distinctions. Subscriber acknowledges and understands that the Service is not a traditional telephone service. Important distinctions exist between telephone service and the Service provided by Company. In addition, the Service is subject to different regulatory treatment than telephone service. Subscriber acknowledges and understands that this treatment may limit or otherwise affect Subscriber's rights of redress before any Governmental Authority. If Subscriber or User is residing in a jurisdiction where it is forbidden by Law to use the Service, Subscriber and User shall not use the Service in that jurisdiction. Subscriber shall be responsible for verifying that the use of the Service by Subscriber and User in a jurisdiction is permitted.
6.12 Local Number Portability. Subscriber may be able to take, or port, Subscriber's phone numbers used to access the Service (other than with respect to VideoTalk Video Only Service) to another service provider. If Subscriber requests Subscriber's new service provider to port a number from Company, and Company receives Subscriber's request from that new service provider, Company will treat it as notice from Subscriber to terminate the Service Plan associated with that phone number upon successful completion of porting. After the porting is completed, Subscriber will not be able to use the Service for that phone number and Subscriber will be charged Company's cost to port Subscriber's number. As with any other termination, Subscriber will remain responsible for all Termination Costs, which immediately become due and payable. CANCELLATION OF THE SERVICE PRIOR TO CONFIRMATION FROM USER'S NEW SERVICE PROVIDER THAT USER'S TELPEHONE NUMBER HAS SUCCESSFULLY PORTED SHALL RESULT IN AN INABILITY FOR COMPANY TO PORT USER'S TELEPHONE NUMBER AND THE POTENTIAL LOSS OF SUCH TELEPHONE NUMBER.
7 Software License. Subscriber acknowledges and agrees that the Equipment is exclusively for use in connection with the Service and that Users are not given any license to use the firmware or software used to provide Services or provided to User in conjunction with providing the Services, or embedded in the Equipment (collectively, "Licensed Software") other than a limited personal, revocable, non-exclusive, non-sublicenseable and non-transferable license to use Licensed Software in object code format (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement solely for the internal use of User. Subscriber acknowledges and agrees that any and all of the Intellectual Property Rights subsisting in or used in connection with Licensed Software or the information, documents and materials related to any of the foregoing are and remain the sole property of Company and/or any of Company's affiliates, customers, vendors, business partners, or licensors. Some content may be provided to you under a separate license, in which case, that license will govern Subscriber's use of the Licensed Software. Users shall not during or at any time after the expiry or termination of the Agreement in any way question or dispute the ownership by Company or any of Company's affiliates, vendors, business partners, or licensors of such Intellectual Property Rights. Subscriber owns only the hardware or physical media on which Licensed Software is stored. Subscriber agrees not to, and not to allow any other User to, hack or disrupt the Services or Equipment or to make any use of the Services or Equipment that is inconsistent with its intended purpose or to attempt to do so.
To the extent permissible under applicable law, Users agree not to: (a) decompile, disassemble or reverse engineer or otherwise attempt to derive the source code from Licensed Software; (b) alter, modify, translate or adapt Licensed Software or related documentation or create any derivative works based on Licensed Software or related documentation; (c) merge Licensed Software with any other software; (d) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer Licensed Software or related documentation; (e) gain access to or the use of any Licensed Software or part thereof without authorization from Company and/or any of Company's affiliates, vendors, business partners, or licensors; (f) enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by Company; or (g) permit or encourage any Person to do any of the foregoing restrictions. Licensed Software is not fault-tolerant and is not designed, manufactured or intended for any use requiring fail-safe performance in which the failure of Licensed Software could lead to death, serious personal injury, severe physical or environmental damage. Users agree not to use, or license the use of, Licensed Software in connection with any such activities. If you breach the license limitations or restrictions in this Section 7, Company may, with immediate effect, terminate the licenses granted in this Section without prejudice to any available rights and remedies. Upon termination or expiration of the license for any reason, Company may destroy all copies of Software and any related materials in your possession or control.
Users acknowledge that Licensed Software and related documentation are Confidential Information of Company and/or any of Company's affiliates, vendors, business partners, or licensors. The use of Licensed Software may require the processing of personal data. Personal data required to use Licensed Software may need to be submitted to Company. Failing the submission of such data, the use of Licensed Software may not be possible. Users are advised that Licensed Software or related documentation is of US origin and subject to the US Export Administration Regulations, including restrictions on export of the encryption algorithms or source code contained in the Licensed Software. Each User agrees not to directly or indirectly export, re-export, import, or transmit Licensed Software or related documentation contrary to applicable Law. Each User represents that no Governmental Authority has issued sanctions against User or otherwise suspended, revoked or denied User's export privileges.
8 Payment Disputes. Subscriber must provide Company with written notice of any dispute regarding the manner in which Company provided equipment or services to Users or determined charges under the Agreement. Such written notice must be provided within thirty (30) days after the applicable invoice date. The notice must include the supporting documentation evidencing the discrepancy. Subscriber will provide any additional information requested by Company that is in Subscriber's possession or reasonably available to Subscriber regarding such discrepancy. If Subscriber does not provide the written notice described herein, including the supporting documentation, within the thirty-day period, Subscriber hereby waives any and all Liabilities against Company and its Related Persons, and releases Company and its Related Persons from any Liability, arising from, in connection with, relating to or otherwise with respect to such Liability. Subscriber expressly authorizes Company to offset any amounts that Subscriber and its Affiliates owe to Company or any of its Related Persons under the Agreement or any other agreement against any amounts due to Subscriber from Company.
9 Representations and Warranties. Subscriber represents and warrants to Company that: it is validly existing and in good standing under the Laws of the jurisdiction of its incorporation or formation; it has the full right, power and authority to execute, deliver and perform its obligations under the Agreement; its execution of, and performance under, the Agreement does not and will not violate any applicable Law or violate or cause a conflict with or default under any other contract or agreement to which it is subject; when executed and delivered by it and by Company, the Agreement will constitute the legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy and other Laws that affect the rights of creditors generally; it has obtained, or will obtain, all necessary consents and approvals required from any Person, including any Governmental Authority, with respect to entering into the Agreement; there are no Liabilities that will prevent it from fulfilling its obligations under the Agreement; it will not directly or indirectly use any Confidential Information of Company or its Related Persons to engage in or facilitate the trading of any securities, in either case, in violation of any Laws; and it is aware that applicable securities Laws prohibit any person who has material, non-public information concerning Company or its Related Persons from purchasing or selling any securities of Company or its Related Persons, or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.
10 Confidential Information. Any Confidential Information provided to Recipient will be used by such Party and its Related Persons solely for the purpose of complying with its obligations under the Agreement and shall not be used by such Party for any other purpose. Recipient shall treat the Confidential Information with the same degree of care as it would its own, but in no event with less than reasonable care. Recipient shall maintain the strict confidentiality of any Confidential Information provided to it or any of its Related Persons by the other Party or any of its Related Persons and shall not disclose any part of it to any other Person; provided that, (a) it may disclose Confidential Information to those of its Related Persons who have a reasonable need to know such information in order to assist Recipient in complying with its obligations under the Agreement, and (b) it may disclose any such Confidential Information as required by applicable Law, accounting rule, self-regulatory organization or the rules of any securities exchange or market.
Provider shall retain the entire right, interest and title to its Confidential Information. Unless and only to the extent otherwise set forth in the Agreement, no license under any circumstances is hereby granted or implied by the provision of Confidential Information to Recipient. All goodwill created from the use of Confidential Information inures to the benefit of Provider and its licensors. Subscriber shall not de-compile, disassemble or otherwise reverse engineer, copy, manufacture or make alterations to, or other derivatives of, the Company's samples, equipment, services or Confidential Information or the components thereof. In the event of a termination or expiration of the Agreement and subject to the other provisions of the Agreement, Recipient shall immediately (a) cease using the Confidential Information and (b) return to Provider (or destroy) any Confidential Information furnished by Provider or any of its Related Persons. Notwithstanding the return or destruction of the Confidential Information, each Party and its Related Persons will continue to be bound by its obligations of confidentiality and other obligations under the Agreement. Neither Party makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information provided or to be provided by it or any of its Related Persons. No Party nor any of its Related Persons will have any Liability to the other Party or any other Person resulting from any action taken or any inaction occurring in reliance on any Confidential Information provided by the other Party or any of its Related Persons or the contents thereof, except for representations or warranties that are made in the Agreement.
11 Indemnification. Each Party (such indemnifying Party, the "Indemnitor") shall indemnify and hold harmless the other Party and its Related Persons (collectively, the "Indemnitees") from and against any and all Liabilities arising from, in connection with, relating to or otherwise with respect to (a) the bad faith, gross negligence, fraud or willful acts or omissions of the Indemnitor or its Related Persons; (b) any inaccuracy or breach of any representation or warranty made by the Indemnitor in the Agreement; (c) enforcing any acknowledgments, including limitations of liability, for the benefit of any Indemnitee; or (d) any breach by the Indemnitor or its Related Persons of any covenant or agreement contained in the Agreement. All indemnities in the Agreement shall require the prompt payment of costs and expenses to Indemnitees as such costs and expenses are incurred. The Indemnitee will notify the Indemnitor promptly of any such Liability of which it has knowledge. The Indemnitor will bear all expenses arising from, in connection with, relating to or otherwise with respect to the defense or settlement of any such Liability. Any and all indemnified Liabilities shall bear interest from the date incurred until paid at an interest rate of one and one-half percent (1.5%) per month (or the pro-rata portion thereof) or the maximum rate permitted by applicable Law, whichever is less.
Each Party acknowledges and agrees that money damages are an inadequate remedy for breach of the confidentiality or license provisions of the Agreement because of the difficulty of ascertaining the amount of damage that will be suffered in the event that any of the confidentiality or license provisions of the Agreement are breached. Therefore, each Party shall be entitled to equitable relief, including an injunction and specific performance (without the need to post bond or any other security or without being required to submit proof of economic value of any Confidential Information), in the event of any breach of the provisions of the confidentiality or license provisions of the Agreement by the other Party or any of its Related Persons, in addition to all other remedies available to such Party under the Agreement, at Law or in equity.
12 Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY OR ITS RELATED PERSONS SHALL NOT, UNDER ANY CIRCUMSTANCES (WHETHER PURSUANT TO THE AGREEMENT OR OTHERWISE), BE HELD LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, STATUTORY, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL, ANTICIPATED SAVINGS OR LOSS OR CORRUPTION OF DATA, TOLL FRAUD, OR COST OF COVER, BUSINESS INTERRUPTION OR SUBSTITUTE GOODS OR PERFOMANCE, EVEN IF COMPANY OR ITS RELATED PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. COMPANY'S RELATED PERSONS WILL BE THIRD PARTY BENEFICIARIES OF THIS CONTRACTUAL LIMITATION OF LIABILITY AND WILL BE ENTITLED TO ENFORCE THIS LIMITATION DIRECTLY AGAINST SUBSCRIBER, OTHER USERS AND RELATED PERSONS OF USERS. IF ALL OR PART OF ANY LIMITATION OF LIABILITY IN THE AGREEMENT IS FOUND UNENFORCEABLE FOR ANY REASON OR IN THE EVENT THAT ANY EXCLUSION CONTAINED IN THE AGREEMENT SHALL BE HELD TO BE INVALID FOR ANY REASON AND COMPANY OR ITS RELATED PERSONS BECOMES LIABLE FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, THEN, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY AND ITS RELATED PERSONS SHALL ONLY BE LIABLE FOR THEIR RESPECTIVE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN ADDITION TO THE LIMITATIONS ON LIABILITY OTHERWISE PROVIDED IN THE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY AND ITS RELATED PERSONS FOR ANY LIABILITY SHALL NOT EXCEED THE LESSER OF TEN THOUSAND DOLLARS ($10,000) OR THE AMOUNTS PAID TO COMPANY BY SUBSCRIBER DURING THE PRIOR SIX MONTHS.
13 Notices. Notices given pursuant to the Agreement shall be in writing and shall be deemed to have been duly given on the date established by the sender as having been delivered personally, upon confirmation of receipt if sent by facsimile, on the date delivered by a private courier as established by the sender by evidence obtained from the courier, or, if the notice address is in the United States of America and the letter is mailed from within the United States of America, on the fifth day after the date mailed, if mailed by certified or registered mail, return receipt requested, postage prepaid, to the Party being notified at its address or facsimile number set forth in the Agreement or such other address as the addressee may subsequently notify the other Party of in writing in accordance with this paragraph.
14 Governing Law. The validity, construction and performance of the Agreement and any disputes arising out of or relating to the Agreement will be governed by the substantive Laws of the State of New York, without giving effect to any provisions that would result in the Agreement being governed by the Law of any jurisdiction other than that of the State of New York. In addition, the Agreement will not be governed or interpreted in any way by referring to any Law based on the Uniform Computer Information Transactions Act, even if that Law has been adopted in New York, and application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods are hereby excluded. Subscriber hereby consents to the exclusive jurisdiction of, and venue in, any federal court of competent jurisdiction located in the city of New York, New York or any state court of competent jurisdiction located in the city of New York, New York for the purposes of adjudicating any matter arising from, in connection with, relating to or otherwise with respect to the Agreement. Subscriber hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of the Agreement, in such courts and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. SUBSCRIBER UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THE AGREEMENT.
15 Assignment; Binding Effect. Subscriber may not assign, delegate, subcontract or otherwise transfer the Agreement or its rights or obligations under the Agreement, except with the prior written consent of Company. Any attempted assignment, delegation, subcontract or other transfer in violation of this paragraph shall be void. In an event of a change in control of Subscriber or any attempted assignment, delegation, subcontract or other transfer in violation of this paragraph, Company may terminate the Agreement without further Liability on behalf of Company. Company may freely assign, delegate, subcontract or otherwise transfer the Agreement. The Agreement shall inure to the benefit of and be binding upon the Parties and their respective permitted successors and permitted assigns.
16 Force Majeure. Neither Party shall be liable to the other for its failure to perform any of its obligations under the Agreement, other than the payment by Subscriber of the purchase price for any equipment or services, during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond its reasonable control, including strikes, lockouts, labor disputes or shortages, threat of imminent war or other acts of war, threats of imminent terror or acts of terror, acts or failures to act of any Governmental Authority, Laws superimposed after the fact, power failures, utility curtailments, shortages of equipment or supplies, unavailability of transportation, fires, explosions, floods, accidents, earthquakes or other natural or man-made disasters, civil disturbances, acts or omissions of third Persons (other than Related Persons of such Party).
17 Severability. If any provision of the Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect, such determination will not impair or affect the validity, legality or enforceability of the remaining provisions of the Agreement, and each provision is declared to be separate, severable and distinct. To the extent that any such provision is found to be invalid, illegal or unenforceable, the Parties will negotiate in good faith to substitute for such provision, to the extent possible, a new provision that most nearly affects the original intent in entering into the Agreement or to provide equitable adjustment in the event no such provision can be added. In any event, the other provisions of the Agreement will remain in full force and effect.
18 Construction and Interpretation. The terms and conditions of the Agreement set forth in any purchase order confirmation, invoice, acknowledgement, offer, proposal, release, acceptance or other communication or correspondence (irrespective of the timing) from Subscriber which are inconsistent with the Agreement are hereby rejected, notwithstanding any statement providing otherwise therein. Unless the context requires otherwise, (a) "include" (and any of its derivative forms) means "includes, but is not limited to", (b) "may" means has the right, but not the obligation to do something and "may not" means does not have the right to do something, (c) "will" and "shall" are expressions of command and not merely expressions of future intent or expectation, (d) "written" or "in writing" is used for emphasis in certain circumstances, but that will not derogate from the general application of the notice requirements set forth in Section 13 of these General Terms and Conditions for Enterprise Customers in those and other circumstances, (e) singular use of words shall include the plural and vice versa, (f) use of a specific gender imports the other gender(s), (g) unless the context expressly provides otherwise, any approval, determination, election or authorization required to be obtained from a Party shall be at such Party's sole discretion; (h) any reference to a number of days shall refer to calendar days and any reference to "month" shall refer to "calendar month", (i) the word "or" is used in the inclusive sense of "and/or", (j) "$" means United States dollars and all monies payable or to be paid are expressed in United States dollars, (k) a reference to any Law means such Law as amended, modified, codified, replaced or reenacted, and (l) references to "purchase order" shall include "service order".
The language of the Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. Each Party has been given the opportunity to independently review the Agreement with legal counsel and other consultants, and each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions. The Parties have requested that the Agreement and all documents relating thereto be drafted in English. Any translated version is purely for the convenience of the Parties and the English version is controlling. Section headings contained in the Agreement are for reference purposes only and shall not affect the meaning or interpretation of the Agreement. References to specific Sections shall be deemed to be references to Sections of the Agreement. The terms "purchase" and "sell" may be used in the Agreement for convenience to include the transfer by non-exclusive license of certain specified rights in and to software, firmware and documentation, included as part of or associated with any equipment or services. Title to such licensed software, firmware and documentation is reserved to Company and/or any of Company's affiliates, vendors, business partners, or licensors and its licensors. The Parties intend that each representation, warranty, acknowledgement, agreement and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty, acknowledgement, agreement or covenant contained herein in any respect, the fact that there exists another representation, warranty, acknowledgement, agreement or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty, acknowledgement, agreement or covenant.
19 Entire Agreement, Amendment and Waiver. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral. No modifications, amendments, changes or alterations of any term, condition, or provision of the Agreement will be binding on either Party unless in writing and signed by an authorized representative of each Party. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by an authorized representative of the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy that Party may have.
20 Third Party Beneficiaries. The Agreement is entered into solely between the Parties and, except for a Party's indemnification and limitation of liability obligations, will not be deemed to create any rights in any third Persons or to create any obligations of either Party to any third Persons.
21 Counterparts. The Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The Agreement, any and all agreements and instruments executed and delivered in accordance herewith, along with any amendments to the Agreement or other agreements or instruments, to the extent signed and delivered by means of email, a facsimile machine or other means of electronic transmission, shall be treated in all manner and respects and for all purposes as an original signature, agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. Each Party waives any defense to the validity or enforceability of the Agreement arising from the electronic submission and electronic acceptance of the Agreement.