TERM: Unless otherwise specified in an addendum, the term of this Agreement shall commence on the service activation date. Service plans having a defined term will automatically renew for a one-year period at the same discounted term pricing existing at the time of renewal as long as BridgeConnex’s underlying carriers do not raise their price in their underlying agreement to BridgeConnex. It is the goal of BridgeConnex to renegotiate at the end of the term for a new lower pricing model for client from its underlying carrier.
Payment Terms: Customer assumes responsibility for, and agrees to pay, Company all amounts due for the Services, including all applicable usage-sensitive, monthly recurring and non-recurring charges and associated taxes, fees and surcharges. Usage-sensitive charges will be billed monthly in 9arrears; recurring charges will be billed monthly in advance; nonrecurring charges will be billed upon completion of the associated activity. All invoices are due and payable within thirty (30) days of the date of the invoice (the “Due Date”). Customer shall send payments to the address specified in the invoice. A monthly late payment charge of one and one half percent (1.5%) of the past due balance may be assessed on any amounts not paid by Customer on or before the Due Date. A returned check charge of twenty-five dollars ($25.00) may be assessed in the event that Customer’s check is returned for insufficient payment. Billing shall be deemed correct and binding on Customer unless Customer notifies Company in writing of a dispute within thirty (30) days following presentation of the invoice. Customer agrees to pay all costs incurred by Company in collecting any amounts due hereunder, including, without limitation, reasonable attorney and collection agency fees.
WARRANTY: COMPANY SHALL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICES, BUT COMPANY MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SERVICES OR THE FACILITIES OR EQUIPMENT BY MEANS OF WHICH THE SERVICES ARE PROVIDED, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY CANNOT AND DOES NOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME OR SPEED, OR THE INTEGRITY OF DATA STORED OR TRANSMITTED VIA THE SERVICES.
Force Majeure. Neither party shall be liable for any delay or failure in performance, other than timely payment of amounts due here under, due to Force Majeure, which shall include, without limitation, acts of God, earthquake, labor disputes, terrorist activities, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, third party non-performance, equipment failures, transportation difficulties, or other occurrences which are beyond the delayed party’s reasonable control, provided that the delayed party provides the other party with prompt notice of such delay.
LIMITATION OF LIABILITY: COMPANY SHALL NOT BE LIABLE FOR DAMAGES, INJURY, COSTS OR CLAIMS ARISING OUT OF (I) DELAYS, MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, OR DEFECTS IN TRANSMISSION; (II) INADVERTENT DISCLOSURE, CORRUPTION OR ERASURE OF DATA; (III) SERVICES, FACILITIES OR EQUIPMENT NOT FURNISHED BY COMPANY; (IV) ANY ACT OR OMISSION OF A THIRD-PARTY VENDOR FURNISHING ANY PORTION OF THE SERVICES OR THE EQUIPMENT OR FACILITIES USED TO PROVIDE THE SERVICES; AND (V) ANY EVENT THAT PREVENTS COMPANY FROM PERFORMING ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, IF THAT EVENT IS BEYOND THE REASONABLE CONTROL OF COMPANY. COMPANY’S LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED AN AMOUNT EQUAL TO THE COMPANY CHARGES INCURRED BY CUSTOMER FOR THE PERIOD OF SERVICE IN WHICH THE LIABILITY WAS INCURRED. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ECONOMIC LOSS, LOSS OF USE, LOST PROFITS, LOST REVENUE, OR LOST GOODWILL, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT NEGLIGENCE OR OTHERWISE, EVEN IF COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Indemnification: Customer agrees to defend, indemnify, and hold harmless Company and Company’s employees, officers, directors, agents, parents, affiliates and subsidiaries from any losses, damages, costs or expenses resulting from any and all claims and liabilities, including costs and expenses and reasonable attorney’s fees, attributed to, arising out of or resulting from Company’s provision or Customer’s use of the Services. These indemnification obligations shall survive termination or expiration of the service term.
Termination: Company may temporarily suspend or permanently terminate provision of the Services without notice or liability to Customer (a) in the event that Customer (i) fails to timely pay any amount due to Company, (ii) provides insufficient or fraudulent billing information, or (iii) violates these Terms and Conditions, Company’s Acceptable Use Policy, the Tariffs, or applicable laws or governmental rules or regulations; (b) by reason of an order of a court or regulatory or other governmental authority; (c) upon institution by or against Customer of a proceeding for relief under the Bankruptcy Code, the insolvency of Customer or the appointment of a receiver of Customer’s property; or (d) Company deems such action necessary to protect itself or third parties against fraud or to protect its personnel, agents, or services; provided, however, that such suspension or termination of the Services shall not relieve Customer of its obligation to pay charges due for its remaining service term. In such event, Company may also pursue such other remedies as may be available to it at law or in equity. Neither termination nor expiration of Customer’s service arrangement shall relieve Customer of liabilities previously accrued here under.
Acceptable Use Policy: The Services shall be used only for lawful purposes. In using the Services, Customer shall not engage in any illegal, abusive or unethical activity, including, but not limited to, display or distribution of pornography or other obscene, vulgar, offensive, profane or sexually explicit materials, perpetration of fraud, libel, defamation or other violations of privacy, hacking, spreading computer viruses, pirating software or other materials, promoting or conducting gambling, publishing threats or racial, ethnic or sexual slurs, or engaging in intimidation or other forms of harassment. Customer shall not upload, post or otherwise transmit any content that it does not have a right to transmit under any law or under contractual or fiduciary relationships, including, but not limited to, insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or content which violates or infringes any copyright, trademark, patent, statutory, common law or proprietary rights of others. Customer shall not transmit unsolicited messages, list Company in any spammed message, either as an originator, intermediary, or reply-to address, or engage in mail-bombing, i.e., sending large volumes of unsolicited e-mail to individuals or to individual business accounts. Customer commits to indemnify and hold harmless Company, as well as Company’s directors, officers, employees, agents, and representatives, from any and all claims of whatever nature arising out of its failure to fully comply with these acceptable use policies.
Additional Customer Responsibilities: Customer shall supply space, equipment, network, wiring, electrical power, and environmental conditions suitable for, and compatible with, Company’s provision of the Services. Any equipment provided by Company shall remain the property of Company and shall be promptly returned to Company in good working condition upon termination or expiration of the service term. Customer is responsible for all use of the Services, with or without its knowledge or consent. Customer is solely responsible for maintaining the security of its account, password, files, network and user access. Customer acknowledges that Company does not monitor, review or restrict information, communications, software, photos, video, graphics, music, sounds, services or other material available from third parties via the Services (“Content”), and that Customer assumes responsibility for and bears all risks associated with the accuracy, completeness, reliability or usefulness of said Content. Customer shall be liable for damage to Company equipment and network facilities caused by (i) Customer, or Customer’s agents, employees or suppliers; or (ii) malfunction or failure of any equipment or facility provided by Customer or its agents, employees or suppliers.
Installation: Customer represents that it has or has secured the authority necessary for the installation on its premises of all equipment necessary to provide the Services. Customer shall secure all licenses, permits, rights-of-way and other arrangements necessary for such installation. Customer shall allow Company reasonable access and right-of-way to Customer’s premises for equipment installation and maintenance. Company shall exercise commercially reasonable efforts to schedule and conduct installation and maintenance activities so as not to unreasonably interfere with Customer’s operations. Customer agrees to pay a Missed Appointment Fee if (i) Customer cancels a scheduled appointment less than twenty-four (24) hours before such appointment; or (ii) the Installation Technician arrives at the site and is unable to complete installation because Customer is not available and/or unable to grant access to all areas required for successful installation.
Intellectual Property: Company grants Customer a non-exclusive, non-transferable, revocable, limited license or sub-license to use the Services, and all hardware and software necessary to access the Services, in strict accordance with these Terms and Conditions, said license and sub-license to automatically terminate upon termination of Company’s provision of the Services to Customer. Title, property rights, software licenses, hardware licenses and agreements, including all intellectual property rights (“IP Rights”), are and shall remain with Company, whether or not they are embedded in the Services. Customer will not acquire, and shall not claim, any right, title or interest in or to the IP Rights through purchase and use of the Services. IP addresses assigned by Company for Customer’s use remain the property of Company and shall revert back to Company upon discontinuance of the Services.
Dispute Resolution: The parties shall attempt to resolve all disputes in the spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of amounts due for the Services and requests for injunctive relief) shall be the subject of mandatory arbitration. Such arbitration shall be conducted in accordance with the U.S. Arbitration Act (Title 9, U.S. Code), and under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Boston, Massachusetts. The decision of the arbitrator shall be final and binding upon the parties. Judgment upon the arbitration award may be entered in any court of competent jurisdiction.
Miscellaneous: All notices and other communications required or permitted here under shall be in writing and shall be deemed to have been given when received by the party to whom the notice is directed. Customer may not assign or transfer any of its rights or obligations under this service arrangement without the express, prior written consent of Company. The rights and obligations under this service arrangement shall survive any merger or sale of a party and shall be binding upon the successors and permitted assigns of each party. These Terms and Conditions shall be binding upon and inure to the exclusive benefit of the parties hereto, and their respective permitted assigns, heirs, successors and legal representatives. It is not the intent of the parties that there be any third party beneficiaries of this service arrangement. Unless otherwise provided herein, these Terms and Conditions and the Order Form(s) may be amended only by an instrument in writing duly executed by both parties. No waiver by a party of a breach of any of these Terms and Conditions by the other party shall be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other provision hereof. No failure on the part of either party to exercise, and no delay in exercising any right or remedy here under shall operate as a waiver thereof. THESE TERMS AND CONDITIONS, THE ORDER FORM(S) AND THE TARIFFS SET FORTH THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS AND COLLATERAL COVENANTS, ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, BY EITHER PARTY (OR ANY OFFICER, DIRECTOR, EMPLOYEE OR REPRESENTATIVE THEREOF) WITH RESPECT TO THE SUBJECT MATTER HEREOF. If any of these Terms and Conditions are determined to be invalid or contrary to any existing or future law, statute or ordinance or any order, rule or regulation, such invalidity shall not impair the operation of or affect those provisions in any other jurisdiction or any other provisions hereof which are valid, and the invalid provisions shall be construed in such manner as shall be as similar in terms to such invalid provisions as may be possible, consistent with applicable law. This service arrangement shall be governed by the laws of the State of Massachusetts without regard to its choice of law provisions, applicable federal laws and any applicable tariffs, rules and regulations.
Authorization to Use CPNI: Customer hereby authorizes Company to use and to disclose and permit access by its affiliates and partners to Customer’s customer proprietary network information (“CPNI”) in order to enhance Company’s ability to offer products and services tailored to Customer’s needs. CPNI is information that relates to the quantity, technical configuration, type, destination, and amount of use of the Services by Customer and that is made available to Company solely as a result of Company’s provision of the Services to Customer. Under federal law, Company has a duty to protect Customer’s CPNI and Customer has the right to prohibit certain uses of its CPNI. Although Customer’s authorization to Company to use, disclose and permit access to Customer’s CPNI will remain in effect until Customer affirmatively revokes such authorization, Customer may withdraw its authorization at any time simply by notifying Company in writing. Denial by Customer of authorization to use, disclose and permit access to Customer’s CPNI will not affect Company’s provision of the Services to Customer.