These Additional Terms and Conditions (the “Additional Terms”) reference and are incorporated into and made a part of the Master Services Agreement between the Parties (the “MSA”). All capitalized terms used, but are not defined, in these Additional Terms have the meanings given to them in the MSA. These Additional Terms are by and between Service Provider and Customer and apply to all Services provided to Customer by Service Provider.

• Customer Obligations. Customer shall:
  • Designate one of its employees or agents to serve as its primary contact with respect to the MSA and to act as its authorized representative with respect to matters pertaining to the MSA (the “Customer Contract Manager”). Customer’s Customer Contract Manager designation shall remain in force unless and until a successor is appointed.
  • Require that the Customer Contract Manager responds promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services.
  • Cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services.
  • Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Provider’s provision of the Services.
• Access. Without limiting Customer’s obligation under Section 1.3, Customer grants to Service Provider and its employees, agents, and contractors, at no cost to Service Provider, access to and use of Customer’s premises (including appropriate space, power, and environmental conditions) to the extent reasonably necessary for the provision of the Services, or the provision, installation, connection, configuration, management, repair, maintenance, replacement, and/or removal of any Equipment.
• Equipment.
  • Service Provider Equipment. Service Provider may provide Equipment owned by Service Provider or Service Provider’s vendors to enable Customer’s access to the Services (the “Service Provider Equipment”) in Service Provider’s sole discretion. If Service Provider provides any of its equipment, systems, or facilities to Customer, Customer shall pay Service Provider a mutually agreeable fee for the use of the equipment, systems, or facilities. The Parties agree that all Service Provider Equipment is and shall remain the exclusive property of Service Provider or its vendors regardless of where installed within Customer’s locations and shall not be considered a fixture or an addition to the land or facility. Customer shall not rearrange, move, modify, repair, or relocate any Service Provider Equipment, or allow or cause any Service Provider Equipment to be rearranged, moved, modified, repaired, or relocated, without Service Provider’s prior written consent. Customer shall not use the Service Provider Equipment for any purpose other than the purposes authorized by the MSA or the Incorporated Agreements. At any time, Service Provider may remove or change any Service Provider Equipment in its sole discretion in connection with providing the Services. If the Services are suspended pursuant to Section 3.9 or 6.3 of the MSA, then Customer shall pay Service Provider the cost to reconnect any Service Provider Equipment before Service Provider is obligated to reconnect the Service Provider Equipment or reactivate the Services. Customer shall not create or allow any liens or other encumbrances to be placed on any Service Provider Equipment, and, if a lien or other encumbrance is ever created or allowed by Customer, Customer shall promptly take action to remove or extinguish the lien or other encumbrance. Customer shall use the Service Provider Equipment only in connection with the Services and for no other purpose. Customer shall maintain a secure location for all Service Provider Equipment and shall be fully liable for any and all costs and charges associated with damage to or loss of Service Provider Equipment, including, but not limited to, replacements costs. For purposes of the MSA and the Incorporated Agreements, the term “Equipment” means any equipment, systems, and facilities used for the purpose of accessing or using the Services.
  • Customer Equipment. Except for any Service Provider Equipment provided by Service Provider under Section 3.1, Customer shall provide its own Equipment to access or use the Services, including, but not limited to, any Wiring (defined in Section 5.3 of the Internet and Voice Services Addendum) on the Customer’s side of the cable modem, route and/or coaxial input connection, whether purchased from Service Provider, Service Provider’s vendors, or a third party, or provided by a third party for Customer’s use (the “Customer Equipment”). Except to the extent included in any Managed Services under the Managed Services Addendum, Customer alone shall be responsible for providing maintenance, repair, operation, and replacement of all Customer Equipment. All Customer Equipment that Customer uses in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance, or repairs attempted or performed by Service Provider’s employees or authorized contractors when the difficulty or trouble report results from Customer Equipment. Service Provider shall not be responsible to Customer if changes to the Services or in any of the facilities, operations, or procedures of Service Provider utilized in the provision of the Services render any Customer Equipment obsolete or require modification or alteration of the Equipment or otherwise affect its use or performance.
• Support and Network Operation Center.
  • Service Requests; Incident Management. If Customer believes that a Services-impacting condition has occurred, Customer shall initiate a trouble ticket by contacting Service Provider’s Service Desk (“Service Desk”). Service Provider may also learn of Services-impacting conditions from Service Provider’s support personnel or through Service Provider’s monitoring systems. Once the Service Desk verifies the Services-impacting condition or report, Service Provider shall open a trouble ticket. Once a trouble ticket has been opened, the Service Desk shall notify Customer of the situation and initiate diagnostic testing and trouble isolation activities against the Services to determine the nature of the Services-impacting condition. If the Services-impacting condition is within the scope of the Services, the Service Desk will undertake management and resolution of the trouble ticket. Service Provider shall provide an initial response to an open trouble ticket as soon as practicable after opening the trouble ticket and shall resolve the trouble ticket based on the ticket’s priority level (once priority can be determined) within the service levels set forth in Service Provider’s Service Level Agreement, which Service Provider shall deliver to Customer for the applicable Services, if a Service Level Agreement applies to the Services (each a “Service Level Agreement”), or the applicable Addendum.
  • Coverage Time. Service Provider and its Service Desk shall be available during normal business hours of 8:30 a.m. – 5:00 p.m. (local time) Monday through Friday, excluding holidays. Service Provider will provide on-call support after-hours for Priority Level 1 and 2 incidents and preplanned patch updates and scheduled downtimes.
  • Resolution Time Measurement; Urgent Escalation Process. Service Provider shall measure the resolution time using the difference between the time stamp of a new trouble ticket request submitted to the Service Desk and the time for a Service Provider technician to resolve the trouble ticket request as indicated in Service Provider’s ticketing system. If Customer submits a trouble ticket request for a Services-impacting condition that is a Priority Level 1 incident and Customer has not received a resolution in the times stated in the Resolution Time Objectives table, then Customer may escalate the trouble ticket request as provided in the following table:

• Customer or Third-Party Condition. If, after responding to a Service Call, Service Provider determines, in its sole discretion, that the source of the need for maintenance or repair or the problem with the Services was caused, in whole or in part, by Customer, Customer Equipment, or Customer’s employees, agents, representatives, or contractors, Customer shall compensate Service Provider for time, labor, and materials expended in responding to the Service Call and performing the services to repair, maintain, or solve the problem with the Services at the Service Provider’s then-current rates. The Parties agree that this Section 4.4 shall not apply to the extent that Customer purchases Services from Service Provider to handle Service Calls for issues caused by Customer, Customer or third-party equipment, or Customer’s employees, agents, representatives, or contractors.

• Security.
  • Responsibility for Security. Customer shall be responsible for its own network security and security violation response procedures, except to the extent that the Services include Service Provider’s security services, which shall be governed by the Security Services Addendum to be entered into by the Parties if Customer purchases Service Provider’s security Services.
  • No Guarantee. While a virtual private network (VPN) or managed network service procured from Service Provider may enhance Customer’s ability to prevent unauthorized access to its network and data and aid Customer in detecting potential security breaches and network irregularities, Customer acknowledges and agrees that none of the Services provided by Service Provider guarantees Customer’s network security or will completely prevent security incidents and that Service Provider is not responsible for any unauthorized third party or Customer employee access to Customer’s network or data. Customer further acknowledges and agrees that neither Service Provider nor Service Provider’s vendors will be liable for unauthorized access to or alteration, theft, or destruction of the Customer Equipment or Customer’s premises, data, files, programs, procedures, or information through accidental, fraudulent, or any other method, regardless of whether the alteration, theft, or destruction occurs as a result of Service Provider’s or its vendor’s negligence.
• Other Operations Matters.
  • Customer Delay. If Customer or any of Customer’s employees, agents, representatives, or contractors fails to perform Customer’s obligations under the MSA, these Additional Terms, or any other Incorporated Agreement or causes any delay, the Parties agree that Service Provider may deliver written notice of the date that Service Provider would have been ready to provide the Services absent Customer’s failure or delay and that date shall be the Activation Date for the affected Services. The Parties further agree that the failure or delay by Customer shall not delay the Activation Date or excuse Customer from commencing payment for the Services at the time Service Provider would be ready to provide the Services, regardless of whether Customer is ready to use the Services. Service Provider may begin invoicing Customer for the Services starting on the Activation Date.
  • Maintenance. Service Provider shall provide Customer reasonably practicable notice of any scheduled maintenance respecting the Services. If an emergency occurs, Service Provider may commence and perform maintenance and restoration actions on its network, Customer Equipment, and the Services without advance notice.
• Prohibited Uses of Services.
  • Acceptable Use Policy. Customer acknowledges that it has reviewed and agrees to be bound by the then-current and any future version of Service Provider’s AUP. Customer acknowledges and agrees that Service Provider’s AUP are subject to change without specific, advance, or written notice to Customer, and shall become effective upon any revision and publication to the following URL address: https://infinit.us/legal/acceptable-use-policy/. Customer shall review and maintain familiarity with Service Provider’s AUP. If Customer, any Customer or user of Customer’s network, or Customer’s network resources violates Service Provider’s AUP in Service Provider’s sole discretion, then Customer shall be in default under the MSA and Service Provider may modify, suspend, or terminate the Services pursuant to Section 6.3 of the MSA.
  • Hazardous Uses. Further, Customer shall not, nor cause or permit Customer’s employees, agents, contractors, or end users to, use any of its networks or Customer Equipment in a manner that (a) interferes or impairs service over the Customer Equipment or any other Equipment, (b) impairs the privacy of any communications carried through or by any Equipment or Services, or (c) create hazards to Service Provider or its employees, agents, contractors, or other customers or to the public. In addition to any other remedies available hereunder, Service Provider may, in its reasonable discretion and without liability, suspend the Services if Customer does not comply with the foregoing sentence. Customer shall not resell the Services to any third party.
  • Other Prohibited Uses. Customer shall not do any the following:
    1. Customer shall not resell the Services or any Service Provider Equipment to any third party without prior written consent from Service Provider.
    2. Customer is prohibited from using the Services or any Equipment used to access the Services for autodialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting.
    3. Customer shall not attempt to hack or otherwise intentionally disrupt the Services or make any use of the Services that is inconsistent with their intended purpose.
  • Theft of Service. Customer shall notify Service Provider immediately, in writing or by calling Service Provider’s customer support line, upon Customer’s awareness that the Services or Service Provider Equipment provided to Customer under the MSA have been stolen, fraudulently used, or misappropriated in an unauthorized manner. Customer shall include in the written notice Customer’s account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of the Services or any Service Provider Equipment. If Customer fails to timely notify Service Provider, then Service Provider may charge additional charges to the Customer and terminate the MSA and the Incorporated Agreements or suspend the Services pursuant to Section 6.3 of the MSA. Customer shall remain liable for all charges stemming from the use of the stolen, fraudulently used, or unauthorized use of the Services or any Service Provider Equipment until Service Provider receives notice of the theft, fraudulent use, or unauthorized use.
  • Out-of-Scope Services. The Parties agree that all services or labor performed by Service Provider that are not included in the Services, the standard installation, configuration, and training related to the Services, or the Service Orders shall be considered and referred to as “Out-of-Scope Services.” The Parties agree that Service Provider has no obligation to provide Out-of-Scope Services and may recommend third party resources to Customer outside of Service Provider. If Customer desires Services Provider to perform Out-of-Scope Services, then Customer shall send Service Provider with a written request for the Out-of-Scope Services for Service Provider’s approval. Service Provider may refuse to provide the Out-of-Scope Services, in its sole discretion. If Service Provider agrees to provide the Out-of-Scope Services, then the fees and charges for the Out-of-Scope Services will be subject to negotiation by the Parties, unless fees and changes are set forth in an applicable Addendum. If the Parties agree to the Service Provider performing Out-of-Scope Services without negotiating the fees and changes and the appliable Addendum is silent on the issue, then Service Provider may charge its standard rate for Out-of-Scope Services, which Service Provider may modify from time to time in its sole discretion.
  • Relocation.
    • Notice; Continued Service. If Customer determines that the connection be disconnected and reconnected to a different location for any of the Services (the “Relocated Services”), then Customer shall send Service Provider written notice of its determination that it needs the connection disconnected and reconnected at a different location at least one hundred and twenty (120) calendar days before the relocation (the “Relocation Notice”). Within thirty (30) days after Service Provider’s receipt of the Relocation Notice, the Parties shall meet, confer, and negotiate a Service Order under which Service Provider will provide the Relocated Services to Customer, which shall require: (A) that Customer shall pay any fees assessed by the local telecommunications carrier for circuit relocation to Customer’s serviced location and for any disconnect and installation charges that may be changed by the local carrier or Service Provider; and (B) that Customer engage Service Provider to provide the Relocated Services at a level greater than or equal to the level of Relocated Services provided to customer on the date Service Provider received the Relocation Notice for at least one (1) year after the effective date of the new Service Order (the “Minimum Commitment”). If the Parties agree to enter into a new Service Order for Service Provider’s provision of the Relocated Services, then the current Service Order applicable to the Relocated Services shall be superseded by the new Service Order with respect to the Relocated Services. If the Parties cannot agree to enter into a new Service Order, then Service Provider may elect to continue providing the Services under the current Service Order at the new location by sending Customer a written notice agreeing to continue providing the Services at the new location under the MSA (the “Continued Service Notice”) within fourteen (14) days after the expiration of the thirty- (30-) day meet and confer period above. If Service Provider determines that it will not continue the Services under the current Service Order, or if Service Provider fails to send the Continued Service Notice, then the current Service Order applicable to the Relocated Services shall automatically terminate with respect to the Relocated Services. The Parties agree that any Service Order shall continue and not terminate with respect to any Services that are not Relocated Services.
    • Service Provider Relocation Services. The Parties agree that all labor or services performed by Service Provider to facilitate Customer’s relocation shall be deemed Out-of-Scope Services.
    • Customer Relocation Responsibilities. Except to the extent included in any Managed Services under the Managed Services Addendum, Customer shall arrange and be solely responsible for moving all Customer Equipment necessary for the operation of the Services at the new location to the new location.
  • Intellectual Property.
    • Ownership. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials, including, but not limited to, any Service Provider Equipment (including related firmware or software), software, data, and information provided by Service Provider, any identifiers or passwords used to access the Services or otherwise provided by Service Provider (the “Service Provider Materials”) that are delivered to Customer under the MSA and the Incorporated Agreements or prepared by or on behalf of the Service Provider in the course of performing the Services, including, but not limited to, any items identified as “Deliverables” in the Service Order (collectively, the “Deliverables”), except for any Confidential Information of Customer or Customer materials, shall be and remain the sole and exclusive property of Service Provider or its affiliates or vendors, as applicable.
    • License to Customer. Service Provider hereby grants Customer a limited license to use the Deliverables and all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services during the Term. The Parties agree that the preceding license shall terminate upon the termination of the MSA.
    • Licensed Software.
      1. Personal License. If and to the extent Customer requires the use of Licensed Software to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, non-sublicensable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the applicable Service Term. Customer shall not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Service Provider, including, without limitation, end-user license agreements for the Licensed Software. Service Provider and its vendors shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in the MSA. For purposes of the MSA, “Licensed Software” means computer software or code provided by Service Provider or its vendors under the MSA or otherwise required to use the Services, including, without limitation, associated documentation and all software updates.
      2. Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades to the Licensed Software or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Service Provider; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
      3. Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the Equipment. If Service Provider has agreed to provide updates and changes, Service Provider may perform any updates and changes remotely or on-site, at Service Provider’s sole option. Customer hereby consents to, and shall provide free access for, any updates deemed reasonably necessary by Service Provider.
    • No Transfer. Except for the limited licenses granted in Section 11.2 and 11.3, nothing in the MSA is intended to convey any right or ownership interest to Customer or any other Person in or to the Deliverables or the Intellectual Property Rights in the Deliverables. Customer shall acquire no interest in the Deliverables by virtue of the payments provided under the MSA.
    • No Reverse Engineering or Palming Off. Customer shall not disassemble, decompile, reverse engineer, reproduce, modify, or distribute the Deliverables or Service Provider Materials, in whole or in part, or use them for the benefit of any third party. All rights in the Deliverables not expressly granted to Customer in the MSA are reserved to Service Provider. Customer shall not open, alter, misuse, or tamper with any Service Provider Equipment. Customer shall not remove any markings or labels from any Service Provider Equipment indicating Service Provider’s (or its vendors’) ownership or serial numbers.
    • Return of Materials on Termination. Customer shall return all Deliverables, including, but not limited to, all Service Provider Materials, to Service Provider and destroy all copies within fourteen (14) calendar days after termination of the Services. Customer shall also return (or permit Service Provider to remove) any Service Provider Equipment. Customer shall deliver to Service Provider a written certification that all Deliverables have been returned and all copies destroyed and that no Deliverables remain in the Customer’s possession, whether tangible form, electronic form, or otherwise.
  • Confidentiality.
    • Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 12; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that the third party is not and was not prohibited from disclosing the Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure under the MSA; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
    • Confidentiality Obligations. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the MSA; and (c) not disclose any Confidential Information to any Person, except to the Receiving Party’s Group (defined in Section 12.3) who (x) need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the MSA, (y) are informed by the Receiving Party of the confidential nature of the Confidential Information, and (z) are subject to confidentiality duties or obligations to the Recipient that are no less restrictive than the terms and conditions of this Section 12. The Receiving Party shall be responsible for any breach of this Section 12 caused by any of Receiving Party’s Group and shall direct them to comply with the confidentiality and non-disclosure obligations of the Receiving Party under this Section 12.
    • Required Disclosures. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making a required disclosure, use commercially reasonable efforts to notify Disclosing Party of the requirement on Receiving Party to disclose to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 12 only, “Receiving Party’s Group” shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
    • Return of Confidential Information. Each Party shall return to the other Party its Confidential Information and destroy all copies made of the other Party’s Confidential Information. Each Party shall deliver a written certification that all Confidential Information has been returned and all copies destroyed, and that no Confidential Information remains in the Party’s possession, whether in tangible form, electronic form, or otherwise. If any Confidential Information remains in either Party’s possession, or if any Deliverables remain in Customer’s possession, the Receiving Party or Customer, respectively, shall continue to be bound by the terms and conditions of this Section 12 with respect to any retained Confidential Information or Deliverables.
    • Privacy Policy. In addition to the provisions of this Section 12, the privacy policy below applies to Service Provider’s handling of Customer Confidential Information. In the event of a conflict between the provisions of this Section 12 and any provision of the privacy policy below, the applicable provision of the privacy policy shall prevail in the resolution of the conflict.

A copy of Service Provider’s privacy policy is available at https://infinit.us/legal/privacy-policy/ (or any successor URL).

• Non-Solicitation of Employees. Customer acknowledges and agrees that the relationships of and services provided by employees, consultants, and independent contractors with Service Provider are integral to the operations of Service Provider and the loss or disruption of those relationships would result in irreparable damages to Service Provider. Accordingly, during the Term, and for two (2) years after the termination or expiration of the MSA, Customer shall not, directly or indirectly, in any manner or capacity, either alone or in conjunction with any third party, solicit, entice, divert, take away, hire, or engage, or attempt to solicit, entice, divert, take away, hire, or engage any Person who is an employee, consultant, or independent contract or Service Provider or who has been so employed or contracted at any time during the twenty-hour (24) months prior to the solicitation, enticement, diversion, taking away, hiring, engagement, or attempt (it being conclusively presumed by the Parties, so as to avoid disputes, that any action within the twenty-four (24) month period is in violation of this clause).
• Irreparable Harm. The Receiving Party acknowledges and agrees that any breach of Section 12 will cause irreparable harm and injury to the Disclosing Party, and Customer acknowledges and agrees that any breach of Sections 11 or 13 will cause irreparable harm and injury to Service Provider, for which money damages would be an inadequate remedy. Therefore, in addition to remedies available at law, Service Provider, with respect to Sections 11 and 13, and the Disclosing Party, with respect to Section 12, are entitled to seek specific performance, injunctive relief, and other equitable relief as a remedy for any breach or threatened breach of Sections 11, 12, and 13, respectively, without the need to post security or bond or to show monetary damages in connection with any claim for equitable relief under the MSA. Customer, regarding any breach or threatened breach of Sections 11 and 13, and the Receiving Party, regarding breach or threatened breach of Section 12, waive any claim or defense that Disclosing Party or Service Provider, as applicable, has an adequate remedy at law in any proceeding.
• Customer Proprietary Network Information.
  • Use of Customer Proprietary Network Information by Service Provider. Service Provider is committed to protecting the confidentiality of Customer’s information related to the Services and has a duty to do so under federal law. Federal law gives Customer a right to protection of all information pertaining to the Services received from Services Provider (e.g., how many Services are used, the types of Services used, technical characteristics, and related billing information). From time to time, Service Provider may have the opportunity to offer new, additional, or alternative Services that will better meet Customer’s needs by using information about the Services already purchased from Service Provider. Service Provider’s use of Service-related information for this purpose may enhance Service Provider’s ability to make Customer aware of new, additional, or alternative Services that are tailored to Customer’s needs. By signing the MSA, Customer expressly consents to allow Service Provider to use Customer Proprietary Network Information (“CPNI”) as described in this Section.
  • Access to and Use of CPNI by Third Parties. If Customer subscribed to Service Provider’s Services through the use of an independent contractor or a third party (the “Intermediary Party”), Service Provider may share Customer’s CPNI with the Intermediary Party for administrative, customer service, and billing purposes. For purposes of illustration only, the compensation of the Intermediary Party may be tied to the amount Customer is billing with Service Provider. In these and similar circumstances, Service Provider may share CPNI with the Intermediary Party. By signing the MSA, Customer expressly consents to allow Service Provider to share CPNI with the Intermediary Party and to allow the Intermediary Party to use CPNI as described in this Section.
• Limited Warranty and Exclusive Remedy.
  • Warranty. Service Provider warrants that it shall perform the Services:
    1. In accordance with the terms and subject to the conditions set forth in the MSA and the Incorporated Agreements.
    2. Using personnel of sufficient skill, experience, and qualifications.
    3. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
  • Exclusive Remedy. Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
    16. Cure and Termination Based on Materiality of Breach. Service Provider shall have thirty (30) days to cure a breach of warranty under Section 16.1 after Customer’s written notice of the breach. If Service Provider fails to cure the breach within the thirty (30) day period, and the breach is not a Material Breach of Warranty, then Customer may, at its option, terminate the particular Services regarding which Service Provider breached its warranty in Section 16.1 by delivering written notice of termination to Service Provider specifying the terminated Services. If Customer timely elects to terminate a particular Service after Service Provider’s failure to cure a non-Material Breach of Warranty, the MSA continues, and the Parties remain obligated under the MSA to perform with respect to the Services not terminated. If Service Provider fails to cure the breach within the thirty (30) day period and the breach is a Material Breach of Warranty, then Customer may, at its option, terminate the MSA by delivering written notice of termination to Service Provider in accordance with Section 6.1(a) of the MSA. If Customer fails to send the written notice of termination under this Section 16.2(a) within ten (10) days after the expiration of the thirty- (30-) calendar day cure period above, then Customer waives its right to terminate under this Section for that breach of warranty and the Parties shall remain obligated under the MSA. For purposes of the MSA, a “Material Breach of Warranty” means a breach of warranty in Section 16.1 with respect to Services the Service Fees for which are at least one-eighth of the value of the monthly Invoice.
    17. Refund for Material Breach. If the MSA is terminated pursuant to Section 16.2(a) above, Service Provider shall, within thirty (30) calendar days after the effective date of termination notice, refund to Customer any fees paid by the Customer as of the date of termination for the Services, less a deduction equal to the fees for receipt or use of the Services up to and including the date of termination on a pro-rated basis.
    18. Refund for Non-Material Breach. If a particular Service is terminated pursuant to Section 16.2(a) above, Service Provider shall, within thirty (30) days after the effective date of the termination notice, refund to Customer any fees paid by the Customer as of the date of termination for the Services terminated, less a deduction equal to the fees for receipt or use of the Services up to and including the date of termination on a pro-rated basis.
    19. Notice Required. The foregoing remedy shall not be available unless Customer provides written notice of the breach of warranty within thirty (30) calendar days after acceptance of Services by Customer.
  • Disclaimer of Warranties. SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 16.1. EXCEPT FOR THE WARRANTIES IN SECTION 16.1, SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, TITLE, AND NON-INFRINGEMENT.
  • Customer Assumption of Risk. Without limiting the disclaimers in Section 16.3, Customer assumes all risk of security to its LAN, Customer’s other networks or systems, and responsibility for implementing any firewalls or security mechanisms between the network access router and Customer’s LAN and Customer’s other networks or systems. Service Provider and any third party which interconnects with or supplies information or data to Service Provider in connection with the Services do not warrant that the Services will be uninterrupted or error free and gives no warranty as to the accuracy or quality of information obtained or data transmitted through use of the Services, except for the express warranties made in these Additional Terms and Conditions.
  • Condition of Equipment. Except for the warranties in Section 16.1, Customer acknowledges and agrees that all Services, all information provided with the Services (including, but not limited to, all Service Provider Materials and Deliverables), and any Service Provider Equipment are provided on an “AS IS” and “AS AVAILABLE” basis. The Parties agree that Service Provider shall not be liable for any loss or damage sustained by Customer, its interconnecting carriers, or its customers or end users by reason of: (a) any failure in or breakdown of Service Provider’s, Customer’s, Customer’s underlying carriers’, or third parties’ communication facilities associated with providing the Services or Equipment; or (b) any interruption or degradation of the Services whatsoever.
  • No Liability to End Users. Customer acknowledges and agrees that Service Provider shall have no liability to Customer’s employees, agents, contractors, users, or any other third parties accessing the Services through Customer.
• Indemnification.
  • Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Service Provider, its directors, officers, employees, representatives, agents, contractors, interconnect service providers and suppliers against all claims, liabilities, loss, cost, or damage including Service Provider’s attorneys’ fees and costs of litigation (collectively, the “Losses”) that result from any claim or actions that are asserted by third parties (including but not limited to Customer’s customers) that arise in any way out of (a) the MSA, including, but not limited to, any Incorporated Agreement, (b) the Services, (c) Customer’s use or misuse of the Services, (d) noncompliance with the Service Provider’s AUP or violation of applicable law, I any defect, dangerous condition, or malfunction of Customer’s premises or Customer Equipment, or (f) any intentional misconduct or gross negligence by Customer or its employees, authorized representatives, authorized agents, and authorized contracts..
  • Indemnification by Service Provider. Service Provider shall indemnify, defend, and hold harmless Customer its directors, officers, employees, representatives, agents, contractors, and suppliers against all Losses the result from any intentional misconduct or gross negligence by Service Provider or its employees, authorized representatives, authorized agents, and authorized contracts.
  • Indemnification Procedure. Promptly after receiving any written claim or notice of any action giving rise to a claim for indemnification, the Party seeking indemnification shall provide the indemnifying Party with written notice of the claim or action giving rise to the indemnifiable Losses (each, a “Claim”). The indemnified Party shall provide the indemnifying Party with reasonable cooperation and assistance in the defense or settlement of any Claim and control over the defense and settlement of any Claim. The indemnified Party may participate in the defense of the Claim and employ counsel at its own expense to assist in the defense of the Claim. The indemnifying Party shall not agree to any settlement which results in an admission of liability by the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. If the indemnifying Party fails to assume the defense of any Claim, or does not diligently pursue the defense, the indemnified Party may retain counsel and assume the defense of the Claim at the cost of the indemnifying Party, and in that case, the indemnifying Party shall reimburse the indemnified Party for all of its reasonable attorneys’ fees, costs and damages incurred in settling or defending the Claims within thirty (30) days of each of the indemnified Party written requests for reimbursement.
• Limitation of Liability.
  • IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, including but not limited to lost revenues or profits or damages for the loss of data, information, delay, non-delivery or mis-delivery, or service interruption of any kind, however caused, arising out of or in connection with the use or provision of the Services, or from suspensions of service arising from or related to necessary maintenance of the network or default by Customer, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER THE DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  • IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE MSA, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO ALL SERVICE ORDERS IN THE TWELVE- (12-) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
• Compliance with Law.
  • In General. Each Party shall comply with all applicable laws, rules, and regulations relating to its business operations. Service Provider may cooperate with law enforcement organizations that have lawfully requested pursuant to a valid subpoena or court order information regarding Customer or any end user of Customer and provide those law enforcement organizations with any information requested, including, but not limited to, names, email addresses, mailing or contact address, IP addresses, telephone numbers, call detail records, or call content. Customer agrees to cooperate with Service Provider in investigating suspected violations.
  • Export. Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the MSA may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Service Provider, Customer also agrees to sign written assurances and other export-related documents as may be required for Service Provider to comply with U.S. export regulations.
• Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the MSA (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below for Service Provider or on the signature page for Customer (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or by email with confirmation of transmission. Except as otherwise provided in the MSA, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.

• Collection Fees. If Service Provider must pursue any collection action for any unpaid balances, Service Provider shall be entitled to all reasonable collection fees and costs, including reasonable attorney’s fees, plus Service Provider will remain entitled to pursue any remedies available in law or equity.
• Severability. If any term or provision of the MSA is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the MSA or invalidate or render unenforceable such term or provision in any other jurisdiction.
• Amendments. No amendment to or modification of or rescission, termination, or discharge of the MSA is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of the MSA, and signed by each Party.
• Waiver. No waiver by any Party of any of the provisions of the MSA shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the MSA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the MSA shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under the MSA without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 25 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under the MSA. Service Provider may assign any of its rights or delegate or subcontract any of its obligations to any affiliate or to any Person acquiring all or substantially all of Service Provider’s assets without Customer’s consent.
• Successors and Assigns. The MSA is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
• Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results of the Services. The Service Provider shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in the MSA shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in the MSA shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
• No Third-Party Beneficiaries. Except for the indemnification obligations under Section 17, the MSA and all Incorporated Agreements benefits solely the Parties and their respective permitted successors and assigns and nothing in the MSA, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the MSA.
• Alternative Dispute Resolution.
  • Scope of Disputes. In the event of any dispute, controversy, or claim arising out of or related to the MSA or any breach or termination of the MSA and the Services provided under the MSA, excluding (i) nonpayment of the fees or charges in Section 3 of the MSA, (ii) matters that can be brought in a small claims court, (iii) breach of Section 11 concerning intellectual property, (iv) breach of confidentiality under Section 12, (v) breach of non-solicitation under Section 13, or (vi) equitable remedies sought pursuant to Section 14, but including any other alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute (the “Dispute”), the Parties shall follow the alternative dispute resolution process and remedies provided in this Section.
  • Negotiation. The Parties shall, within five (5) business days following receipt of a written notice of a Dispute, engage in face-to-face negotiations in an attempt to resolve the Dispute.
  • Mediation. If the Parties fail to resolve the Dispute by negotiation pursuant to Section 29.2, the Parties shall choose a mutually agreeable third-party neutral to mediate the Dispute between the Parties within ninety (90) calendar days following the expiration of the negotiation period in Section 29.2. Mediation shall be non-binding and confidential. The Parties shall refrain from court action and/or arbitration proceedings with respect to any Dispute during the mediation process insofar as they can do so without prejudicing their legal rights. The Parties shall participate in good faith in accordance with the recommendations of the mediator and shall follow the procedures for mediation as suggested by the mediator. All expenses of mediation, except for expenses of the individual Parties, shall be shared equally by the Parties. Each Party shall be represented in the mediation by a person with authority to settle the Dispute.
  • Arbitration. If the Parties are unable to resolve the Dispute within the ninety- (90-) calendar day period set forth in Section 29.3 for mediation, each Party agrees to submit all Disputes to the American Arbitration Association (“AAA”) for binding arbitration. The Parties shall hold the arbitration in Cleveland, Ohio, USA before a single arbitrator in accordance with the AAA Commercial Rules of dispute resolution, which are available here: https://org/rules. Any arbitral award determination shall be final and binding upon the Parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. THE ARBITRATION SHALL PROCEED ONLY ON AN INDIVIDUAL BASIS. THE PARTIES WAIVE ALL RIGHTS TO HAVE THEIR DISPUTES HEARD OR DECIDED BY A JURY OR IN A COURT TRIAL AND THE RIGHT TO PURSUE ANY CLASS OR COLLECTIVE CLAIMS AGAINST EACH OTHER IN COURT, ARBITRATION, OR ANY OTHER PROCEEDING. Each Party shall only submit their individual claims against the other and will not seek to represent the interest of any other Person. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other Party to an arbitration between the Parties.
• Choice of Law. The MSA, and all matters arising out of or relating to the MSA, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Ohio, United States of America, without giving effect to the conflict of laws provisions of the State of Ohio or any other state to the extent those principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio.
• Choice of Forum. Subject to Section 29, each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the MSA, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Northern District of Ohio or, if that court does not have subject matter jurisdiction, the courts of the State of Ohio sitting in Cleveland, Ohio, and any appellate court from any of the foregoing courts (collectively, the “Courts”). Subject to Section 29, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts and agrees to bring any action, litigation, or proceeding only in the Courts and in the priority set forth in this Section. Each Party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
• Counterparts. The MSA may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 20, a signed copy of the MSA delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the MSA.
• Force Majeure.
  • Force Majeure Event. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached the MSA, for any failure or delay in fulfilling or performing any term of the MSA (except for any obligations of the Customer to make payments to Service Provider for Services rendered) when and to the extent the failure or delay is caused by or results from acts beyond the impacted party’s (the “Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of the MSA; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
  • Notice of Force Majeure Event. The Impacted Party shall give notice within seven (7) calendar days of the Force Majeure Event to the other Party, stating the period the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of ninety (90) consecutive days following written notice given by it under this Section 33.2, the other Party may thereafter terminate the MSA upon thirty (30) days’ written notice.