MASTER SERVICE AGREEMENT / TERMS & CONDITIONS
This Agreement states the terms and conditions by which AxiaTP will deliver and Customer will receive any or all of the Services and/or Products provided by AxiaTP. AxiaTP offers a variety of different Services and Products that Customer may order from time to time. Orders for Services and/or Products are placed and documented by the use of a Service Order form each time Customer orders one or more Services and/or Products. Each Service Order submitted, accepted and executed by both parties, including any addendums and exhibits thereto, are hereby incorporated by reference herein and shall be governed by the terms and conditions of this Agreement. In the event of any conflict between this Agreement and the terms of any Service Order, precedence will be given to the terms of this Agreement. Unless otherwise agreed in writing by AxiaTP, no terms and conditions endorsed upon, delivered with or contained in Customer’s purchase orders, or in any other similar document, will amend, or vary the provisions of this Agreement.
DEFINITIONS. The definitions identified in the attached Schedule 1 will apply when used in this Agreement, all schedules attached to this Agreement, and all Service Orders. If terms are not expressly defined in this Agreement, they shall have the meanings commonly attributed to them in the telecommunications industry.
TERM. This Agreement shall commence upon its execution by both parties and continue in effect throughout the duration of the Service Term(s) of any and all Service Orders and until the expiration or other termination of the final existing Service Order entered into under this Agreement. Each Service Order shall state the Service Term for that Service Order. The Service Term of each Service Order shall apply to each Service included in the given Service Order. The Service Term of each Service Order will commence upon complete installation and activation of all of the Services and/or Products provided pursuant to each Service Order. A single Service Order may include one Service or multiple Services ordered by Customer. In those instances in which a Service Order includes one Service or Product, the date on which the Service and/or Product is installed or activated will be deemed the “Service Commencement Date” for that particular Service Order, and will begin the Service Term for such Service Order. In those instances in which a Service Order includes multiple Services and/or Products, all of the Services and/or Products included in the Service Order are not always installed and activated on the same date. Rather, certain Services or Products may be installed and activated on one date, while other Services and Products contained in the same Service Order are installed and activated on a later date(s). When multiple Services and/or Products are included in a single Service Order, the Service Term of the entire Service Order (and of each Service included in the given Service Order) will commence as of the date on which the last or final Service and/or Product is installed or activated. Said date will be the “Service Commencement Date” for that particular Service Order and will begin the Service Term for such Service Order.
The Service Term of a Service Order, whether the Service Order includes one or multiple Services and/or Products, shall expire at the end of the Service Term stated in the Service Order. If a Service Order does not specify a term of service, the Service Term for such Service Order shall be two (2) years from the Service Commencement Date for that Service Order. The Service Term of a Service Order will automatically renew for the same duration of the Service Term stated in the then existing Service Order, unless terminated by either Customer or AxiaTP upon written notice given at least 30, but not more than 180, days prior to expiration and/or renewal of the Service Term of the given Service Order. The written notice required by this paragraph must be sent to [email protected] in order to be valid.
CHARGES AND BILLING. Within fifteen (15) days of the date on which Customer executes each Service Order, Customer shall pay AxiaTP all of the non-recurring charges designated on such Service Order as “Non-recurring Charges” (“NRC”).
Customer further agrees to pay AxiaTP all charges associated with the Services and/or Products as stated in each Service Order, including without limitation the “Monthly Recurring Charges” (“MRC”) for each Service or Product. In the event that some, but not all, Products and/or Services associated with a Service Order are installed or activated, Customer agrees to pay AxiaTP the MRCs and Additional Charges associated with those Services that are installed or activated even though the Service Commencement Date for the entire Service Order (as defined above) has not commenced. The MRC for the initial month of each Service shall be prorated from the start of that Service through the end of that calendar month.
In addition to MRCs, Customer shall pay to AxiaTP all charges applicable to comparable services obtained from the incumbent local exchange carrier, all usage charges, including without limitation charges for the use of AxiaTP Equipment, maintenance and repair charges, and all federal, state or local use, excise, sales, privilege or other Taxes (“Additional Charges”), as well as all reasonable costs and expenses, including but not limited to all reasonable attorney’s fees, expenses, and/or court costs incurred by AxiaTP while attempting to collect payment of any amount owed under this Agreement or enforce any of the terms and conditions of this Agreement (“Fees and Costs”). All Taxes, whether charged to or against AxiaTP, shall be payable by Customer unless Customer provides proof of its specific tax exempt status by execution and submission of the proper Tax Exempt Certification or like form, for said Taxes. AxiaTP shall not be held liable for payment or processing of any retroactive tax exemption.
Customer may incur charges from third-party service providers that are separate and apart from the amounts charged by AxiaTP. These may include, without limitation, charges resulting from accessing on-line services, calls to parties who charge for their telephone based services, and purchasing or subscribing to other offerings via the internet. Customer agrees that all such charges are Customer’s sole responsibility.
PAYMENT OF INVOICES. Except as otherwise agreed, AxiaTP shall invoice Customer on a monthly basis for all MRCs and Additional Charges. Payment of all MRCs, Additional Charges, and Fees and Costs are due and must be RECEIVED by AxiaTP at the address shown on the invoice not later than 15 calendar days after the date of the invoice (“Due Date”). Invoices shall be delivered via email (regular mail only if customer requests), but the date of such delivery shall NOT affect the Invoice Date from which the Due Date is derived. Any amounts not paid on or before the Due Date will be subject to a late fee of 1.50% or $25 per month for each month any amount remains unpaid (“Late Charge”), whichever is greater. Unless different treatment is required by applicable regulations, adjustments for billing errors will be limited to 90 days from the date of the invoice.
THE FOREGOING SHALL GOVERN CUSTOMER PURCHASES OF PRODUCTS AND/OR SERVICE(S) FROM AXIATP, EITHER THROUGH AXIATP.COM WEBSITE, API, PORTAL, OR BY CUSTOMER SUBMISSION OF AN ORDER VIA PHONE, FACSIMILE, EDI, EMAIL, MAIL, OR OTHER MEANS.
PAYMENT BY CREDIT CARD. Upon Customer’s written request and AxiaTP’s acceptance of such request, AxiaTP will accept certain credit card payments for charges incurred under this Agreement. By providing AxiaTP with a credit card number, Customer authorizes AxiaTP to charge the card for all charges incurred under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides AxiaTP sixty (60) days prior written notice that AxiaTP is to stop charging the credit card. If AxiaTP is unable to charge Customer’s credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by AxiaTP. AxiaTP may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
CREDIT APPROVAL. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide AxiaTP with credit information requested by AxiaTP. Customer authorizes AxiaTP to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to AxiaTP will be true and correct. AxiaTP, at its sole discretion, may deny the Services based on unsatisfactory credit history.
DEFAULT. An event of default (“Default”) shall occur (a) if Customer fails to pay any amount due and payable under this Agreement or any Service Order by its Due Date, and such failure remains uncorrected after written notification from AxiaTP for a period of fifteen (15) days; (b) if Customer or AxiaTP breach a material term, other than making payment, contained in this Agreement, and such failure remains uncorrected thirty (30) days after receipt of written notification from the other party of said breach, (c) upon the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings, by or against Customer under any section or chapter of the United States Bankruptcy Code, and such proceedings have not been dismissed or discharged within thirty (30) days of documented proceeding initiation, (d) upon the making of an assignment for the benefit of creditors, adjudication of insolvency, or institution of any reorganization arrangement or other readjustment of debt plan, of or by Customer, and such proceedings do not involve the United States Bankruptcy Code; or (e) upon the appointment of a receiver for all or substantially all of Customer’s assets.
REMEDIES UPON DEFAULT
(1) Upon Default by Customer, AxiaTP may (a) subject to applicable government rules and regulations, suspend or disconnect some or all of the Services, or (b) terminate this Agreement and any Service Orders without liability or further obligation upon written notification of termination to Customer. The suspension of Services pursuant to this paragraph shall not relieve Customer of its obligation to pay Charges during the time period in which Services are suspended.
(2) AxiaTP has established the prices it charges Customer under this Agreement based, in part, on Customer’s promise to utilize and pay for the Services through the expiration of the entire Service Term of each Service Order. If AxiaTP terminates this Agreement or any Service Order due to Customer’s Default, or if Customer Terminates this Agreement or any Service Order at any time prior to the expiration of any Service Term of any Service Order for convenience, then Customer shall pay an Early Termination Fee to AxiaTP. The amount of the Early Termination Fee is calculated pursuant to the definition of “Early Termination Fee” set forth in Schedule 1. Customer agrees that the amount of the Early Termination Fee is a genuine estimate of AxiaTP’s actual damages resulting from an early termination of the Services, and therefore for the sake of efficiency, economy and convenience, the Early Termination Fee set forth herein constitutes liquidated damages, is reasonable, and is not intended as a penalty or to be punitive in nature.
(3) Upon Default by AxiaTP, Customer may terminate any Service Order affected by the Default. A termination by customer following a Default by AxiaTP shall not result in Customer’s liability for an Early Termination Fee. Termination by either party of a Service Order does not waive any other rights or remedies that it may have under this Agreement or any other Service Order.
(4) With respect to any Default that can be cured by the payment of money, at least 15 calendar days (or such greater time period as may be required by applicable law from time to time) prior to disconnecting any Service, AxiaTP will issue a DISCONNECT NOTICE to Customer via email and Certified mail demanding full payment be RECEIVED by AxiaTP within 7 calendar days or Services will be disconnected on or shortly after 11:59 PM on the last day of the disconnect warning period.
(5) AxiaTP may suspend and/or reroute Services without notice: (i) if necessary to protect AxiaTP’s Network from imminent harm and/or to protect the technical integrity of AxiaTP’s Network; (ii) if required by legal or regulatory authority or (iii) upon Customer’s fraudulent or illegal use of the Services.
SERVICE OUTAGES/TERMINATION OF AFFECTED SERVICE. Any Service Outage must be reported in writing to AxiaTP by Customer opening a Trouble Ticket by way of Case Central within 24 hours of the Service Outage (“Outage Notice”). Customers may open Trouble Tickets in the Support Ticketing System 24x7x365 without the assistance of AxiaTP. Failure to provide AxiaTP with an Outage Notice will result in the Customer waiving all rights associated with termination of the Affected Service. If Customer provides AxiaTP with the Outage Notice and the Service Outage for an Affected Service lasts more than 60 minutes per month and occurs over a period of three consecutive months, the Service Outage for the Affected Service will be deemed “Chronic.”
If a Service Outage for an Affected Service is Chronic, as defined herein, Customer may terminate only the Affected Service without paying an Early Termination Fee for that Service. Customer must also provide AxiaTP with written notice of its intent to terminate the Affected Service (“Notice of Termination of Affected Service”) no later than thirty days following the most recent Service Outage for the Affected Service. Said written notice must be sent to [email protected] in order to be valid. Customer shall be responsible for charges accrued prior to the termination of the Affected Service, less any applicable Service Outage credits.
If the forgoing conditions are not met and Customer terminates an Affected Service, Customer shall remain responsible for paying the Early Termination Fee associated with said Affected Service. Customer MAY NOT terminate any Services if a Service Outage arose out of the Customer’s negligence or wrongful misappropriation of their network resources, the network, or management of the network.
If Customer is receiving multiple Services from AxiaTP, a Service Outage for a particular Affected Service, regardless of the duration or frequency of the Service Outage, shall not be considered a breach by AxiaTP of a material term of this Agreement. If Customer chooses to terminate an Affected Service that is deemed Chronic, Customer will remain liable for all charges relating to all other Services that client receives from AxiaTP, including any Early Termination Fee owed with regard to any other Service.
PAYMENT THROUGH DISCONNECTION DATE. Customer is responsible for paying the MRCs through the date that the Services are disconnected by AxiaTP. AxiaTP has forty-five days to complete the disconnection of Services.
SERVICE SUSPENSION FOR MAINTENANCE. AxiaTP may from time to time suspend service for routine maintenance or rearrangement for a short period of time. Whenever possible AxiaTP will give Customer advance notification, and, to the best of their ability will perform such maintenance during “off hours” (12:00 AM to 6:00 AM local time).
RECONNECTION FEE. If Customer’s Services are terminated due to breach or violation by Customer of any of the terms and conditions contained in this Agreement or any policy adopted by AxiaTP relating to the Services, in the event AxiaTP subsequently agrees to reconnect Services, the Customer agrees to pay a $200.00 reconnection fee.
RETURN OF AXIATP EQUIPMENT. Upon termination of this Agreement, Customer shall permit AxiaTP access to retrieve from any Service Location any and all AxiaTP Equipment. If Customer fails to permit access, or if the retrieved AxiaTP equipment has been damaged and/or destroyed other than by AxiaTP, normal wear and tear excepted, AxiaTP may invoice and Customer shall immediately pay for the full replacement or repair costs of said AxiaTP Equipment.
ACCESS. Customer, at no cost to AxiaTP, shall secure and maintain all necessary rights of access to the location(s) where AxiaTP provides the Services (“Service Location(s)”). In addition, Customer shall provide an adequate environmentally and temperature controlled space and such electricity as may be required for installation, operation, and maintenance of the AxiaTP Equipment used to provide the Services within the Service Location(s). AxiaTP and its employees and authorized contractors will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice from AxiaTP, Customer shall provide all required access to AxiaTP and its authorized personnel.
CUSTOMER PREPARATION. Customer, the Service Location(s), and any Customer-Provided Equipment shall be ready and prepared to use the Services by the Firm Order of Completion Date (“FOC Date”) for the specified service, which FOC date AxiaTP Project Management will provide to Customer. If Customer will not be ready or prepared to use the Services on the FOC Date, for any reason, including but not limited to, power or interconnecting facilities at the Customer site being unavailable, the unavailability of services or other products provided by a party other than AxiaTP, Customer-provided Equipment not being in place, or Customer not providing necessary access to the Service Location(s), Customer will provide AxiaTP with written notice to [email protected]com at least five (5) business days prior to the FOC Date. Upon timely receipt of such notice from Customer, AxiaTP will attempt to postpone the FOC date. Customer will be liable for payment of any and all fees and expenses arising from the postponement of the FOC Date, including without limitation any fees or expenses charged by a Local Exchange Carrier. If AxiaTP is unable to change or delay the Order with the LEC or if Customer fails to provide the required notice and is not ready to accept Service on the FOC Date, Customer will be liable for payment of all NRCs, any third-party termination charges, and the MRC for the Service(s). AxiaTP reserves the right to cancel the Service(s) at any time prior to the FOC Date.
CUSTOMER-PROVIDED EQUIPMENT. AxiaTP shall have no obligation to install, operate, or maintain any facilities, equipment or devices supplied by Customer for use in connection with the Services (“Customer-Provided Equipment”). Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the cable modem, route, or other input connection. All Customer-Provided Equipment and wiring 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 AxiaTP’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment.
RESPONSIBILITY FOR CUSTOMER NETWORK
(a) Customer is responsible for the design, management, performance and on-going service and support of their corporate and/or remote office local area networks, including the physical station-level cabling, network IP subnetting, configuration of VLANs, or establishing VPNs supporting the desktop computers, corporate applications, and peripheral IP equipment.
(b) AxiaTP does not warranty or guarantee connectivity, performance, or quality of service for IP Telephony and VoIP applications over non AxiaTP provided or approved network and/or PBX services.
(c) Customer understands that it is Customer’s responsibility to administer and maintain quality of service levels within its LAN/WAN/VPN infrastructure.
(d) Customer acknowledges its local area network and/or wide area network user elements may need to be upgraded, redesigned, or reconfigured at Customer’s sole expense in order to support converged IP Telephony and VoIP solutions.
(e) Customer understands that any future LAN modifications or data applications may negatively impact quality of service and LAN-connected applications and in those instances, Customer may require troubleshooting, repair and possibly a network assessment at Customer’s expense.
(f) Customer is responsible for the installation and deployment of the VPN clients for IP hard and soft telephones.
VOIP OVER THE PUBLIC INTERNET. Customers who choose to use the public Internet as a means to carry AxiaTP voice traffic, do so at their own risk and further, understand and acknowledge the following caveats:
(1) The Services, when transmitted over the public internet, may experience delays, disruptions, outages, or other such annoyances. Customer understands and acknowledges that, as the Service is transmitted over the public Internet and public switched telephone network, there may be any number of outages, service disruptions, or issues which may result in packet loss and decreased voice quality over which AxiaTP has no control. Customer also understands and acknowledges that calls are not encrypted and are therefore subject to the possibility of eavesdropping over the public Internet. AxiaTP will not be liable for any disruption, delays, outages, eavesdropping, or other unforeseen calamities with respect to any Services utilizing the public Internet.
(2) Customer understands and acknowledges that by choosing to use the public Internet for communication, voice calls are subject to the limitations of Internet communication. These limitations include, but are not limited to breaks in connectivity, slow speeds, and other overall annoyances which may negatively affect your audio quality on the AxiaTP service.
(3) As noted under the sections above, AxiaTP does not control the Internet. Customer connections from one end of a conversation to the other are affected by many things, including local Customer connectivity, the many interconnections in between, and the recipient’s local connectivity. Problems at any point could negatively affect the quality of the Customer call experience. Customer acknowledges and understands that AxiaTP is not responsible for any portion of the Internet over which AxiaTP has no direct control and which may affect the quality of Customer calls.
LIMITATIONS OF SERVICES
OUTAGES DUE TO ELECTRICAL, INTERNET OR OTHER GENERAL FAILURES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER, ACCESS TO THE INTERNET OR OTHER GENERAL FAILURES ASSOCIATED WITH THE VOIP NETWORK. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUT-DIALING SYSTEMS INCLUDING SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, SATELLITE TELEVISION SYSTEMS AND SOME FACSIMILE SYSTEMS. BY CONSENTING TO THESE TERMS AND CONDITIONS, CUSTOMER WAIVES ANY CLAIM AGAINST AXIATP FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
INTELLECTUAL PROPERTY RIGHTS IN THE SERVICES. Title and intellectual property rights to the Services are owned by AxiaTP, its agents, suppliers, or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling, or publication of the Services, in whole or in part, without the express prior written approval of AxiaTP, or other owner of such material, is prohibited.
SOFTWARE LICENSE. If and to the extent Customer requires the use of licensed software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, 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 corresponding Service Term. Customer may 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 AxiaTP, including, without limitation, end-user license agreements for the licensed software. AxiaTP and its suppliers 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 this Agreement.
SOFTWARE RESTRICTIONS. Customer agrees that it shall not: (i) copy any licensed software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of AxiaTP; (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.
SOFTWARE UPDATES. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain licensed software resident in the AxiaTP Equipment or Customer-Provided Equipment. If AxiaTP has agreed to provide updates and changes, AxiaTP may perform such updates and changes remotely or on-site, at AxiaTP’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by AxiaTP.
OWNERSHIP OF IP ADDRESSES. Customer acknowledges that use of the Services does not give it any ownership or other rights in any Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
CONFIDENTIALITY. Each Party may disclose Confidential Information to the other Party in connection with this Agreement. Confidential Information may only be used by the receiving Party in connection with its performance under this Agreement. Confidential Information may not be disclosed except to those officers, directors, employees, consultants or subcontractors of the receiving party who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.
If the receiving Party is legally compelled by any means (including deposition, interrogatory, request for documents, subpoena, civil investigative demand, etc.), or is required under federal securities laws or regulations to disclose Confidential Information, the receiving Party must make reasonable efforts to provide the disclosing Party with prompt notice of such legal requirement prior to disclosure so that the disclosing Party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, receiving Party will disclose only that portion of the Confidential Information which it is advised by written opinion of its counsel, it is legally required to disclose and shall exercise all reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information.
Upon termination or expiration of this Agreement, the receiving Party will either return the Confidential Information to the disclosing Party or destroy it and certify such destruction to the disclosing Party. The obligations of this provision will survive for three years after any termination or expiration of this Agreement.
CLAIMS AND DISPUTES
Dispute Information. Customer may dispute charges invoiced by AxiaTP by completing and submitting a dispute via email to [email protected] or via telephone line at 1-866-459-5360 option 3, option 1. All claims must be submitted within 60 calendar days of the date of the invoice associated with the disputed charges, or the invoice shall be deemed correct and all rights to dispute such charges are waived.
Investigation and Resolution. AxiaTP will use commercially reasonable efforts to respond within thirty days to a billing dispute submitted by Customer. If the dispute is resolved in favor of Customer, AxiaTP will apply a credit to Customer’s account in the amount of the dispute. If the dispute is resolved in AxiaTP’s favor and Customer has withheld the disputed amount, Customer must pay the disputed amount within ten (10) business days following notice of the resolution of the dispute plus interest at the lesser of one and one half percent per month or the maximum rate permitted by law from the Payment Date through the date that Customer pays the disputed amount. If the dispute is resolved in favor of AxiaTP but Customer has timely paid the disputed amount, no interest will apply.
LIMITATION OF LIABILITY/DISCLAIMER OF WARRANTIES. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. NEITHER AXIATP NOR ANY OF ITS AFFILIATES, LICENSERS, EMPLOYEES OR AGENTS WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND NO WARRANTY IS MADE AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
IN ADDITION TO AXIATP’S OBLIGATIONS SET FORTH IN THE “CONFIDENTIALITY” SECTION AND THE “INDEMNIFICATION” SECTION HEREIN, AXIATP IS NOT LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST OPPORTUNITY OR HARM TO BUSINESS), WHETHER OR NOT FORESEEABLE, WHETHER OR NOT AXIATP HAD OR SHOULD HAVE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED, AND REGARDLESS OF THE FORM OF ACTION, NATURE OF THE CLAIM ASSERTED OR THE FRUSTRATION OF CUSTOMER’S PURPOSE. INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES OF THE KINDS SPECIFIED IN THE PRECEDING SENTENCE THAT ARE INCURRED BY A THIRD-PARTY AND ARE ASSERTED AGAINST CUSTOMER (INCLUDING ATTORNEYS’ FEES AND EXPENSES). AXIATP’S LIABILITY TO CUSTOMER FOR DIRECT DAMAGES MAY NOT EXCEED ONE MONTH’S CALCULATION OF THE APPLICABLE MRCS REGARDLESS OF THE FORM OF ACTION, NATURE OF THE CLAIM ASSERTED OR THE FRUSTRATION OF CUSTOMER’S PURPOSE. CUSTOMER’S REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR ANY AMOUNTS OWED UNDER THIS AGREEMENT. AXIATP HAS NO LIABILITY FOR THE CONTENT OF INFORMATION THAT CUSTOMER PASSES THROUGH AXIATP’S NETWORK, CUSTOMER’S TRANSMISSION ERRORS, OR ANY FAILURE TO ESTABLISH CONNECTIONS OUTSIDE OF THE AXIATP NETWORK. AXIATP SHALL NOT BE RESPONSIBLE FOR TELEPHONE NUMBERS PUBLISHED PRIOR TO CONFIRMATION THAT THE NUMBER IS INSTALLED AND THAT CALLS ARE TERMINATING PROPERLY OR FOR WRONG NUMBER CALLS MADE TO CUSTOMER’S TOLL-FREE NUMBERS.
IN NO EVENT SHALL AXIATP BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO (A) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (B) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (C) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLILCATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (D) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
GOVERNMENTAL REGULATION. Services provided under this Agreement are subject to all applicable federal, state and local laws, and regulations, rulings, orders and other actions of governmental agencies including, but not limited to, the Communications Act of 1934, as amended.
INDEMNIFICATION. Customer (“Indemnitor”) will defend, indemnify and hold harmless AxiaTP and its employees, officers, directors and agents (each, an “Indemnitee”) from and against any and all claims, actions, damages, liabilities, costs, fees and expenses (including without limitation reasonable attorneys’ fees) and any and all third-party claims, actions, damages, liabilities, costs, fees and expenses(including without limitation reasonable attorneys’ fees), arising or resulting from Indemnitor’s negligence or willful misconduct in connection with the performance of this Agreement, including without limitation, physical damage to tangible property or bodily injury. Customer will defend, indemnify and hold AxiaTP harmless from and against all third-party claims, actions, damages, liabilities, costs, fees and expenses, including without limitation reasonable attorneys’ fees, arising from violation of any third-party intellectual property right, claims of any kind by Customer’s negligent, willful, improper or illegal use, misuse, abuse, modification, or resale of the Services. AxiaTP will defend, indemnify and hold Customer harmless from and against all third-party claims, actions, damages, liabilities, costs, fees and expenses, including without limitation reasonable attorneys’ fees, arising from AxiaTP’s violation of any third-party intellectual property right due to the configuration of AxiaTP’s Network.
ASSIGNMENT. Customer may not assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of AxiaTP, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may assign this Agreement on written notice to AxiaTP no less than sixty days prior to assignment, but without AxiaTP’s consent, if to a subsidiary, affiliate or successor in interest of the Customer’s business (“Assignee”) so long as Customer provides AxiaTP with evidence satisfactory to AxiaTP, in its reasonable discretion, that Assignee’s financial condition and credit history is at least as favorable as Customer’s at the time of the proposed Assignment, Assignee agrees in a signed writing provided to AxiaTP to be bound by the terms of this Agreement, and either: (i) Customer is not in breach of this Agreement at the time of assignment and has fully paid for all Services through the date of the assignment; or (ii) Assignee agrees in a writing that is provided to AxiaTP prior to the assignment to be bound by all past obligations of Customer and cures all of Customer’s payment defaults prior to the assignment. If Customer purchases or merges with another entity that has an existing services agreement with AxiaTP, the other entity’s services will continue to be governed by its existing agreement unless otherwise agreed to in writing by Customer and AxiaTP.
AxiaTP may assign this Agreement to a purchaser of either a controlling interest in its common stock or all or substantially all of its assets, to its parent company, or to a successor company resulting from an internal restructuring. Upon such assignment, AxiaTP will have no further liability for any obligations arising after the date of such assignment. AxiaTP also may designate its Local Entities that own and/or operate telecommunications facilities in various geographical areas to provide Services under this Agreement. Such Local Entities will perform the Services in accordance with, and subject to, the terms and conditions of this Agreement. If any of the Local Entities fail to perform the Services as required hereunder, AxiaTP will remain responsible to Customer for such obligations in accordance with the terms of this Agreement. AxiaTP will continue to invoice Customer for Services rendered, shall manage Service Order acceptance and Service delivery processes hereunder and may exercise and enforce other rights on behalf of such Local Entities.
FORCE MAJEURE. If AxiaTP’s performance of any obligation under this agreement is prevented, restricted or interfered with by causes including failure or malfunction of Customer-supplied equipment, acts of God, explosions, vandalism, cable cuts, storms, fires, flood or other catastrophes, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency instrumentality, or of any civil or military authority, then AxiaTP shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. AxiaTP shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance with reasonable dispatch.
COMPLIANCE. Customer agrees to comply with all applicable federal, state, and local laws, rules, and regulations in connection with its use of the Services. Customer agrees to adhere to AxiaTP’s Acceptable Use policy (“AUP”), as the same may be amended from time to time. A constant and live copy of the AxiaTP AUP can be found at www.axiatp.com/aup.
GOVERNING LAW AND FORUM. All rights and obligations of AxiaTP and Customer with respect to the provision of Services shall be governed by and construed in accordance with the laws of the State of Indiana. All questions or controversies arising out of or in any way relating to any Service, Service Order, invoice, this Agreement or any other aspect of the relationship between AxiaTP and Customer shall be submitted to the courts of the State of Indiana having subject matter jurisdiction, and the parties submit themselves to the personal jurisdiction of all such District Courts and/or Indiana courts, as the case may be. Customer further agrees that venue for any legal action brought by either party shall be proper in Allen or Marion County and Customer waives any right to challenge venue in either such county.
Customer agrees to pay all costs, including reasonable attorney’s fees and expenses, incurred by AxiaTP for the enforcement of any right or obligation as provided in this Agreement and/or for the collection of any amounts due, at trial and any appellate level. The right to such attorney’s fees and expenses shall be deemed to have accrued from the commencement of any such activities and shall be enforceable whether or not such action is filed or prosecuted to judgment.
WAIVER OF JURY TRIAL. CUSTOMER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION INVOLVING THE PARTIES.
LIMITATION OF ACTIONS. Customers agrees that any claim or cause of action it may hereafter have against AxiaTP shall be brought and commenced within one year of the expiration or termination of this Agreement. Customer waives its right to bring any claims or causes of action in any court, whether based in tort or contract, against Action beyond one year after the expiration or termination of this Agreement.
The rights and remedies herein are cumulative and not exclusive of other rights and remedies which may be granted or provided by law, and nothing herein contained shall be construed to preclude or in any way prohibit AxiaTP from instituting and otherwise prosecuting to judgment a lawsuit in any court of competent jurisdiction to effect the collection of any sums due it or to enforce any right or remedy arising hereunder or otherwise.
NOTICES AND FACSIMILE SIGNATURES. Unless otherwise provided in this Agreement, any notice required under this Agreement must be in writing and be delivered to the receiving Party (i) in person, (ii) by certified mail with return receipt requested, or (iii) by overnight courier to the addresses below. A notice is deemed given (i) when delivered, if personally delivered, (ii) at the time indicated on the return receipt, if delivered by certified mail, or (iii) at the time the Party or its representative executes the delivery receipt, if delivered via courier.
If to AxiaTP:
Company Axia Technology Partners, LLC
Address 151 N Delaware Suite 1750
City, State, Zip Code Indianapolis, IN 46204
Attention Jason Ross
If to Customer:
City, State, Zip Code
The delivery of any Party to the other of a telecopy or facsimile signature to this Agreement or any notice hereunder shall have the same effect as the delivery of an original signature; provided, however, that the Customer thereafter shall promptly deliver an original signature page to the other (although any failure or delay in the delivery of an original signature shall not vitiate or impair the legally binding effect of a telecopy or facsimile signature).
REFORMATION AND SEVERABILITY. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be declared invalid or unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, and the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those declared invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
SURVIVAL. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate.
USE OF CUSTOMER INFORMATION. From time to time AxiaTP is able to provide the Customer with product marketing or education information based on existing or presumed use of one or more Company services. This information is called Customer Proprietary Network Information or CPNI. AxiaTP may use CPNI to advise the Customer on utilizing existing or new related products. AxiaTP does not sell or provide this information to any third parties, other than the E911 records required by law if you are a telephone customer. Customer has a right to restrict Company’s access to CPNI. If you choose to opt-out of AxiaTP’s use of CPNI, please contact our business office to be placed on a list where we will not use your CPNI. Further, the Customer hereby gives Company permission to contact them at the phone number listed in the service agreement about future services that AxiaTP will be offering that may be of interest to customer.
ENTIRE AGREEMENT. This Agreement, including any and all Service Orders and addendums to all Service Orders which are incorporated herein, contains the entire agreement and understanding concerning the Services and supersedes all prior negotiations and all other agreements, whether electronic, written or oral. This Agreement may only be modified by a written agreement duly signed by authorized representatives of both parties. However, the Acceptable Use Policy may be modified at any time hereafter by AxiaTP. AxiaTP will notify you of any such changes by posting a notice of such changes at www.axiatp.com or by notice via e-mail or postal mail. Customer’s continued use of Services following such notice constitutes acceptance of all of such changes. A printed or electronic version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative hearings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
NO THIRD-PARTY BENEFICIARIES. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
NO WAIVER. No failure by either party to enforce any rights under this Agreement shall constitute a waiver of any such right or another right.
NON-SOLICITATION OF AXIATP EMPLOYEES. During the term of this Agreement and any Service Order, and for a period of one (1) year after the Termination of this Agreement, Customer will not, directly or indirectly, solicit, encourage or induce any person who provides services to AxiaTP, whether as an employee, consultant, independent contractor or agent to terminate his or her relationship with or services for AxiaTP and shall not, directly or indirectly, either individually or as owner, agent, employee, consultant or otherwise, employ or offer employment to any person who is or was employed by AxiaTP unless such person shall have ceased to provide services to AxiaTP for a period of at least six (6) months.
PHONE SPECIFIC TERMS AND CONDITIONS
DIRECTORY LISTING. Customer shall provide its name, address, phone numbers and any other information requested by AxiaTP to AxiaTP, and it is understood and agreed Customer’s white page directory listing will appear using that information. It is Customer’s sole responsibility to inform AxiaTP in writing of any change in the information, including telephone number and address, at least 90 days prior to the local telephone directory issue date, which will be provided to Customer upon request. AxiaTP assumes no liability whatsoever for errors in the listing and Customer releases AxiaTP from any damages for any error in the directory listing.
CUSTOMER SHALL HOLD AXIATPTP HARMLESS AGAINST ANY AND ALL CLAIMS FOR DAMAGES CAUSED OR LCAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY ANY ERRORS OR OMISSIONS RELATING TO ANY DIRECTORY LISTINGS.
911/SERVICE ADDRESS. It is the sole responsibility of Customer to notify AxiaTP if Customer’s 911 address is not to be the same as the address provided to AxiaTP in the Service Orders. Verification of this address will ensure emergency personnel are directed to the correct location when dispatched. Customer acknowledges and understands that phone services use electrical power in Customer’s Service Location. If there is an electrical power outage, 911 calling may be interrupted if a battery backup is not installed or fails. Calls, including 911 calls, may not be completed if Customer exceeds its calling capacity or if there is a problem with the network facilities.
CUSTOMER ACKNOWLEDGES AND AGREES THAT AXIATP WILL NOT BE LIABLE FOR ANY INABILITY TO DIAL 911 USING THE SERVICES, AND/OR INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL.
MINIMUM SYSTEM REQUIREMENTS AND WIRING. Customer hereby acknowledges that any system must meet minimum system requirements in order to access the services. Customer also agrees and acknowledges that certain inside wiring and/or equipment may be necessary in order to complete installation for the Services. Any fees for such wiring and/or equipment will be billed to Customer based on the prevailing hourly rate for AxiaTP technicians and the cost of such equipment.
CUSTOMER EQUIPMENT. AxiaTP is not responsible for any telephone system, computer or network malfunctions and/or damage to Customer’s hardware or software (specific to systems that AxiaTP didn’t sell, provision, or install). If any of Customer’s equipment requires modification or reprogramming to make it compatible with any AxiaTP provided service, AxiaTP shall not be liable for any applicable costs associated with modification or reprogramming.
PORTING OF TELEPHONE NUMBERS. It shall be the sole responsibility of Customer to provide AxiaTP with all telephone numbers that Customer wants ported from its existing telecommunications carrier to AxiaTP. Customer agrees that AxiaTP shall not have any liability to Customer or any other person or entity and disclaims any such liability for telephone numbers that are not ported over to AxiaTP and which are subsequently disconnected by Customer’s previous carrier.
CUSTOMER OBLIGATIONS TO TERMINATE SERVICES WITH EXISTING CARRIER. It shall be the sole responsibility of Customer to terminate any services with Customer’s existing and/or previous telecommunications carrier. In no event shall AxiaTP have any obligation to terminate such services on behalf of Customer and Customer agrees that AxiaTP shall have no liability to Customer or any other person or entity as a result of such services not being terminated and for any charges incurred for continued or overlapping billing periods for any services from Customer’s existing and/or previous carriers.
LOCAL MINUTES OF USE (MOU). Customer shall receive 2,500 Local MOU per BTN; Local MOU usage that exceeds 2,500 Local MOU shall be billed at $0.015 per minute. Customers who opt for a usage based plan, without a BTN, shall be billed $0.015 for all Local MOU.
BILLING TELEPHONE NUMBER “BTN”. Each Customer is eligible for one BTN per physical address. Customers who have multiple geographic locations are eligible for one BTN per physical address. In no event shall customers receive more than one BTN per physical address.
TOLL FRAUD. IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO MAINTAIN SECURE SYSTEMS AND PASSWORDS AT ALL TIMES AND CUSTOMER IS EXCLUSIVELY LIABLE FOR ANY AND ALL TOLL FRAUD ARISING FROM OR ASSOCIATED WITH ITS ASSIGNED IP ADDRESSES, CUSTOMER PREMISE EQUIPMENT, OR OTHER DEVICES FOR WHICH CONNECT TO THE AXIATP NETWORK. ADDITIONALLY, CUSTOMER IS RESPONSIBLE FOR PAYMENT OF ANY CHARGES INCURRED DUE TO FRAUD (INCLUDING TOLL FRAUD), ABUSE, OR MISUSE OF THE SERVICES, WHETHER KNOWN OR UNKNOWN TO CUSTOMER, AND WHETHER OR NOT AXIATP TAKES ANY ACTIONS TO STOP OR BLOCK SUCH FRAUD.
DELETION OF VOICE DATA. AxiaTP reserves the right, upon termination of this Agreement, to delete Customer’s voicemail, call detail, data, and files that are stored on AxiaTP’s servers or systems. Customer understands and acknowledges that AxiaTP shall have no liability as a result of the loss or removal of any such voicemail, call detail, data, or files.
INTERNET SPECIFIC TERMS AND CONDITIONS
SERVICES. AxiaTP will provide, and Customer will purchase Internet access on the terms and conditions set forth in this Agreement. The Customer will be responsible for obtaining any equipment needed to access, connect to, or use the Services, at its cost and expense, and for insuring that equipment is compatible with the Services. Internet Services provided pursuant to this Agreement are intended for commercial use only.
NETWORK AVAILABILTITY. Based on network availability, Internet access service is a “best efforts” service, which can provide Upstream and Downstream speeds selected by the Customer. The actual speed experienced by the Customer may vary and depend on several factors not limited to, but including, Customer location, the destination on Internet, traffic on Internet, other factors not controllable by AxiaTP. No minimum level of speed is guaranteed without a specific service level agreement.
EQUIPMENT NETWORK ADDRESS. In order to use the services, AxiaTP will provide to the Customer a non-portable TCP/IP network address (es). Any pre-existing Customer network address (es), because of the Companies’ network configuration may not be routable on the Companies’ network.
MINIMUM SYSTEM REQUIREMENTS AND WIRING. Customer acknowledges that any computer must meet minimum system requirements in order to access the services. Customer also agrees and acknowledges that certain inside wiring and/or equipment may be necessary in order to complete installation for the Services. Any fees for such wiring and/or equipment will be billed to the Customer based on the prevailing hourly rate of $150.00 per hour for AxiaTP technicians and the cost of such equipment.
ALLOWED USE. AxiaTP is providing Internet access service on a retail basis to the Customer. The Customer agrees to utilize the service exclusively and not to provide access to third parties either through “sharing” or “Resale” unless with advance written approval from AxiaTP. The sharing of passwords or accounts is strictly prohibited. Any evidence of the services prohibited within this agreement would be a breach of this agreement and immediate termination of the Internet access connection without prior notice would occur upon determination of these services being offered.
SECURITY. Customer is solely responsible for the security of any device Customer chooses to connect to the Services, including any data stored on that device. AxiaTP recommends against enabling file or printer sharing of any nature whatsoever. AxiaTP recommends that any files or services Customer chooses to make available for remote access be protected with a password or other security device. AxiaTP recommends that Customer install a firewall to ensure the privacy of Customer’s communications and to protect its data and network. Customer expressly assumes any and all risks relating to the security of its communications, data and network and its potential access by others. AxiaTP does insure that all customer records and information collected throughout the sale process or during the client relationship with AxiaTP will be protected and secured.
ABUSE. Any attempt by Customer or anyone using the services to undermine or cause harm to a server, network or customer of AxiaTP is strictly prohibited. AxiaTP will immediately respond to any use, or attempted use, of an Internet account or computer without the owner’s authorization. Such attempts include, but are not limited to, “Internet scamming”, phishing, password robbery, and security hole scanning, denial of service attacks and network broadcasting. Any unauthorized use of accounts or computers by Customer, or any person accessing AxiaTP’s networks and systems using Customers account, whether or not the attacked account or computer belongs to AxiaTP will result in action against the offender. Possible actions include warnings, account suspension or revocation, and civil legal action, or referral to appropriate law enforcement agencies depending on the seriousness of the offense.
“Affected Service(s)” means any AxiaTP product or service being used by Customer for which Customer has experienced a Service Outage for which Customer opened a Trouble Ticket via AxiaTP Technical Support.
“AxiaTP’s Equipment” means the telecommunications equipment, cable, and facilities installed, operated and controlled by AxiaTP or its Carrier Partners for provision of the Services to Customer.
“AxiaTP’s Network” or “Network” means those telecommunications facilities operated by AxiaTP or its Carrier Partners and excludes any telecommunications facilities that are operated by other telecommunications providers.
“Billing Telephone Number” means the primary number used to identify the account to which usage for a particular telephone number, or series of telephone numbers, belongs.
“Carrier Partners” means any telecommunications carrier that AxiaTP engages or contracts with to deliver, supply, or support AxiaTP products or services. Carrier Partners are not employees or agents of AxiaTP, but rather are independent contractors. AxiaTP assumes no liability, and shall not be held liable by Customer, for any damages caused by the acts or omissions of any Carrier Partner.
“Charges” means all NRCs, MRCs, Additional Charges, Fees and Costs and any and all other amounts payable by Customer pursuant to the Master Service Agreement.
“Confidential Information” means any and all information of or concerning a Party obtained by the other Party or to which such other Party has direct or indirect access, whether marked as confidential or not, in any form, format or media, including information obtained from oral or other transitory means, unless expressly and specifically indicated at the time of disclosure to be non-confidential. Confidential Information shall include but is not limited to: (a) pricing and cost information; (b) business methods and processes; (c) patentable subject matter and patent applications; (d) trade secrets; (e) the terms of any agreement between the Parties, except to the extent otherwise stated in such agreement; (f) any information that is marked confidential, restricted, proprietary, or with a similar designation; and (g) proprietary information such as IP addressing data, routing protocols and tables, router configuration syntax, specifications, processes, methods, ideas, techniques, drawings, works of authorship, inventions, know-how, software, algorithms and formulae related to the current, future, and proposed products and services of each of the Parties, including without limitation information concerning research, development, financials, procurement, customer lists, investors, employees, third party relationships, prospective customers, products and services, forecasts and marketing plans.
“Local Entities” means the partnership, corporation, or other legal entity in which AxiaTP has a controlling interest and such legal entity is certified to provide Services in the particular geographic area.
“Local MOU” means the total aggregate amount of local minutes of usage; calculated as outbound local minutes of use (outbound calls to a customer’s local calling area) plus inbound minutes of use (non toll-free calls to the customer’s local numbers) plus outbound minutes of use to domestic toll free numbers (outbound calls to toll free numbers within the continental United States).
“MRC” means the monthly recurring charges associated with a Service.
“NRC” means the non-recurring charges associated with a Service or a hardware purchase.
“Parties” means collectively AxiaTP and Customer, and “Party” means AxiaTP and/or Customer as the case may be.
“Service(s)” means telecommunications products or services provided by AxiaTP or its Carrier Partners in the form of physical or virtual circuit(s) connecting individual locations to one another or to a network pursuant to the Agreement and the attached schedules.
“Service Order” means the order from the Customer identifying the Service being requested, type of service, quantity of circuits, A & Z locations, protocols, Service Term, requested start of service date and any other information reasonably necessary to describe the requested Service.
“Service Outage” means either; (a) a complete loss of transmit or receive capability or the inability to make inbound or outbound calls for a Service and such inoperability is caused by AxiaTP’s Equipment or Network, or (b) a material non-compliance with a specific performance metric in a service level agreement and such non-compliance is caused by AxiaTP’s Equipment or Network.
“Service Term” means the duration for a particular Service Order and any renewal periods, during which Customer is responsible for all Charges.
“Tax” or “Taxes” mean any federal, state or local excise, gross receipts, value added, sales, use or other similar tax, fee, tax-like fee or surcharge of whatever nature and however designated imposed, or sought to be imposed, on or with respect to purchases by Customer from AxiaTP for consideration under this Agreement or for AxiaTP’s use of public streets or rights of way, which AxiaTP is required or permitted by law or a tariff to collect from Customer; provided, however, that the term “Tax” will not include any tax on AxiaTP’s corporate existence, status, income, corporate property or payroll taxes.
“Term” means the duration of this Master Services Agreement as specified in the Term Section above and any renewal periods.
“Termination Date” means, with respect to any Service, the date on which such Service is disconnected.
“Early Termination Fee” means, with respect to each existing Service Order, an amount equal to:
(a) the number of months remaining in the Service Term of the applicable Service Order from the
(b) Termination Date through the end of the applicable Service Term, multiplied by the MRCs with respect to each Service that is terminated; plus
(b) all Charges that are unpaid as of the Termination Date; plus
(c) all costs and expenses incurred by AxiaTP in disconnecting such Service; plus
(d) any other amounts required to be paid by Customer pursuant to the applicable Service Order.