Updated: 7/1/2022 – Version 5.0
- Applicability. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Tekscape Inc. (“Tekscape”) to Customer and apply to Customer’s use of the services and equipment provided by Tekscape, as well as Customer’s access to the Tekscape website (the “Website”). The accompanying Proposal, Purchase Order, Statement of Work, or Managed Services Agreement, as applicable, and pricing summary (the “Proposal”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Proposal, these Terms shall govern, unless the Proposal expressly states that the terms and conditions of the Proposal shall control. By signing the Proposal, Customer agrees to be bound by these Terms. These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
- Additional Terms. Additional Terms may apply depending on the Services. If Customer has purchased Aria or Tekcloud services, then the Terms in the attached Addendum A and Addendum B, as applicable, are incorporated into the Terms by reference and shall apply to Customer.
- Services. Subject to Section 4, Tekscape shall provide the services to Customer as described in the Proposal (the “Services”) in accordance with these Terms. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written public comments made by Tekscape with respect to future functionality or features.
- Performance Dates. Tekscape shall use reasonable efforts to meet any performance dates specified in the Proposal, and any such dates shall be estimates only.
- Customer’s Obligations. Customer shall:
(a) cooperate with Tekscape in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Tekscape, for the purposes of performing the Services;
(b) respond promptly to any Tekscape request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Tekscape to perform Services in accordance with the requirements of this Agreement;
(c) provide such customer materials or information as Tekscape may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects;
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and
(e) designate a specific representative as the liaison authorized to act on its behalf to make decisions, and to provide approvals for drawings, reports, presentations and other documents and data. Upon receipt of Customer’s written decisions, approvals and authorizations, the Services to be provided by Tekscape shall be provided promptly in a manner designed to meet the schedules contained in the Proposal. Tekscape’s services for a particular phase of the Proposal shall commence only after Customer’s written approval of the previous phase, and Customer’s written authorization to proceed. Services will be provided in non-sequential phases only if requested by Customer
- Customer’s Acts or Omissions. If Tekscape’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Tekscape shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Change Orders.
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Tekscape shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any ChangeOrder unless mutually agreed in writing.
(c) Notwithstanding Section 7(a) and Section 7(b), Tekscape may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Proposal.
(d) Tekscape may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Proposal.
- Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by Tekscape and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Proposal, including but not limited to monthly service charges, installation charges, set-up charges, usage- based charges, rental fees and other charges and fees (the “Fees”). Any additional consulting services performed beyond the scope of the Proposal shall be invoiced on the basis of pre-determined billing rates included as aProfessional Services Rates Table to the Proposal and the hours actually expended, or on the basis of a mutually agreed upon fixed fee. Customer will be invoiced monthly in advance for non-usage-based charges and in arrears for all usage-based charges.
(b) For Aria services, Tekscape will invoice Customer the Fees following the ServiceActivation Date unless otherwise indicated in the Proposal. “Service Activation Date” means the date in which Tekscape determines that Customer is able to originate and terminate communications services on the Tekscape network. Services shall be deemed accepted by Customer on the Service Activation Date.
(c) The recurring monthly fee for managed services and support is determined by multiplying the per-endpoint charges shown in the Proposal by the number of each type of endpoint that is in use on the Customer’s network (or in the Customer’s locations supported by Tekscape in the event the Customer has multiple locations not all supported by Tekscape). The quantity and dollar amount in the Proposal is the floor for the basis of billing and discount extended for the term. Tekscape secures resources and contracts based on the quantity floor described above. Should the quantity of endpoints increase the invoice will increase based on the associated SKU multiplied by the cost per SKU in quoting section. The monthly invoice amount for the term will not decrease below the calculated amount which is identified in the Proposal.
(d) Except as otherwise set forth in this Agreement, Tekscape shall be responsible for all costs and expenses incident to completing the Services and shall provide its own supplies and equipment. Customer agrees to reimburse Tekscape for all reasonable travel and out-of-pocket expenses incurred by Tekscape in connection with the performance of the Services approved in advance by Customer.
(e) Customer shall pay all invoiced amounts due to Tekscape within 30 days from the date of Tekscape’s invoice in US dollars by wire transfer, credit card, or check, together with any processing fees.
(f) In the event payments are not received by Tekscape within 30 days after becoming due, Tekscape may: (i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.
- Taxes and Other Charges. Unless otherwise stated in the Proposal, Customer shall be responsible for all: (i) non-recurring charges and monthly recurring charges as set forth in the Proposal;(ii) sales, use, value added, withholding or other taxes or duties with respect to the Services ordered(except for income taxes imposed on Tekscape); (iii) any taxes imposed by governments or regulatory agencies, and (iv) any other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (collectively, the “Fees”). Any imposition, modification or increase in Fees by a government or regulatory agency, or that are intended to recover costs associated with government or regulatory programs, shall become effective upon date of enactment. Due to Federal, state and local laws, Tekscape may be obligated to withhold a portion of the payment and remit it to such taxing authorities unless Customer provides documentation acceptable to Tekscape and such taxing authorities that the withholding of tax is not required. Customer consents to such tax withholding in accordance with the above.
- Rental of Equipment. If so indicated on any Proposal, Tekscape shall rent certain equipment to Customer. Such rented equipment shall be listed on the Proposal and/or on any other form signed by Customer (the “Equipment”). Any such rental shall be subject to the terms and conditions set forth in the Equipment Rental Policy, as may be provided hereunder and amended from time to time, and incorporated herein by reference. Customer shall be solely responsible and liable for any of its user’s compliance with this Agreement and the proper use of the Equipment and the Services.
- Unauthorized Use. If Tekscape becomes aware of Customer’s illegal or unauthorized use of or access to Tekscape Services, facilities, network or third party networks (including, in any case and without limitation, any use contrary to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512), or Tekscape otherwise receives notice or has reason to believe such use or access may be occurring, thenCustomer will cooperate in any resulting investigation by Tekscape or government authorities and be liable for any resulting damages. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any violation of the Rules of Use or illegal or unauthorized use or access, Tekscape may immediately suspend the Service without further liability to Tekscape. Further, upon reasonable notice to Customer except in the case of emergency, Tekscape may modify or suspend the Service as necessary to protect its networks, customers or comply with any law or regulation. Under no circumstances will Customer take any actions in connection with its use of or access to the Service that could result in any harm or damage to any third party network or any of Tekscape’s network, premises, equipment, or other customers.
- Other Networks; Approval and Usage. Services may include the ability to transmit data through public or private third party networks. Customer acknowledges that the use or presence of third party networks may require their prior approval and agreement on the part of Customer to be bound by their current or future usage policies. Tekscape will not be liable for any failure to obtain such approval or any violation by Customer of such policies. Customer understands that Tekscape does not own or control third party networks, and agrees that Tekscape shall not be responsible or liable for the performance or nonperformance of third party networks or guaranteeing within interconnection points between theService and third party networks.
- Intellectual Property. 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 that are delivered to Customer under this Agreement or prepared by or on behalf of the Tekscape in the course of performing the Services, including any items identified as such in the Proposal (collectively, the”Deliverables”), except for any Confidential Information of Customer or customer materials, shall be owned by Tekscape. Tekscape hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicense able, 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.
- Confidential Information. All non-public, confidential or proprietary information of Tekscape, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “ConfidentialInformation”), disclosed by Tekscape to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Tekscape. Confidential Information does not include information that is: (i) in the public domain; (ii) known toCustomer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Services andDeliverables. Tekscape shall be entitled to injunctive relief for any violation of this Section.
- Non-Solicitation. Unless otherwise agreed to in writing, both parties agree that during the Term of this Agreement and for a period of one (1) year immediately following the termination or expiration of thisAgreement for any reason, each party agrees not to solicit or induce any employee, affiliate, or subcontractor to terminate or breach an employment, contractual or other relationship with such party.
- Representation and Warranty.
(a) Tekscape represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) Tekscape shall not be liable for a breach of the warranty set forth in Section 16(a) unlessCustomer gives written notice of the defective Services, reasonably described, to Tekscape within 10days of the time when Customer discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 16(b), Tekscape shall, in its sole discretion, either: (i) repair or re perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
(d) THE REMEDIES SET FORTH IN SECTION 16(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OFTHE LIMITED WARRANTY SET FORTH IN SECTION 16(a).
- Service Levels. Except for any event described in Force Majeure (Section 30(c)), Tekscape will use commercially reasonable efforts to respond to service disruptions and outages once notified in writing by Customer. In the event of service disruptions or outages, Customer’s sole remedy, and Tekscape’s sole obligation, shall be to provide the remedies set forth in Section 16(c).
- Disclaimer of Third Party Actions and Control. Customer acknowledges and agrees that Tekscape does not and cannot control the flow of data between Tekscape’s network and third party networks. Such flow depends on the performance of third party networks and the services provided or controlled by third parties. Action or inaction caused by these third party networks can produce situations in which Tekscape customers’ connections may be impaired or disrupted. Although Tekscape will use commercially reasonable efforts to remedy and avoid such events, Tekscape cannot issue any warranties over these third party networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF SECTION 16 ABOVE, TEKSCAPE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR INCORRECT PERFORMANCE OF THIRD PARTY NETWORKS.
- Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 16(A)ABOVE, TEKSCAPE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES,OR ANY PRODUCT MANUFACTURED BY A THIRD PARTY THAT MAY CONSTITUTE, CONTAIN, BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH, THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Tekscape does not warrant: (i) that the Services will meet the Customer’s requirements, (ii) that the operation of the Services will be uninterrupted or error-free; or (iii) that all errors in the Services can be corrected.
- Cybersecurity Protections and Incidents.
(a) CUSTOMER SHALL IMPLEMENT COMMERCIALLY REASONABLE SECURITY MEASURES SUCH AS ENCRYPTION TECHNOLOGIES, PASSWORD AND USER ID REQUIREMENTS, AND PROCEDURES REGARDING THE APPLICATION OF SECURITY PATCHES AND UPDATES AND OTHERWISE COMPLY WITH ALL RELEVANT SECURITY INDUSTRY STANDARDS AND PRACTICES AS THEY PERTAIN TO THE SERVICES, EQUIPMENT, OR OTHER PRODUCTS NAMED IN THE PROPOSAL.
(b) In the event of a Cybersecurity Incident (defined below), Customer will reasonably cooperate with Tekscape, including granting access to Customer’s systems as necessary, to reduce impact and determine the cause and scope of the incident. “Cybersecurity Incident” means a violation or imminent threat of violation of cybersecurity policies, acceptable use policies, or standard cybersecurity practices which results in unauthorized access (e.g. hacking), misuse, damage, denial of service, compromise of integrity, or loss of confidentiality of a network, server, transmission facility, computer, application, programs, or data. Neither Tekscape nor any of its employees, agents, representatives, service suppliers or licensors will be liable for Cybersecurity Incidents.
- Fraud. Customer agrees to notify Tekscape immediately if it becomes aware of any fraudulent or unauthorized use of or access to its account, Services, or Equipment. Tekscape shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of or access to Customer’s account and the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
- Consent to Recording. In the event the Services include monitoring of incidents on a 24-hour, 7-day a week basis through audio and video recording components, then Customer consents to the installation of such components at its premises and will take all steps necessary to alert individuals at its premises of recording by audio and video. Certain federal and state laws prohibit interception and recording of audio and video communications by electronic means, including the interception and recording of audio and video communications by Tekscape’s recording components at Customer’s premises. Customer further consents to the interception, recording, disclosure and use of the contents of any audio or video communications in connection with the Services. Customer shall also notify all individuals at its premises with respect to any such interception, recording, disclosure or use. The monitoring services are solely to identify incidents related to the Services to be provided, which may be through real-time access to the audio and video recording components or through storage and retrieval of recorded audio and video stored on Tekscape’s servers, which storage shall be limited and subject to change in Tekscape’s discretion. The monitoring services are not intended: (i) to reduce or eliminate any risk of loss, (ii) as an insurance policy, (iii) to replace alarm monitoring services, or (iv) to detect or prevent unauthorized activity on the Customer’s premises or any other emergency condition. The monitoring services are provided and shall be used only for the identification of incidents related to the Services and no other purpose.
- Limitation of Liability.
(a) IN NO EVENT SHALL TEKSCAPE 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 WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL TEKSCAPE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE PROPOSAL IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Term. The Services are offered for the initial contract term specified in the Proposal (the “InitialService Term”). Following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term, or any other term mutually agreed by the parties in the Proposal (each, a”Renewal Term”) unless and until either party notifies the other party in writing no earlier than sixty (60)days and no later than thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services. The Initial Service Term and any Renewal Term will be collectively referred to as the “Term”.
(a) In addition to any remedies that may be provided under this Agreement, Tekscape may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If this Agreement is terminated by Tekscape under this subsection, Tekscape shall be entitled to retain all Fees paid to date, including those Fees forServices paid in advance but not yet performed.
(b) If Customer wishes to terminate any Services under this Agreement prior to the expiration of the Term, Customer must notify Tekscape in writing, no less than 30 days prior, and shall pay an early termination fee of the greater of (i) eighty percent (80%) of the highest amount billed in any month during the Term multiplied by the remaining months in the Term; or (ii) the last month’s billed amount multiplied by the remaining months in the Term. The parties agree that this early termination fee is a reasonable estimate of anticipated actual damages and not a penalty. Tekscape shall not be obligated to perform any transition of services or of Customer’s data to a new provider until Tekscape has received payment in full under this subsection.
- Insurance. During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability(including product liability) in commercially reasonable amounts for Customer’s industry with financially sound and reputable insurers. Upon Tekscape’s request, Customer shall provide Tekscape with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in theseTerms. Customer shall provide Tekscape with 30 days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law,Customer shall require its insurer to waive all rights of subrogation against Tekscape’s insurers and Tekscape.
- No Lease. Except as otherwise provided herein, the Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of Tekscape or in any personal property or server space leased by Tekscape (except for the Equipment rental), and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
- Indemnification by Customer. Customer shall indemnify and hold harmless Tekscape, its directors, officers, employees, and agents (collectively, “Tekscape Indemnitees”) against any loss, liability, damage or cost (including reasonable attorney’s fees) (“Losses”) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Tekscape Indemnitees by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer, its directors, officers, employees, or agents, or any user of the Service or Equipment; (ii)Customer’s, or its directors, officers, employees, or agents, material breach of this Agreement; (iii)violation of any law or regulation by Customer, its directors, officers, employees, or agents, or any user of the Service; or (iv) any theory of product liability (including, without limitation, actions in the form of tort, warranty or strict liability). For any purchase of Cloud services, Customer shall also indemnify and hold harmless Tekscape Indemnities from any Losses for Claims arising from or relating to: (W) any Content or information on the Cloud Server (defined in Addendum B); (X) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by Customer, its directors, officers, employees, agents, or end user; (Y) Customer’s relationship with the manufacturer of any software installed or stored on the Cloud Server; and (Z) Customer’s failure to use reasonable security precautions. Notwithstanding the foregoing, Customer shall not owe an indemnification obligationhere under to the extent that such Losses result from (A) any material breach by Tekscape of its obligations under this Agreement, or (B) the gross negligence or intentional acts or omissions in connection with the work performed by or on behalf of Tekscape. Tekscape will provide Customer with written notice of the existence of any basis for indemnification and Tekscape will select its defense counsel. Customer will have the right to approve any settlement, but may not unreasonably withhold its approval. Customer agrees to indemnify Tekscape from all costs, expenses and liabilities as they become due.
(a) Government Regulations. Customer will not use the Tekscape network or the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations to whose jurisdiction Customer is subject.
(b) Waiver. No waiver by Tekscape of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Tekscape. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(c) Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Tekscape hereunder)when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the impacted party’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, governmental actions, war, terrorist threats or acts, riot, or other civil unrest, national or regional emergency, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of six (6) months, the impacted party shall be entitled to give notice in writing to the other party to terminate this Agreement.
(d) Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Tekscape. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Tekscape may, without the consent of Customer, assign any of its rights or delegate any of its obligations under this Agreement without any prior consent if such assignment or delegation is to: (i) an affiliate of Tekscape; (ii) a successor of Tekscape, by consolidation, merger, or operation of law; (iii) a purchaser of all or substantially all of Tekscape’s assets; or (iv) a lender of Tekscape as collateral.
(e) Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.Customer is interested only in the results obtained hereunder; the manner and means of achieving the results are subject to Tekscape’s sole control. Tekscape is an independent contractor for all purposes, without express or implied authority to bind Customer by contract or otherwise.
(f) Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
(g) Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of theState of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
(h) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier(with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail(in each case, return receipt requested, postage prepaid). Except as otherwise provided in thisAgreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving theNotice has complied with the requirements of this Section.
(i) Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or un-enforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(j) Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
(k) Subcontractors. Tekscape may, at Tekscape’s own expense, employ engage such persons (“subcontractors”) as Tekscape deems necessary to complete the Services; provided that prior to employing or engaging such persons, Tekscape enters into written agreements with each, containing terms that are substantially similar to those in this Agreement and all terms necessary for both Tekscape and Tekscape’s subcontractors to comply with this Agreement, including but not limited to, Confidentiality.Customer may not control, direct, or supervise the performance of Tekscape’s subcontractors. Tekscape assumes full and sole responsibility for the payment of all compensation and expenses of Tekscape’s subcontractors, and for any applicable all state and Federal and State income tax, unemployment insurance, Social Security, disability insurance, or and other applicable withholdings.
(l) Resale. Customer represents and warrants that it will be the end user of the Services.Customer shall not in any way resell, license or permit or suffer any third party to use the Services without receiving Tekscape’s prior written consent, which consent may be withheld in Tekscape’s sole and un reviewable discretion.
- Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Taxes (Section 9), Intellectual Property (Section 13), Confidentiality (Section 14), Non-Solicitation (Section 15), Indemnification by Customer (Section 28), Miscellaneous (Section 29), andSurvival (Section 30).
ADDENDUM A – ARIA
CUSTOMER IS ADVISED TO READ THIS ADDENDUM CAREFULLY BEFORE USING THE SERVICE.THIS SECTION EXPLAINS THE OPERATION AND LIMITATIONS OF VOIP E911 EMERGENCY CALLS
E911 Service. The purpose of this Section is to advise Customer of the limitations of the Emergency 911(“E911”) service and that while some individual services offer access to E911 service, others may not. Further, that E911 service may not function or be available to Customer with the loss of electrical power or if the broadband connection is not operational. E911 service may not be available at any remote location if internal users are allowed to use the VOIP-based phones remotely. Customer is advised to thoroughly understand the Service and the options available if E911 service is not available through theService purchased. By accepting this Agreement, Customer acknowledges that it has been advised as to the limitations of E911 services, understands them, and assumes the risks associated with them. Tekscape may disclose to the FCC that Customer has acknowledged the E911 disclosure by virtue of Customer having accepted this Agreement. Tekscape may update its E911 policy from time to time upon reasonable notice to Customer.
ADDENDUM B – TEKCLOUD
A. Definitions. (a) “Application” means software that performs a specific task, as opposed to an operating system, which runs a computer or server. (b) “Cloud Server” means an unmanaged VirtualServer that is running on the Infrastructure. (c) “Infrastructure” means the data centers, security devices, cables, routers, switches, hosts, compute nodes, physical servers, and other equipment that Tekscape uses to host Virtual Servers. (d) “Virtual Server” means one of any number of isolated server emulations running on a single physical server located on the Infrastructure.
B. Security. Customer agrees to implement security measures that are commercially reasonable for its use of the Tekcloud Services, including encryption technologies, password and user ID requirements, and procedures regarding the application of security patches and updates. Neither Tekscape nor any of its employees, agents, representatives, service suppliers or licensors will be liable for unauthorized access (i.e., hacking) into the Cloud Servers or Customer’s transmission facilities, premises or equipment, or for unauthorized access to data files, programs, procedures or information thereon, unless and only to the extent that this disclaimer is prohibited by applicable law.
C. Content. Customer is solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all Applications, information, software, and data, including any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that Customer or its subcontractors or end users create, install, upload or transfer on, from or through the Cloud Servers (“Content”). Tekscape may immediately (and without prior notice) block access to any Content on the Cloud Servers: (i) that Tekscape believe violates the law, misappropriates or infringes the intellectual property rights of a third party, or violates the terms and conditions of this Agreement; or (ii) pursuant to the Digital MillenniumCopyright Act, a subpoena, or an order issued by a court or government agency.
D. Maintenance; Service Modifications and Discontinuance. In addition to Tekscape’s right to suspend or terminate the Tekcloud Services as set forth elsewhere in this Agreement, Tekscape may suspend all or part of the Tekcloud Services without liability or prior notice to Customer: (i) in order to maintain (i.e., modify, upgrade, patch, or repair) its Infrastructure or any Cloud Servers; (ii) as Tekscape determines may be required by law or regulation; or (iii) as Tekscape determines to be necessary to protect its Infrastructure and clients from unauthorized access or an attack on the Tekcloud Services.Notwithstanding the foregoing, Tekscape will endeavor in good faith to provide Customer with advance notice of any suspension or termination under this Section D and Tekscape will provide Customer with notice of the suspension or termination as soon as it becomes practicable for Tekscape to do so.
E. Backups. Notwithstanding anything in this Agreement to the contrary, Customer is solely responsible for backing up all Content on the Cloud Servers and for implementing snapshots of its CloudServers. Customer acknowledges that snapshots will not record an autonomous copy of any file and thatCustomer cannot restore lost data from a snapshot. Snapshots may enable Customer to restore its system to a specific point in time, but they are not an adequate backup solution. Customer agrees to independently create and maintain outside of the Tekcloud Services a current backup copy of all Content stored on the Cloud Servers.
F. Software. Tekscape will provide Customer with access to certain software products aspart of the Services. TEKSCAPE MAKE NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING ANY SOFTWARE PRODUCT OR RELATED SUPPORT SERVICES THAT TEKSCAPE MAY PROVIDE AND, AS BETWEEN YOU AND TEKSCAPE, SUCH PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.” Customer is not granted any title or intellectual property rights in or to any software provided as part of the Services, and Customer may only use that software in connection with the Services as permitted under this Agreement. Customer’s acceptance or use of software provided as part of the Tekcloud Services is deemed to be an acceptance by Customer of the license or other agreement that governs the use of that software. Customer shall not (i) copy any software; (ii) remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software or appear during its use; or (iii) reverse engineer, decompile or disassemble any software. Customer shall obtain all consents and licenses required for both parties to legally access and use all software that Customer places on the Cloud Servers without infringing any ownership or intellectual property rights. Upon Tekscape’s request, Customer shall provide reasonable proof to Tekscape that Customer has obtained such consents and licenses. Tekscape will be relieved of any obligations under this Agreement that are adversely affected by Customer’s failure to obtain any required consents or licenses, or to promptly furnish reasonable evidence Customer has obtained those consents or licenses.
G. IP Addresses. Any public or private IP address allocated for Customer to use as a part of the Tekcloud Services will remain allocated to Customer until: (i) Customer release the IP address using the Tekcloud Services portal; (ii) Customer’s Tekcloud Services are terminated for any reason; or (iii) Tekscape decides to change any IP address, which Tekscape may do at any time and in its sole discretion by providing Customer with five (5) days’ prior notice of the change. Upon termination of thisAgreement, Customer may no longer use any IP addresses or address blocks that Tekscape provided forCustomer’s use in connection with the Tekcloud Services.
H. Representations. Customer represents and warrants to Tekscape that: (i) the informationCustomer provides in connection with your registration for Tekcloud Services is accurate and complete; (ii) no Content on the Cloud Servers is illegal, defamatory, malicious, harmful, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) Customer accurately and adequately disclosed how Customer collects and treats data collected from visitors to any website or users of any Application on the Cloud Servers; (iv) Customer’s use of the Tekcloud Services will comply with all applicable laws, rules and regulations; (v) Customer will not attempt to circumvent or disable any of the security-related, management, or administrative features of the Tekcloud Services; and (vi)Customer has obtained all consents and licenses required for Tekscape to legally access and use all software Customer placed on the Cloud Servers without infringing any ownership or intellectual property rights.