Master Service Agreement
NGX Tech Solutions, LLC. (“NGX” or “the Company”) shall provide, and the Customer (“Customer”) shall pay for, the Service indicated on the attached Service Order in accordance with the following Terms and Conditions contained herein. By Customer signature of a Service Order and this Agreement with its respective Terms and Conditions, Customer is entering into a legally binding Agreement for Service with NGX.
1. CONFIDENTIALITY. During the term of this Agreement each Party may be exposed to or receive information from the other which is proprietary and/or confidential to the other party (a “Disclosing Party”). Any and all such information in any context and/or form obtained by the Receiving Party, its employees, contractors, agents or related third parties; for during and in the provision and/or use of the Services, equipment, or the satisfaction of such party’s obligations under this Agreement, without limitation; including the financial terms of this Agreement, any Quotation for Service; Service Order, product, drawing, network, design map, business information, financial information, trade secrets, know-how and information regarding processes, shall be deemed to be the confidential and proprietary information (“Confidential Information”) of the Disclosing Party. The Receiving Party shall: (i) hold all of Disclosing Party’s Confidential Information in strict confidence; (ii) disclose Disclosing Party’s Confidential Information only to employees and/or contractors who have a need to know such Confidential Information and who are obligated to hold such Confidential Information in strict confidence; and (iii) not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose such Confidential Information to third parties, or to use such information. Upon termination of this Agreement all Confidential Information shall be returned to the Disclosing Party or shall be immediately destroyed by the Receiving Party and Receiving Party shall provide proof of destruction to the Disclosing Party.
2. EFFECTIVE DATE & TERMS. This Agreement shall become effective on the date that Customer’s signed Service Order is accepted by “NGX”. Unless otherwise agreed to in writing by “NGX”, all service shall be provided for a minimum service term, as indicated on pages of the Service Order. Such term shall commence on the date upon which the Service is made available for use by Customer even if Customer does not use the Service and shall continue until the expiration of the term or until this Agreement is otherwise terminated as set forth herein, whichever comes first. Upon Service Order expiration, the Service Order shall automatically renew in one (1) year intervals until and/or unless either party gives the other thirty (30) days prior written notice of its intent not to renew this Agreement. In the case of an upgrade placed by Customer for and to an existing circuit(s) related to a specific Service Order Form, Customer acknowledges that Customer may incur a 30 day overlap of billing to ensure continuity and operability of service. Further if such billing overlap does exist Customer affirms and agrees that they shall make full payment to “NGX” for any service overlap.
a) AVAILABILITY & SERVICE DELIVERY. (i) Availability. The Services and equipment are offered subject to the availability of the necessary facilities, power, services, and equipment, and subject to the provisions of this Agreement. “NGX” shall not be responsible or liable in any manner for delay in installing or providing Service or equipment ordered by Customer. Customer agrees that they meet all requirements and considerations to undertake and use of “NGX” Services.
(ii) Service Delivery. “NGX” will notify Customer of the Service Date (Service Availability Date) which is the date when the Service has been successfully installed or provisioned and is available for Customer’s use with such installation performed either by “NGX” or by Customer. When “NGX” makes the Service available to Customer, but Customer is not ready to accept Service delivery or use of the Service, such billing shall commence on the Service Date as Customer’s Service is provisioned and available for use. Failure by Customer to use the Service commencing on the Service Date shall be deemed as an automatic acceptance of Service even if the Service is not used by Customer. Unless provided however Customer has provided prior written notification to “NGX” before commencement of the Service Date.
(iii) “NGX” makes no representation regarding the speed of any Internet or web-based service. Actual speeds may vary and are not guaranteed. Multiple factors and considerations affect speed including, without limitation; the number of workstations, terminal device(s) and other forms of hardware using a single connection to access the internet or wireless connections. “NGX” makes no representation, guarantee or warranty of any kind or nature regarding the suitability of “NGX”Services for any use other than for data, VoIP, and Internet access as intended and defined in the Service Order and the “NGX” Acceptable Use Policy. Customer hereby agrees and acknowledges that Customer does not have rights and ownership interest in any “NGX” obtained IP Addresses, and upon termination of the Agreement, Customer agrees that all rights to access and right to use such IP Addresses shall terminate immediately. Additionally, Customer shall use all IP addresses associated with Customer’s account under all guidelines of the “NGX” Acceptable Use Policy. If Customer is not in compliance with such use related to IP addresses, “NGX” has the sole right to halt, suspend and/or terminate Customer’s use of such IP address(es). Additionally, “NGX” shall have the right to change, reposition and/or modify any Customer IP address as any time and in any manner.
b) LOCAL NUMBER PORTABILITY (LNP). The process of porting numbers must be scheduled in advance in order to provide continuity of service when switching between providers. ”NGX” will coordinate with Customer on the timing of the port based on circuit and equipment availability. In the event that Customer’s site/service location is not ready for porting outside the connection and equipment provided by “NGX”, there may be charges incurred if porting is cancelled or supplemental before the number port occurs. A charge of $10 Non-Recurring Charge (NRC) per telephone number may be incurred if the port is canceled or supplemental more than 48 hours before the Confirmed Port Date. A charge of $75 Non-Recurring Charge per telephone number may be incurred if the port is cancelled or supplemental within 48 hours before the Confirmed Port Date. A Reinstatement/Snap-Back charge of $400 per telephone number may be incurred if the port is cancelled within 24 hours of the Confirmed Port Date.
c). USE OF SERVICE. “NGX” Services provided to Customer may only be used in accordance with all applicable laws, statutes, regulations and rules, and in accordance with; (i) normal acceptable business use, (ii) in accordance and compliance with city, county, state and Federal laws; and, (iii) Services are not to be used for any illegal purpose and such lawful and acceptable use is to binding on Customer. Transmission, promulgation, theft, procurement of, communication, alteration, publication or storage of any information, protected material/property, data or material in violation of any United States Federal, state or local law, statute, regulation or rule is strictly prohibited. The aforementioned includes, but is not limited to, any material, data, matter, software or software code, or intellectual property protected by copyright, trademark, privacy or other proprietary, personal or property right, trade secret, or any other statute.
(i). Customer is solely responsible for the adherence to any and all laws, statutes, rules and regulations pertaining to: (a) Customer’s use of the Services, (b) the use of any networks connected to the “NGX” Services, and, (c) the communications means by which Customer connects their router, PC, terminal or any other equipment to use and access the “NGX” Services. Customer is responsible for managing all the activity occurring through use of the Voice service, including the activity of its End Users, employees, independent contractors, affiliates, third parties and agents. At all times Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, international communications and the transmission of technical or personal data.
(ii) It is unlawful and a violation of this Agreement to communicate, transmit, or promulgate in any matter, means or medium, any threatening, harassing, or obscene material, and communication of any sort, or, to otherwise use of the Services for any illegal, unlawful purpose and/or to violate any stipulations as specified in the “NGX” Acceptable Use Policy (“AUP”). “NGX” will have full rights to undertake any steps as prescribed herein this Agreement without limitation suspension or cancellation of use of Customer’s Service in the event Customer is in violation of the then current AUP. Suspension or termination of Service by “NGX” shall not relieve Customer of any outstanding payments, or termination charges which may be imposed by “NGX”.
3. BEST EFFORT SERVICES. Not all Services have a Service Level Agreement (“SLA”). SLA’s provide guarantees of uptime and throughput on connections provided by “NGX”. An example of a product that may come with an SLA would be a Managed Internet Service (“MIS”) circuit or Dedicated Internet Service (“DIA”) all other services or connections do not come with an SLA and therefore are Best Effort products. Speed and connectivity are based on network availability and can be influenced by weather and/or network congestion. “NGX” is not liable for the consistency or availability of Best Effort products that do not have an SLA.
a) “NGX” is not responsible for any Service interruption, delay, degradation, transmission error, operational failure, or unavailability at any location when “NGX” is not providing Customer Service to the Internet. “NGX” is not responsible for any Service related issue experienced by Customer and Customer shall not be entitled to any Service Credits as defined in Agreement any other remedy, including, without limitation, Customer’s right to terminate and/or cancel the Service in this instance.
b) “NGX” shall at its sole discretion agree to make commercially reasonable efforts to work with Customer to try to identify, address, and resolve any Service issue and support Customer in dealing with their Internet Service Provider. However, “NGX” is not able to guarantee the restoration of Service or resolve this issue on behalf of Customer in the event “NGX” is not providing Internet Services and Customer will not be relieved of its payment obligations to “NGX” in the event the Service issue is related to loss of connectivity with Customer’s Internet Service Provider.
4. FINANCIAL TERMS: SERVICE & RATES, BILLING & PAYMENT TERMS AND ADDITIONAL CHARGES. The fees for service can be set forth on the attached Service Order, Quote and/or additionally in this Agreement.
a) SERVICE & RATES. Initial rates for the Services are set forth on the pages of the Service Order, Quote or in any separate pricing forms furnished to Customer, except where otherwise required by applicable law or the provisions of this Agreement applicable to Services and/or term plans. “NGX” may revise the rates for service from time to time, without prior notice, to reflect changes in regulatory imposed fees, the cost to provide service, service charges and tariffs or otherwise. “NGX” reserves the right to move Customer to a different service or rate plan if usage or other criteria are not met for the plan to which Customer has subscribed or in which Customer currently is enrolled. Tariff rates may be applied depending on the carrier purchased for automatic renewals.
b) INVOICE DELIVERY. Unless otherwise agreed to in writing all invoices shall be delivered electronically to the email address on file designated by Customer’s primary contact of Customer’s Account. Customer agrees that it is their obligation to at all times keep current all account information as accurate and correct. Customer agrees that invoices that may be sent to incorrect, obsolete, old and/or non-updated email address do not relieve Customer from its payment obligation to “NGX”.
c) INVOICE FREQUENCY & PAYMENT. Unless otherwise specified, Services are provided and invoices are issued on a monthly basis for all Monthly Recurring Charges (“MRC”) actual usage of Service. In the case of a partial month’s Service, the initial invoice shall include any pro-rated charges for the current month and the first full month of service. Any additional usage for the preceding month shall be billed in arrears on the following month’s invoice. For all monthly invoices payment is due on the date set forth on the invoice as the due date. And if no such date is identified, the invoice is payable no later than fifteen (15) days from the date of the invoice. Any amount not paid within twenty-five (25) days after the invoice date shall bear interest commencing on the invoice date and continuing through the date payment is received, at a rate equal to the lesser of 1.5% per month or the highest rate permitted by law. In addition, invoices not paid by the twenty-fifth (25th) day from the invoice date will not be eligible for any quoted volume or term discounts. Customer is responsible for paying the entire amount billed on the invoice, including reasonable disputed charges, whether or not documented in writing to “NGX”. Any dispute resolved in Customer’s favor shall be credited next bill.
(i) In the event Customer has not provided payment to “NGX” within 45 days from date of invoice, “NGX” in its sole discretion has the right to disconnect Customer for non-payment. Prior to disconnection of Customer account, “NGX” will attempt to collect the balance due and owed by Customer by: (a). sending no less than two (2) emails to Customer’s email address on file, (b). placing two (2) phone calls to Customer at the then current Customer number on file. (3) "NGX" reserves the right to charge a $25.00 reconnect fee for reinstatement of suspended services due to unpaid invoices.
d) INSTALLATION, EQUIPMENT AND ONE TIME FEES. Any set-up, installation, or equipment charges and subscription fees shall be paid in advance prior to and/or at the time of or delivery of equipment or service or invoiced to Customer by “NGX” on Customer’s first invoice in either manner or form in the sole discretion of “NGX”.
e) BILLING ERRORS. “NGX” obligation with respect to any errors resulting in Customer overpayment for Service and/or equipment is limited to granting invoice credits equivalent to the dollar amount(s) of the overpayment. Under no circumstances will any billing error affect Customer’s obligation to pay for Services and/or equipment provided by “NGX”.
f) UNBILLED USAGE. At any time and for a period of no more than one hundred twenty (120) days from the date of any given Customer invoice, “NGX” in its sole discretion has the right to charge, and Customer agrees to remit payment for any and/or all charges attributed to Customer account, and also Customer phone numbers and calls which may have been unbilled but used by Customer. This includes but is not limited to actual usage, switched access charges, data charges, third party telecommunications providers or underlying carrier charges or taxes.
g) THIRD PARTY CHARGES. Customer may incur charges from third party services that are separate and apart from the amounts charged by “NGX”. These may include, without limitation: Over the Top (OTT) charges, switched access fees from underlying carriers, soft phone fees, additional calling devices or plans which Customer may elect to use in connection with the Services offered by “NGX”, and/or calls resulting from Customer purchasing or subscribing to other offerings with other service providers via their Internet Connection. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole liability and responsibility.
h) TAXES. Federal, state, local, county, municipal, and other government or regulatory agencies may assess taxes, including, without limitation, excise, franchise, sales, value-added and/or use tax, and real property taxes, surcharges or fees (“Taxes”) on Customer’s purchase, and use of Services, or equipment. “NGX” shall invoice Customer accordingly, by jurisdiction for any and all applicable taxes. Tax rates may change from time to time, with or without notice to Customer and Customer is responsible for the payment of all applicable Taxes in force and effect on Customer’s monthly invoice of taxes; which may be enacted and/or new in the future. Taxes are in addition to the charges paid for the Service and equipment. If and when Customer may be exempt from any or all Taxes; Customer must provide “NGX” with an original, valid exemption certificate that demonstrates Customer’s tax-exempt status. Any Customer tax exemption(s) shall only be applicable from, and after, the date that “NGX” receives and accepts Customer exemption certificate. The imposition of, or increase in, any taxes shall not constitute a Service rate increase and therefore shall not give Customer a right to terminate this Agreement or any Service Order.
i) FEES. In addition to any taxes imposed by governments or regulatory agencies, “NGX” reserves the right, at any time to charge or increase various fees (“Fees”), including, without limitation: E911 service fees, Service activation fees, Universal Service, Regulatory Recovery, and/or Cost Recovery Fees which may be considered as fees which recover costs associated with complying with Federal, State Public Service, or Public Utility Commission programs. These fees are subject to change at any time, without notice to Customer. The imposition of, or increase in, any fees shall not constitute a Service rate increase and therefore shall not give Customer a right to terminate this Agreement or any Service Order.
j) PROFESSIONAL SERVICE & TECHNICAL SUPPORT FEES. Service calls shall be invoiced and are payable upon receipt of invoice. Service calls are assessed at $100.00 per hour and commence from the time phone support is engaged until the time the issue has been resolved. If the issue related to the service call is the fault of “NGX”, Customer will not be charged. If the issue related to the service call is the fault of Customer, Customer will be charged. In the case the issue which caused the service call is not determined as to which party caused the event, until the issue has been identified and remedied the party once identified will be the responsible party to incur the cost of the service call. In its sole discretion, “NGX”may elect to either repair or replace any affected equipment.
k) SALES AND SERVICE CREDITS. Customer’s sole and exclusive remedy to any form of requested refund shall be in the form of Service Credits. If “NGX” determines that Customer is entitled to receive Service Credit(s), the Service Credit shall apply to and appear on the following month’s invoice, and the Service Credit shall be deducted from the monthly invoice balance.
5. FRAUD. Customer is responsible for all charges which may be attributable to Customer Account with respect to the Services related to fraudulent use of Service, even if incurred as the result of fraudulent or unauthorized use of the Services. Customer agrees to notify “NGX” immediately if it becomes aware of any fraudulent or unauthorized use of any Service. “NGX” may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. “NGX” reserves the right to restrict, suspend, halt, modify and/or discontinue providing any and/or all Service(s) to Customer in the event of suspected or actual fraudulent or unauthorized use by Customer. “NGX” shall not be liable to Customer in any manner for any damages whatsoever resulting from fraudulent or unauthorized use of any Service in the event “NGX” exercises the right to restrict Customer’s use of Service.
6. CONNECTIVITY. Customer is responsible for ensuring that any equipment at Customer’s premises connected to the Service, regardless of whether such equipment is provided by Customer or “NGX”, is fully protected and therefore protected from any potential and/or actual fraudulent or unauthorized access and use.
7. LIMITATIONS OF SERVICE AND EQUIPMENT. Customer may not be able to utilize the Service or equipment, if: (i) Customer equipment fails, (ii) the power required to operate Customer’s routers, modems, or any other equipment fails, (iii) Customer’s computer systems and network infrastructure experiences hardware or software problems and/or viruses, (iv) in situations where “NGX” is not the internet service provider and Customer’s internet service provider fails to provide adequate services for any reason, (v) Customer’s hardware or software is improperly installed, or, (vi) Customer is blocked or otherwise unable to access “NGX” network infrastructure. By using “NGX” Service and equipment, Customer agrees that the Service, equipment, and/or both may be limited in certain instances and may not be available 100% of the time. “NGX” will not be liable for errors in transmission or for failure to establish connections. Additionally, Customer acknowledges and agrees that the Service, equipment and/or both may not be compatible with Customer firewalls or PBX Systems.
8. CUSTOMER RESPONSIBILITY. Customer is responsible for all internal wiring, Customer Provided/Owned equipment, installation of hardware and software on Customer’s equipment, and arrangement of access rights for “NGX” including space for cables, and equipment as necessary for “NGX” authorized personnel to install, repair, inspect, maintain, replace, or remove any and all equipment provided by “NGX”. Upon request by “NGX”, Customer, in good faith with its landlord, property manager, and/or building owner, and “NGX” or its affiliates, to secure written building access approval if and as required. Customer shall provide a secured space with electrical power, climate control, and protection against fire, vandalism, and other casualty for equipment as applicable. Customer is responsible for ensuring that Customer equipment is compatible with the Service and the “NGX” network in the event “NGX” does not provide equipment to Customer. Additionally, Customer shall ensure that upon access approval Customer permits the installation upon the premises location occupied by Customer of all equipment necessary to provide Service pursuant to this Agreement. Customer shall indemnify and hold “NGX” and its affiliates harmless from any claims of loss or damage to the premises by any third party, which claims are related in any way to “NGX” installation of equipment and provision of service.
9. EQUIPMENT. The parties agree that any and all “NGX” equipment deployed to Customer’s service locations will remain the property of “NGX”. Customer shall not permit others to rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any equipment without the prior written consent of “NGX”. The equipment shall not be used for any purpose other than that for which “NGX” provides it. Customer agrees (which agreement shall survive the expiration or termination of these Terms and Conditions) to allow “NGX” full and complete access to remove its equipment from the property. “NGX” may arrange to ship products or equipment to Customer. Title and risk of loss pass to Customer when “NGX” designated shipper delivers products to the address Customer specifies. Customer must notify “NGX” of damaged or missing items from Customer’s order within three (3) days after Customer receives product.
10. SERVICE MINIMUM. As certain considerations and discounts were extended based on the service term, as indicated on the pages of the Service Order or Quote, Customer must maintain all service quantities unless changes are agreed upon by both parties.
11. CANCELLATION/TERMINATION BY CUSTOMER. Cancellation/Termination by Customer requires sixty (60) days advance written notification to “NGX” along with Customer’s requested date of cancellation and shall be valid when accepted by “NGX”. Billing will cease thirty (30) days after the requested disconnected date. Customer termination will not relieve Customer of any due, payable, and owed charges to “NGX” or any charges which may be owed as a termination fee for the remainder of the Service Order or Quote term for the actual Services, equipment or both ordered by Customer. Customer shall pay “NGX” all charges for service provided through the effective date of such termination, plus 100% of the balance of the term’s Monthly Recurring Charges (MRC). It is agreed that “NGX” damages, if services were terminated prior to the expiration of the Agreement Term, would be difficult or impossible to ascertain. Accordingly, the terms of this paragraph are intended as liquidated damages and not as a penalty in the event of early termination. Termination of service shall not relieve Customer of its obligation to pay all fees for service accrued and owing up to and including the date of termination or any other amount payable to “NGX”.
12. CUSTOMER DEFAULT, DISCONNECTION, OR, SUSPENSION OF SERVICES AND/OR TERMINATION. “NGX” at its sole discretion may suspend, restrict, cancel, or terminate its relationship with Customer, or may take any of the aforementioned actions related to Customer’s use of the Services in general, at any time and immediately if, including but not limited to: (a) does not make full payment of all invoiced charges by the due date and fails to meet its payment obligations. Any amounts which are not paid within forty-five (45) days of the date of the applicable invoice and consequently, Customer shall forfeit all telephone numbers associated with the account, (b) Customer violates any clause, term, condition, or article as stated in this Agreement and/or violates the “NGX” Acceptable Use Policy, (c) due to a change in any applicable law, or change in and/or by any of “NGX” underlying carriers and other Service providers and/or partners, (d) Customer resells the Services, (e) Customer’s use violates any trade and economic sanctions, regulatory or governing policy imposed by a U.S. State or U.S. governing agency and/or Internationally, (f) if “NGX” decides to cease offering the Services to Customer in Customer’s jurisdiction, (g) if “NGX” is ordered by any law enforcement or other government agencies to suspend or terminate Service to Customer’s Account, (h) except to the extent prohibited by applicable Law, Customer files a petition for bankruptcy or if a petition for bankruptcy is filed against Customer and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Customer’s relevant property, (i) Customer brings any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against “NGX”, its affiliated third parties and/or participates in any class action lawsuit against “NGX”, (j) “NGX” determines that the action of required to improve, maintain, preserve, or improve the delivery of Services to prevent misuse, fraud or misappropriation, or to preserve the integrity of “NGX” in general, its agents, affiliates, related third parties or its customers; and, (k) “NGX” shall not be liable to Customer in any manner or any third party for any reason when taking actions to halt, cease, modify, suspend, restrict and/or terminate Customer’s Service, (l) if Customer is found to have breached the Confidentially Clause as stated in this Agreement, or, (m) any combination of the foregoing thereof. Further at time of termination by “NGX”, Customer shall not be entitled to any refund, or disputed amount if applicable at the time of such action.
a) EFFECT. “NGX” shall effect such suspension, restriction and/or termination by preventing access to Customer Account and Customer will not be able to access any of “NGX” Services upon termination of Customer’s relationship with “NGX” or if Customer effectuates cancellation of this Agreement not defined in the prescribed manner. Further, all rights to use “NGX” equipment and the Services shall immediately terminate, and Customer agrees to immediately cease any and all use of the Services.
b) CUSTOMER DEFAULT. “NGX” reserves the right to declare Customer in default in any instance specified above; causing the remainder of payments under this Agreement as a valid termination fee and “NGX” may also charge Customer additional fees, without limitation: outstanding balances and disconnection fees; which will be immediately due and payable. In the event any and/or all of the aforementioned are not immediately paid to “NGX”, “NGX” has the right to and will seek other remedies available by law. If Customer defaults, Customer is to pay “”NGX” reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under this Agreement. Any act of Customer default accelerates payments to be due immediately.
13. 911/E911. Customer understands that all of “NGX” calling services are Internet based and that the emergency services calling capabilities associated with the Service are different from those offered by traditional providers of local telephone services. “NGX” VoIP calling services are not meant to be relied upon in case of an emergency. Customer should therefore maintain an alternative means of calling emergency services. Customer should not make excessive 911 calls. Excessive calls are classified as making more than three 911 calls per month. Should Customer make excessive 911 calls, there will be additional charges to access the system. “NGX” may change Customer’s E911 monthly recurring charge upon providing Customer with written notification. Additionally, Customer agrees that the “NGX” E911 disclosure shall be incorporated herein.
14. DISPUTES. In the event of any dispute regarding a billing invoice, Customer shall notify “NGX” in writing within fifteen (15) calendar days of the invoice date. Thereafter, said invoice shall be deemed to be correct and binding. Customer shall not seek legal or equitable remedies, including, but not limited to, injunctive relief, which would require “NGX” to continue providing service to Customer. Customers with Toll-Free numbers may be charged a $25 fee per change on each Toll-Free number. This Agreement and any disputes arising out of this Agreement shall be governed by and construed in accordance with the substantive and procedural laws and practices of the State of Arizona, without giving effect to conflicts of law. Any action commenced hereunder, or relating to any relationship between the parties, shall be brought exclusively in a court of competent jurisdiction in the State of Arizona. If a dispute arises and “NGX” refers Customer Account to an attorney for collection, Customer shall pay all costs of investigation, enforcement, and collection, including interest, court costs, fees, and attorney’s fees. Notwithstanding the cancellation or natural expiration of the term of this Agreement, and to the fullest extent permitted by law.
15. CHOICE OF LAW. This Agreement, Service Order Forms and all other documentation as executed by Customer shall be governed by and construed in accordance with the laws of the state of Arizona without giving effect to any conflict of law principles thereof which might require the application of the law of another jurisdiction. Exclusive jurisdiction for litigation of any dispute, controversy, or claim arising out of, in connection with, or in relation to this agreement, or the breach thereof, shall be only in the state or federal courts located in Arizona, Satna Cruz County, and Customer consents to said jurisdiction and venue in the courts of Arizona and waives any objections as to personal jurisdiction with respect thereto. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY THE OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, THE RELATIONSHIP OF THE PARTIES, AND/OR ANY CLAIM OR DAMAGE RELATED THERETO.
16. NON-WAIVER/AMENDMENT. No provision of this agreement shall be deemed waived, amended, or modified by “NGX” unless such a waiver, amendment, or modification is in writing, signed by “NGX”.
17. AUTHORITY. Each party represents that it has the full right, power, and authority to enter into this agreement and to perform all the obligations on its part contemplated herein.
18. VARIANCES. The Terms and Conditions of this Agreement shall prevail notwithstanding any variance with the Terms and Conditions of any order submitted by Customer or the terms of any other Agreement between Customer and “NGX”.
19. SEVERABILITY. If any provision of this agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
20. CONSTRUCTION. The parties acknowledge that they have reviewed, and/or had the opportunity to review, the Agreement with counsel, and have had all of its terms explained to them to their full and complete understanding and satisfaction. They further acknowledge that this Agreement is the joint work product of the parties. Accordingly, in the event of ambiguities in this Agreement, no inferences shall be drawn against either party on the basis of authorship of this Agreement.
21. HEADINGS. The headings in this agreement are for convenience of reference and shall not affect its construction or interpretation.
22. Limited Warranty.
a) LIMITED WARRANTY. With respect to the “NGX” provided equipment only described herein this agreement that “NGX” provides to customer as specified on the service order form; “NGX” warrants that at its sole discretion it will either repair or replace any defective equipment but only during the term of this agreement and the applicable service order in the sole discretion of “NGX”, its sole cost and expense, provided that notice of such defect is given to “NGX” no later than 24 hours after the occurrence and provided further that such defect does not arise from the abuse, misuse, or neglect of customer, or from damage or loss occurring because of theft, fire, wind, lightening, improper grounding, or other hazard.
b) DISCLAIMER OF WARRANTIES. No warranty is made by “NGX” regarding information, service or product provided through, in connection with, the services and all services are provided “as is” and “as available”. Customer and any customer users use of the equipment and the service is at customer’s own risk. Without limiting the foregoing, “NGX” hereby expressly disclaims any and all warranties other than those specifically set forth above, including without limitation: (i) any warranties as to the availability, accuracy, or content of information, products, or services; (ii) any warranty of merchantability and use; and (iii) any warranty of fitness for a particular purpose (iv) or function and non-infringement, whether express or implied. “NGX” makes no warranty that the service or equipment will operate uninterrupted or error free. “NGX” does not warrant that any service will be available on a specified date or time or that the network will have the capacity to meet the demand of customer or any users during specific hours.
c). LIMITATION OF LIABILITY. “NGX”, its employees, authorized agents, approved affiliates, content providers, and their respective shareholders shall not be liable for any damages arising out of any mistake, interruption, omission, delay, error, or defect which occurs in the course of installing, providing, maintaining, or modifying service, equipment, or both by “NGX”, and general damages shall in no event exceed an amount equivalent to no more than one month dollar value of monthly recurring service fees only to customer for the time period during which the fault(s) occurred only if in the event customer experiences a loss of service due to “NGX” willful fault, negligence, act, error, or omission, or “NGX” will provide customer with a credit on a pro-rata basis for the period of time that the service was unavailable to customer. In order to receive a credit, customer must provide a written notification. (i) “NGX” is not and will not be liable for any intentional act or omission, customer negligence or: (1) acts of any third party company or independent contractor that offers products and services through the service or in conjunction with the service, (2) any act or omission of any other telecommunications provider or service provider other than that of “NGX”, (3) incorrect or incomplete directory listings, (4) incomplete or failed voice, text or email messages or dropped calls, (5) any software or program that is downloaded to customer equipment, or when customer downloads software to equipment or when customer installs any products to equipment (6) any use of the service & equipment regardless of whether it is authorized use or not, (7) any form of repair or installation of “NGX” equipment, devices or products by any third party who are not our associated third parties or agents without the proper service order or a formal request made by customer to “NGX” to make any repair, (8) customer or any third party may have changed, altered, tampered or modified with the services or equipment, (9) any health claim which are alleged to arise from the use of the equipment or our services or our products including but not limited to slip and falls, car accidents or any other type of accidents while using our products and services, (10) any disruption, failure or interruption of emergency services such as 911 or e911 or the accuracy and identification of phone number, address or proper name assigned or associated with any person or individual attempting to access or accessing emergency services from your device, and (11) liability for any injury or death arising out of the failure to reach 911 or emergency services professionals or misdirected or improperly routed or misrouted 911 call, regardless if the call was routed by a public safety answering point (psap) or an official emergency dispacther or operator, is not the fault or liability of “NGX”, its network providers, partners, and its operating companies or affiliates and (12) customer affirms, acknowledges and agrees that customer will hold “NGX”, its network providers, partners, and its operating companies or affiliates harmless from any and/or all damages or liabilities, and these limitations apply to all alleged or actual claims regardless of if they are based on breach of contract, product liability, tort, breach of warranty and/or any other type of liability. Including without limitation any liability for damages caused or allegedly caused by any failure of performance, error, omission, hacking of any kind to networks, systems, ippbx, pbx, phone systems, any other customer system or interruption, electrical surge/damage/interference, improper grounding, deletion of data, defect, delay in operation or transmission, communications line failure, communications line failure and/or connection failure.
d) INDEMNIFICATION. Customer shall, at its sole expense, indemnify, defend and hold harmless “NGX”, its officers, directors, employees, agents, contractors, third party affiliates and agents, from and against any and all Claims arising from, relating to or as a result of: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any User of the Service or equipment, (ii) any breach by Customer of any term or condition of any Service being used, or this Agreement, (iii) any claim by any employee or invited party of Customer other than a claim based on the gross negligence or willful misconduct of “NGX”, (iv) any claim by any Customer or any other third party relating to, arising from or as a result of Customer’s use of the Service and equipment, or (v) violation of any law or regulation by Customer, Customer’s employee, contractor, or agent, or related either directly or indirectly third party on behalf of Customer.
23. ACTION. No action against either party arising out of this Agreement may be brought by the other party more than one hundred and eighty days (180) after the cause of action has first arisen.
24. NO ASSIGNMENT. This Agreement may not be assigned by Customer, in whole or in part, without the prior written consent of “NGX”, and any assignment in violation of this section shall be void. Any attempted assignment or actual assignment without “NGX” consent shall be void and shall legally permit “NGX” to immediately terminate this Agreement without notice to Customer whereby all fees, charges, and applicable termination fees will be due immediately to “NGX”. “NGX” may assign this Agreement and the full Customer Account at any time to any entity without notification to Customer.
25. RELEASE. Customer agrees to release, discharge, and hold harmless “NGX” from and against any and all liability relating to or arising from their acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Law or any Legal Process.
26. INDEPENDENT AGENCY. Neither Party has the right of authority to act on behalf of the other except as expressly provided herein this Agreement. Merchant shall conduct its business as its own initiative, responsibility and expense. The relationship created by this Agreement shall be that of independent contractor and nothing shall imply, and there shall be no relationship of partner, partnership, equity partner, employee or employer.
27. NO WAIVER. A waiver of any term or condition of this Agreement by “NGX” must be in writing and signed by an officer of “NGX”. No single waiver of a term or condition shall be deemed a continuing waiver of the term or condition. Any failure to insist upon strict compliance with any of the terms or conditions of this Agreement shall not be deemed a waiver of any other term or condition herein this Agreement and/or any other term or condition in the Acceptable Use Policy, E911 disclosure and/or any other program and policy documents which govern the use of the Service.
28. FORCE MAJEURE. “NGX” will not be liable for any failure or delay in performance of its obligations under this Agreement to the extent the failure or delay: (a) is caused, without fault of “NGX”, by fire, flood, earthquake, elements of nature or acts of God, acts of war, riots, civil disorders, rebellions or revolutions, quarantines, embargoes and other similar governmental action, or any other similar cause beyond the reasonable control of “NGX”, and (b) could not have been prevented by reasonable precautions and cannot reasonably be circumvented by “NGX” through the use of alternative sources, work-around plans, or other means. “NGX” shall be excused from its non-performance of affected obligations only for so long as the circumstances prevail and “NGX” continues to attempt to recommence performance whenever and to whatever extent possible without delay.
29. ENTIRE AGREEMENT & SEVERABILITY. This Agreement, its respective Terms and Conditions and additional documents executed by Customer Annexes constitute the entire contract of the Parties hereto and supersede any prior agreement between the Parties. Should a provision of this Agreement be determined by an arbitrator or any court of competent jurisdiction to be illegal, invalid or unenforceable, or should this Agreement contain an omission, then the legal effect of the rest of the Agreement shall not thereby be affected. Instead of the invalid provision a valid provision is deemed to have been agreed upon which comes closest to what the Parties intended; the same applies in the case of an omission.