TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service are incorporated into, and constitute an essential part of, the Services Agreement (the “Agreement”) between Customer and NETWORK SERVICES. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Agreement. NETWORK SERVICES and Customer may be referred to herein individually as a “Party” and collectively as the “Parties.”
1. Regulation. At any time, NETWORK SERVICES may increase rates and prices to reflect any rate or price increases imposed on NETWORK SERVICES by any of its underlying service providers. Additionally, the rates and prices set forth in the Agreement are subject to change immediately upon the imposition of new regulations, modifications of existing regulations, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance on or as a result of the same ("Regulatory Change"). NETWORK SERVICES reserves the right, at any time and without liability, to: (i) pass through to Customer all, or a portion of , any charges,- or surcharges directly or indirectly related to such Regulatory Change,-; (ii) modify the Service(s), rates (including any rate guarantees), promotions, terms and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Change materially and adversely impairs the provision of any or all Services under the Agreement, as determined by NETWORK SERVICES in its sole discretion, terminate the Agreement and/or any affected Service and related SOF.
2. Tariffs. "Tariffs" shall refer to NETWORK SERVICES’ applicable tariffs. The Agreement incorporates by reference the terms of each such Tariff to the extent Customer subscribes to Services provided by NETWORK SERVICES which are covered by any applicable Tariff. The Agreement may be superseded by a Tariff filed with the appropriate regulatory agency, which Tariff may contain such modifications of the provisions of the Agreement as NETWORK SERVICES deems appropriate. NETWORK SERVICES may modify its Tariffs from time to time in accordance with law and thereby affect Services furnished to Customer hereunder, except that the terms and conditions of the Agreement shall supplement, to the extent not inconsistent, Tariff terms and conditions. If any of NETWORK SERVICES’ applicable Tariffs are cancelled during the Term of the Agreement, such cancelled Tariff(s) will be deemed to be incorporated by reference into the Agreement on the effective date of cancellation, as supplemented by any non-inconsistent product descriptions, definitions, prices and other terms and conditions contained in any price guide (“Price Guide”) or similar document posted by NETWORK SERVICES on an NETWORK SERVICES website accessible by Customer, such as www.[insert NETWORK SERVICES DOMAIN NAME].com/tariff, and may be modified by NETWORK SERVICES from time to time and thereby affect the previously tariffed Service furnished to Customer.
3. Billing Disputes. Only disputes made in good faith, in a timely manner and properly documented as required herein, as determined by NETWORK SERVICES in its sole discretion, will be considered by NETWORK SERVICES. To meet these requirements, Customer must provide NETWORK SERVICES with written notice of any disputed charge(s) within thirty (30) days of the original Due Date for such charges. Along with such notice, Customer shall set forth in detail all grounds for disputing each charge and provide all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. NETWORK SERVICES and Customer shall attempt in good faith promptly to resolve any dispute within thirty (30) days of NETWORK SERVICES’ receipt of notice of that dispute. If a dispute is not resolved, NETWORK SERVICES shall have the right to determine in good faith the merit of each dispute and Customer’s associated payment obligation. If NETWORK SERVICES determines that any amount withheld in dispute is owed, Customer shall pay that amount within ten (10) days of its receipt of written notice from NETWORK SERVICES of such determination, plus interest at the lower of 1.5% per month or the maximum rate permissible under applicable state law, calculated from the Due Date until the date payment is received by NETWORK SERVICES. Failure to pay such amount in full within such ten (10) day period shall be a breach hereof and shall entitle NETWORK SERVICES, in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If NETWORK SERVICES determines that any amount withheld in dispute is not owed, NETWORK SERVICES shall issue a credit for that amount on the first invoice issued by NETWORK SERVICES for a full billing cycle after NETWORK SERVICES’ determination is made. Customer’s exclusive remedy for issues relating, whether directly or indirectly, to any disputes shall be in the forum and pursuant to the laws as set forth in Section 21 hereof.
4. Reinstatement. Service will only be reinstated once all outstanding bills have been paid in full and any other cause for suspension or disconnection has been remedied in full. A reinstatement fee equal to 3 months of service will be charged to reestablish Service that has been suspended or disconnected. Notwithstanding the foregoing, Customer understands and agrees with respect to Service that has been suspended or disconnected that: (a) Customer is responsible for payment of all applicable Early Termination Charges for such Service; (b) NETWORK SERVICES may, in its sole discretion, impose new deposit requirements, connection fees and minimum term commitments for the reinstatement of the Service; and (c) reinstatement may take approximately 45 days to occur.
5. Service Interruption. In the event Customer experiences any interruption in its Service that it believes to be material, Customer shall immediately notify NETWORK SERVICES’ Network Operations Center at (800) 726-2575 and request that NETWORK SERVICES open a trouble ticket to investigate. Before notifying NETWORK SERVICES, Customer shall ascertain that the interruption is not within Customer's control (e.g. Customer equipment, wiring, networking, etc.) and Customer shall be liable to reimburse NETWORK SERVICES for all costs incurred by NETWORK SERVICES in connection with an interruption that was within Customer’s control. Customer shall retain each trouble ticket number opened on its behalf. Notwithstanding the reporting of an interruption in its Service, Customer shall only be entitled to a credit where NETWORK SERVICES determines that each of the following conditions exist: (i) the interruption or “outage” exists for a period of time of not less than two (2) continuous hours and renders the Service “unavailable” (as defined in the Specification) during that entire time period (and which is not a scheduled outage); (ii) a trouble ticket is opened by the Customer with NETWORK SERVICES within two (2) days of the commencement of the outage; and (iii) a request for credit is made in writing to NETWORK SERVICES within thirty (30) days of the date the trouble ticket was opened. Customer acknowledges that it is reasonable to base Customer’s entitlement to credits on each of the conditions identified above and it is reasonable to limit Customer’s recovery to the outage credit described below (“Outage Credit”). Customer waives all rights to damages or to other relief in the event of an interruption or outage in its Services.
Outage Credit determined by the following formula in the event of an outage: Outage = [(Hours of Outage - 2 hours)/720 Hours] x Monthly charge of Affected Facility
An Outage Credit shall apply to the charges for the total mileage between end terminals of any facility affected by an Outage: provided, however, that if any portion of the affected Facility remains beneficially used or useable by Customer between any intermediate terminals (where Customer has installed drop and insert capability) or end terminals, the Outage Credit shall not apply to that pro-rata portion of the mileage. The length of each Outage shall be calculated in hours and shall include fractional portions thereof. An Outage shall be deemed to have commenced upon verifiable notification thereof by Customer to NETWORK SERVICES, or when indicated by network control information actually known to NETWORK SERVICES network personnel, whichever is earlier. Each Outage shall be deemed to terminate upon restoration of the affected service as evidenced by appropriate network tests by NETWORK SERVICES. NETWORK SERVICES shall give notice to Customer of any scheduled outage as early as is practicable. Outage Credits shall be granted only for Outages resulting from the unavailability of the Facilities provided by NETWORK SERVICES to Customer and shall not be granted if the malfunction of any end-to-end circuit is due to an outage or other defect occurring in the Interconnection Facilities not provided by NETWORK SERVICES or any outage due to customers end equipment. All Outage Credits shall be credited on the next monthly invoice for the affected Facility and the total of all Outage Credits applicable to or accruing in a given month shall not exceed the amount payable by Customer to NETWORK SERVICES for that same month for such Facility. Except as provided in Section 7 below, the Outage Credits described in this Section of the Agreement shall be the sole and exclusive remedy of Customer in the event of any Outage. Notwithstanding any other provision of the Agreement to the contrary, no Outage Credits shall be issued unless Customer requests same in writing no later than forty-five (45) days following the Outage.
6. Credit. Customer’s execution of the Agreement signifies Customer’s acceptance of NETWORK SERVICES’ initial and continuing credit approval procedures and policies as a condition of NETWORK SERVICES providing Services. NETWORK SERVICES reserves the right to withhold initiation of full implementation of Services under the Agreement pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by NETWORK SERVICES including, but not limited to, security for payments due hereunder in the form of a cash deposit via wire transfer, guarantee, irrevocable letter of credit from a financial institution, or other forms of security acceptable to NETWORK SERVICES, in its sole discretion. In instances where Customer is required to provide NETWORK SERVICES with security in the form of a cash deposit, the cash deposit shall bear interest at the rate for telephone security deposits set by the Public Utility/Service Commission in the state where Customer is headquartered. In certain situations, NETWORK SERVICES shall require Customer to pre-pay for all Services provided by NETWORK SERVICES in cash, via wire transfer. Initial prepayment amount for service is one and one-half (1.5) months’ estimated usage. Regardless of initial prepayment amount, it shall be the responsibility of Customer to always maintain sufficient prepayment credit balance to cover weekends and holidays. If Customer expects usage of Service to increase, it must make appropriate adjustments to amount of prepayment. NETWORK SERVICES retains the right to suspend service without notice or liability to Customer if at any time Customer does not have sufficient prepayment credit balance to cover estimated usage at any time. Upon request by NETWORK SERVICES at any time, Customer agrees to provide financial statements or other indications of financial circumstances. As may be determined by NETWORK SERVICES, in its sole discretion at any time, if the financial circumstances or payment history of Customer is, or becomes unacceptable, NETWORK SERVICES may require a new or increased deposit, pre-payment, guarantee or irrevocable letter of credit at NETWORK SERVICES’ discretion, to secure Customer’s payments for the remainder of the Term and such deposit, pre-payment, guarantee or irrevocable letter of credit shall be provided within five (5) days of written request. Failure of Customer to provide the requested security pursuant to the Agreement shall constitute a breach of the Agreement and NETWORK SERVICES may suspend or terminate Services until such time as the required security is received.
7. Remedies. Upon the happening of any Event of Default, the non-defaulting Party, in addition to any other rights it has at law or equity, may: (1) suspend its performance under the Agreement until such default is remedied but only after providing written notice of such suspension to the defaulting Party; or (2) terminate the Agreement for so long as such default remains uncorrected but only after providing written notice of termination to the defaulting Party. If Customer is the defaulting Party, NETWORK SERVICES may collect the total of all charges specified herein throughout the remainder of each Facility’s Minimum Service Term as a single amount, which shall become due and payable upon written notification to the Customer of this election by NETWORK SERVICES. Additionally, if Customer is the defaulting Party NETWORK SERVICES shall have the right to enter Customer’s premises to remove any and all equipment provided to Customer by NETWORK SERVICES.
8. Force Majeure. 8.1 Except as provided in sub-Section 8.2 below, NETWORK SERVICES shall not be liable for any failure of performance hereunder due to causes beyond its reasonable control, including but not limited to acts of God, fire, explosion, vandalism, fiber optic cable cut, storm or other similar catastrophes, any law, order, regulation, direction, action or request of the United States government, or of any other government, including state and local governments having jurisdiction over either of the Parties, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; insurrections; riots; wars; or strikes, lock-outs, work stoppages or other labor difficulties. 8.2 If any such failure of performance on the part of NETWORK SERVICES shall be for: (i) thirty (30) days or less, then the Agreement shall remain in effect but Customer shall be relieved of its obligation to pay for that portion of the Facilities and/or Services affected for the period of such failure of performance; or (ii) more than thirty (30) days, then Customer may terminate the provisions of the Agreement only insofar as they relate to the Facilities and/or Services so affected.
9. Limitation of Liability. IN NO EVENT SHALL NETWORK SERVICES OR ANY AFFILIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES NETWORK SERVICES OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NETWORK SERVICES SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OF THE PROVISION OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS NETWORK SERVICES FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY’S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. CUSTOMER’S REMEDIES FOR CLAIMS UNDER THE AGREEMENT SHALL BE STRICTLY LIMITED TO OUTAGE CREDITS AS DESCRIBED HEREIN.
10. Indemnification. Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and its directors, officers, employees, and agents, successors and assigns (collectively, the “Indemnified Party”) from all claims (each, a “Claim”) by any third party for damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements arising in connection with the Indemnifying Party’s performance of its obligations and duties under the Agreement. The Indemnified Party shall promptly notify the Indemnifying Party of any such Claim.
11. Disclaimer of All Warranties. NETWORK SERVICES SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR THE FACILITIES AND EQUIPMENT FURNISHED PURSUANT TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Equipment. Any equipment provided to Customer by NETWORK SERVICES for use in conjunction with a Facility will be subject to the terms and conditions set forth in the Agreement. NETWORK SERVICES will “drop ship” the equipment to Customer via certified carrier with tracking technology. Customer is responsible to be present for receipt of delivery. Customer must unpack and place the equipment in a secure and environmentally controlled space that is within 50 feet of the LEC demarc. Customer also agrees to provide the analog POTS line that will at all times remain plugged into the provided equipment. The number for the analog line shall be provided to NETWORK SERVICES’ provisioning staff prior to turn up, and the line shall be in good working order on the date and time of the turn up. The cost and maintenance of the analog line is the Customer’s responsibility. If at anytime during the Term a equipment fails and is in need of replacing, NETWORK SERVICES will provide replacement equipment. The equipment failure shall be determined by the NETWORK SERVICES’ NOC working with the customer in conjunction of NETWORK SERVICES’ technical staff. Once determined by NETWORK SERVICES, in its sole discretion, that the equipment is need of replacing, NETWORK SERVICES will ship overnight a replacement equipment to Customer’s site on the next business day if determined by noon CST. If NETWORK SERVICES installs or provides equipment on Customer’s premises for the purpose of enabling NETWORK SERVICES to provide the Facility to Customer, Customer agrees to provide NETWORK SERVICES reasonable access into Customer’s premises for the purpose of installation, demonstration, inspection, maintenance, repair and removal of the equipment, as well as NETWORK SERVICES’ installers with a safe working environment. Additionally, Customer acknowledges that it will have no right, title or interest in any equipment that NETWORK SERVICES installs. NETWORK SERVICES and Customer agree that the equipment will not become a fixture and Customer shall keep the equipment free from all liens, charges and encumbrances. Customer agrees: (1) to use the equipment only for the purpose of receiving Services ordered from NETWORK SERVICES and no other purpose; (2) to prevent any connections to the equipment that are not expressly authorized by NETWORK SERVICES; (3) to prevent tampering, altering or repair of the equipment, or inside wiring, by any person other than NETWORK SERVICES’ authorized personnel; (4) to assume complete responsibility for improper use, damage or loss of such equipment regardless of cause (including damage or loss caused by force majeure events), except to the extent caused by NETWORK SERVICES or its suppliers; and (5) to return the equipment in good condition, ordinary wear and tear resulting from proper use excepted, immediately upon discontinuance of Service. In the event the equipment is not returned in good condition, Customer agrees to pay NETWORK SERVICES the amount set forth in the Agreement for each equipment device.
13. IP Addresses. Customer may request that NETWORK SERVICES obtain IP addresses and assign Internet access space for the benefit of Customer during the Term (subject to availability). NETWORK SERVICES will route IP addresses on NETWORK SERVICES’ Network. Customer hereby agrees and acknowledges that Customer does not have rights and ownership interest in any NETWORK SERVICES 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.
14. No Right To Intellectual Property. The Agreement confers no right to use the name, service marks, trademarks, copyrights, or patents of either Party except as expressly provided herein. Neither Party shall take any action, which would compromise the registered copyrights or service marks of the other.
15. Compliance With Law. In conjunction with the Agreement, each Party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body.
16. Notices. All notices, demands, consents, requests, approvals, Customer name and address changes, billing inquiries and requests, or other communication which either Party is required or desires to give or make upon or to the other Party shall be in writing and will be effective when sent, if hand delivered or faxed (with confirmation of receipt); on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation from the service); or on the date received if sent by United States certified or registered mail, return receipt requested. Such Notices will be sent to the addresses set forth in the Agreement on the signature page, unless either Party changes its address by giving written notice of such changes to the other Party in accordance with the Agreement. Customer acknowledges that rate change notices may be delivered by NETWORK SERVICES to Customer by email or facsimile and shall be deemed to be delivered when received by Customer.
17. No Third Party Beneficiaries. The Agreement is being executed for the sole and exclusive benefit of the Parties hereto and is not for the benefit of any third parties. The execution hereof shall not create any obligations or confer any rights on any person or entity other than the Parties hereto.
18. Obligations of Customer. Customer acknowledges that it is Customer’s sole responsibility to supply immediate notice to NETWORK SERVICES if Customer changes any of its contact information. If at any time Customer’s name or billing information changes from that which is set forth below, Customer shall have five (5) days to inform NETWORK SERVICES of such changes in accordance with the Notice provisions set forth in the Terms/Conditions.
19. Relationship of Parties. Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between NETWORK SERVICES and Customer; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having; the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.
20. Fraudulent Calls. Customer is solely responsible for fraudulent calls or data transmitted utilizing the Services. For a complete description of NETWORK SERVICES’ fraud policy, the terms and conditions of which are incorporated by this reference as if copied herein, please refer to our website at www.myrep.net/fraud.
21. Network Abuse. Customer is prohibited from abusing the networks of NETWORK SERVICES and its underlying carriers. For a complete description of NETWORK SERVICES’ network abuse policy, the terms and conditions of which are incorporated by this reference as if copied herein, please refer to our website at www.myrep.net networkabuse.
22. Underutilization. This Section is only applicable to Customers that agree to a Minimum Monthly or Annual Usage Commitment as set forth in the Agreement. For a complete description of NETWORK SERVICES’ underutilization policy, the terms and conditions of which are incorporated by this reference as if copied herein, please refer to our website at www.myrep.net underutilization.
23. Termination of Services; Moves. 23.1 Customer may terminate the Agreement before expiration of the Term by providing NETWORK SERVICES with written notice at least sixty (60) days in advance. In such event, Customer shall pay NETWORK SERVICES a mandatory early termination charge (the “Early Termination Charge”) equal to the monthly recurring charge and all associated fees and charges of the terminated Service provided by the number of months remaining in the Term. Customer hereby agrees that an Early Termination Charge is reasonable and fairly represents the amount of damages that NETWORK SERVICES will sustain as a result of such early termination. Payment of an Early Termination Charge shall not relieve the Customer of its obligation to pay any charges incurred hereunder prior to the effective date of such termination. Any written notice pursuant to this Section 23.1 must be sent by an authorized representative of Customer in the manner outlined in the T&Cs and must specifically describe the Service to be terminated and the reasons therefor. Customer must also reasonably cooperate with NETWORK SERVICES to identify the specific circuit(s) or Service(s) being terminated, and Customer agrees to email its disconnect notice to “[insert NETWORK SERVICES email address for disconnections]”. Customer understands and agrees that billing will only cease when all information reasonably required by NETWORK SERVICES has been provided. 23.2 Customer will be permitted to move a Service within the same serving wire center. In such event, Customer shall pay a one-time fee equal to specified amount plus all direct and administrative costs incurred by NETWORK SERVICES in connection with the move. Customer understands and agrees that NETWORK SERVICES may modify the rates and fees charged to Customer even if Service is moved within the same serving wire center. NETWORK SERVICES cannot guarantee that Customer may move a Service outside of the same serving wire center. Any request by a Customer to move a Service outside of the same serving wire center will be handled on an individual case basis. NETWORK SERVICES’ inability to honor a move will not relieve Customer from obligation under the Agreement.
24. Charges and Payment. All charges shall be set forth in the Service Agreement. Monthly recurring charges (MRCs) shall be invoiced by NETWORK SERVICES on a monthly basis in advance and nonrecurring charges shall be invoiced in arrears each month for the previous month’s usage; provided, however, that NETWORK SERVICES shall have the right to bill Customer for any additional recurring and non-recurring charges incurred during any billing period for up to two (2) years following the close of that billing period. In addition, NETWORK SERVICES may, in its sole discretion, request a deposit amount equal to the last monthly invoice or the projected amount of the invoice for the upcoming billing period. Customer shall make all payments for all amounts not properly disputed as required hereunder by the due date printed on the invoice (the “Due Date”). Customer shall advise NETWORK SERVICES in writing in the event that it does not receive an invoice for any billing period; provided, however, that the failure by NETWORK SERVICES to deliver an invoice during any billing period and/or the failure by Customer to provide the required notice shall not relieve Customer of its absolute obligation to make all payments required hereunder in a full and timely manner. In the event that the Start of Service Date for any Facility falls on any day other than the first day of any month, the first invoice to Customer shall consist of: (1) the pro-rated portion of the applicable monthly charge covering the period from the Start of Service Date to the first day of the subsequent month; and (2) the monthly charge for the following month. In addition to its other rights hereunder, in the event that any amounts are not paid in full by the Due Date, NETWORK SERVICES may: (1) impose a late payment charge of the lower of one and one-half percent (1.5%) per month or the highest legally permissible rate, and such late charge shall be payable upon delivery of NETWORK SERVICES’ next invoice to Customer; (2) require security in the amount and form determined by NETWORK SERVICES, in its sole discretion, as a condition of the continued provision of all such Facilities and/or Services; and/or (3) suspend or terminate the Services with two (2) days written notice. NETWORK SERVICES reserves right to replace current facilities with new facilities, including but not limited to loops, IP ports and IOC components. Any applicable sales, use, commercial or other taxes or fees imposed with respect to Facilities provided by NETWORK SERVICES (other than taxes on NETWORK SERVICES’ income), as well as any other fees or assessments imposed by any governmental or quasi-governmental authority (including any private company or the like acting on behalf of such governmental or quasi-governmental authority) and any fees or charges which have the effect of increasing NETWORK SERVICES’ cost of providing such Facilities, shall also be payable by Customer in addition to the other charges set forth in the Agreement. NETWORK SERVICES shall have the right to adjust its rates and charges, impose additional rates, charges or surcharges or change any other term of the Agreement (collectively, a “Change”). A Change shall become effective thirty (30) days after written notice of the Change has been provided to Customer; provided, however, that Customer may terminate any Service adversely affected by the Change (such termination to be effective upon the date the Change would have taken effect) by giving written notice of termination to NETWORK SERVICES within ten (10) days of its receipt of notice of the Change from NETWORK SERVICES. If Customer does not terminate the adversely affected Service within ten (10) days of such notice, any Change shall be effective for the remainder of the Term. NETWORK SERVICES may, in its sole discretion, provide Customer with DNS support. If NETWORK SERVICES chooses to provide Customer with DNS support, NETWORK SERVICES shall charge Customer the sum of contracted amount per month to provide DNS and contracted amount per month to provide reverse DNS. In addition, NETWORK SERVICES shall charge Customer the sum of contracted amount for every DNS or reverse DNS change made by NETWORK SERVICES in excess of one (1) change per calendar quarter. NETWORK SERVICES may, in its sole discretion, provide Customer with technical support. In the event NETWORK SERVICES provides Customer with technical support, NETWORK SERVICES shall charge Customer at a rate of $70.00 per hour for same. NETWORK SERVICES shall charge Customer a fee of $30.00 for every NSF check received by NETWORK SERVICES.
25. Facilities Ordered Delivery & Minimum Service Term. NETWORK SERVICES shall supply to Customer the Services described in the Agreement. On the Effective Date, NETWORK SERVICES shall notify Customer of the target date for delivery of the Facilities (the “Estimated Availability Date”). NETWORK SERVICES shall use commercially reasonable efforts to install each such Facility on or before the Estimated Availability Date; provided, however, the inability of NETWORK SERVICES to deliver a Facility or make any Services available by such date shall not be a breach of the Agreement. NETWORK SERVICES shall use commercially reasonable efforts for all Customer circuits and sites to go “live” on the same day; provided, however, the inability of NETWORK SERVICES to cause all Customer circuits and sites to go “live” on the same day shall not be a breach of the Agreement, and Customer shall be responsible for all charges incurred once a circuit or site goes “live” regardless of whether other circuits or sites have not yet gone “live”. Customer shall take and pay for each Facility for the applicable Minimum Service Term set forth in the Service Agreement. The Minimum Service Terms for each Facility and/or Service shall begin on the date (the “Start of Service Date”) on which Customer accepts delivery of such Facility or after the date on which NETWORK SERVICES notifies Customer that the facility is available for use, whichever is sooner. If Customer cancels the Agreement on or after the fourth (4th) day following Effective Date but before the Start of Service Date for such Service, Customer shall pay in accordance with these T&Cs a charge equal to (a) one month’s Monthly Recurring Charge (“MRC”) for the Service ordered; (b) NETWORK SERVICES’ internal costs incurred in attempting to provide the Services; plus (c) the aggregate fees, charges, expenses, taxes and/or liquidation damages payable by NETWORK SERVICES to any third party suppliers arising out of or in connection with the provision of the Services and/or the cancellation thereof.
26. Term; Renewal. The Agreement shall commence on the Effective Date and shall remain effective until the expiration of term specified in the Agreement (the “Initial Term”). The Agreement shall continue on a month to month basis at the same monthly contracted rate, unless NETWORK SERVICES receives written notice from Customer to terminate the Agreement not less than forty-five (45) days prior to the expiration of the Initial Term or the MTM Term then in effect. The Initial Term and all applicable Renewal Terms and Month to Month Term shall hereafter be referred to collectively as the “Term”. Notwithstanding any other provision in the Agreement or in these Terms and Conditions, NETWORK SERVICES may elect to terminate the Agreement upon providing Customer with written notice of such election. In such event, the effective date of termination shall be thirty (30) days from Customer’s receipt of such notice.
27. Assignment. Neither the Agreement nor any of Customer’s rights or obligations hereunder may be sold, assigned, encumbered or transferred by operation of law or otherwise, without the prior written approval of NETWORK SERVICES, which consent shall not be unreasonably withheld. NETWORK SERVICES may freely transfer, assign or otherwise manner encumber the Agreement and its rights and obligations hereunder.
28. Event of Default. An “Event of Default” shall occur if: (1) Customer fails to make any payment required to be made by it under the Agreement and any such failure remains uncorrected for two (2) calendar days after the date such payment was due; (2) either Party fails to perform or observe any other term or obligation contained in the Agreement or commits any breach hereof, and any such failure or breach remains uncorrected for thirty (30) calendar days (or any lesser number of days if specified elsewhere herein) after receipt of a notice from the non-defaulting Party informing the defaulting Party of such failure; (3) a voluntary or involuntary proceeding shall be commenced by or against either Party in any jurisdiction seeking liquidation, reorganization or other relief under any bankruptcy or similar law which is not dismissed within thirty (30) calendar days of filing; (4) either Party shall make an assignment for the benefit of creditors; or (5) either Party shall generally not be able to pay its debts as they become due. The Parties expressly agree that the failure of any particular circuit or any number of circuits to meet the Specifications shall not constitute a breach of the Agreement but shall only obligate NETWORK SERVICES to provide Outage Credits as set forth herein. The Agreement may be immediately suspended by NETWORK SERVICES, without notice, if NETWORK SERVICES in its sole discretion determines that its network integrity is in jeopardy, or that any Service is being used, or planned to be used, in an unlawful manner, or otherwise in violation of any term hereof.
29. Non-Disclosure and Publicity. Neither Party shall disclose to any third party the terms and conditions of the Agreement without the prior written consent of the other Party.
30. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to any conflicts of law provision that would require the application of the law of any other jurisdiction. By its execution and delivery of the Agreement, each of the Parties thereby irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against it with respect to any matter under or arising out of or in connection with the Agreement must be brought in the applicable state or federal court in whose jurisdiction Reno, Nevada is located, which courts shall have exclusive jurisdiction and venue of all matters arising out of or in connection with the Agreement, except for recognition or enforcement of and judgment rendered by said courts
31. No Modification. No changes or modification to the Agreement shall be effective unless agreed to by an authorized officer of NETWORK SERVICES either by initials or signature.
32. No Waiver. No failure or delay on the part of either Party in exercising any right hereunder and no course of dealing between the Parties shall operate as a waiver of any provision hereof.
33. Representation of Authority. The undersigned represents that he/she is authorized to enter into the Agreement and will indemnify NETWORK SERVICES from any liability arising from a breach of this representation. The undersigned further represents that the information provided in the Agreement is correct and that he/she has reviewed and understands the terms and conditions thereof and agrees to be bound thereby.
34. Headings. Headings contained herein are provided for convenience and reference only. Headings do not affect or limit the interpretation, contents, or terms of the Agreement.
35. Severability. In the event any provision of the Agreement other than the provisions associated with the obligation to make payment for Services hereunder, as applied to either Party or to any circumstance, conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to the Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of the Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of the Agreement does not affect the legality or enforceability of any other provision or portion of the Agreement.
36. Counterparts. The Parties hereby acknowledge that the Agreement may be executed in two or more counterparts and duplicate originals, including electronic and facsimile counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. The Parties intend that any counterpart copy signed and exchanged shall be fully binding as an original handwritten executed copy and all such copies together shall constitute one instrument.
37. Entire Agreement. Subject to any applicable tariff, the Agreement, along with these T&Cs, constitutes the entire Agreement between NETWORK SERVICES and Customer for the Services provided pursuant to the Agreement and supersedes all previous statements, representations and agreements concerning the subject matter hereof, whether written or oral. No statement, representation or warranty made by any agent or representative of NETWORK SERVICES regarding the Services pursuant to the Agreement or the rates therefore shall be binding upon NETWORK SERVICES unless expressly included therein or in these T&C’s.