VOIP PRODUCT AND SERVICES TERMS AND CONDITIONS

THESE VOIP PRODUCT AND SERVICES TERMS AND CONDITIONS (these “Terms”) govern the provision of any and all products and services by Unified Global Solutions, LLC (“UGS”) to the customer (“Customer”) as set forth in any quote, order form, and/or services agreement executed between Customer and UGS (the “Order”). “Party” or “Parties” shall mean, individually, UGS or Customer as the context requires and, collectively, UGS and Customer.

The Order and these Terms (collectively, the “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 Order, these Terms shall govern unless the Order expressly states that the terms and conditions of the Order shall control.

These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

1. Definitions.  For purposes of the Agreement, the terms below shall have the following meanings whenever capitalized:

“Claim(s)” shall mean any and all alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, damages, judgments, lawsuits, legal proceedings, liability, litigation, losses, sanctions, settlement payments, costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought).

“Documentation” shall mean, in digital, printed, or other form, the technical, user and reference manuals, notes, instructions and summaries, technical release notes, Specifications and any other supporting documentation, related to the VOIP Services and VOIP Equipment that UGS provides or makes available to Customer.

“Effective Date” shall mean the effective date set forth in the Order.

“Installation Services” shall mean professional services such as installation, implementation, training, and other services performed by UGS or its contractors for Customer pursuant to the terms set forth in the Agreement.

“Intellectual Property Rights” shall mean all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Specifications” shall mean written descriptions of VOIP Services and VOIP Equipment, as provided or made available by UGS to Customer.

“Support Services” means any troubleshooting or assistance that is needed in support of the VOIP Services or VOIP Equipment, as determined by UGS in its reasonable discretion.

“VOIP Equipment” means, collectively, the VOIP Leased Equipment and VOIP Purchased Equipment.

“VOIP Leased Equipment” means any device, hardware, or other type of machine, if any, leased by Customer hereunder for use by Customer to receive and operate the VOIP Services and any parts thereof, all as described in the Order.

“VOIP Purchased Equipment” means any device, hardware, or other type of machine, if any, purchased by Customer hereunder for use by Customer to receive and operate the VOIP Services and any parts thereof, all as described in the Order.

“VOIP Services” means the hosted and voice over internet protocol-based services supplied by UGS hereunder for use by Customer, including delivery of voice communications over internet protocol (IP) networks, delivery of multimedia sessions over IP networks, delivery of voice communications, Installation Services and Support Services, all as described in an Order.

2. Rights and Restrictions of VOIP Services.

a. VOIP Services Grant; Limitations. Subject to Customer’s fulfillment of its payment and other obligations hereunder, UGS hereby grants to Customer a nonexclusive, non-transferable, revocable right to access and use VOIP Services and the VOIP Leased Equipment (if any) in the United States as permitted herein and in accordance with the Documentation. In no event shall UGS be obligated to provide any services or equipment other than those expressly set forth in a signed Order. Additionally, UGS shall not be responsible for any suspension or termination in the VOIP Services for, nor shall UGS be liable to correct or repair any suspension of VOIP Services that results from (nor will any of the following reduce or suspend Customer’s payment obligations hereunder), (i) Customer’s violation of the Agreement; (ii) any unauthorized use of the VOIP Services or VOIP Equipment, (iii) any failure of Customer’s internet connectivity, (iv) except as expressly set forth in Section 5.b, any failure, interruption, outage or other problem with, or damage to or loss of, any software, hardware, system, network, facility, products, documentation, data, consent, equipment or components provided or supplied by parties other than UGS, or (v) any unlawful activity by Customer.

b. Restrictions. Except as set forth in this Agreement, Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble, or modify the VOIP Equipment or VOIP Services; (b) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the VOIP Equipment or VOIP Services; (c) use the VOIP Equipment or VOIP Services in any way that is in violation of any law or threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or intended to provide services or process data for the primary benefit of a third party other than Customer (including for telemarketing, auto-dialing or SMS mass messaging); or (d) use the VOIP Equipment or VOIP Services other than in accordance with the Agreement and all applicable laws and regulations. Customer agrees and represents that it is purchasing the VOIP Services and/or the VOIP Equipment for its own internal use only and shall not resell or transfer the VOIP Services or the VOIP Equipment without the advance express written permission of UGS. Customer shall not use the VOIP Services or VOIP Equipment to transmit any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, violate the Intellectual Property Rights of others, give rise to civil liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law.

c. Title to VOIP Purchased Equipment; Risk of Loss. Title and risk of loss to the VOIP Purchased Equipment (if any) passes to Customer upon delivery of such VOIP Purchased Equipment to the address set forth in the applicable Order. As collateral security for the payment of the purchase price of the VOIP Purchased Equipment, Customer hereby grants to UGS a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the VOIP Purchased Equipment (if any), wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.

d. Ownership of VOIP Leased Equipment. Customer does not own the VOIP Leased Equipment (if any) and understands UGS and/or its assignee partner is making such VOIP Leased Equipment available on a rental basis. Accordingly, UGS and/or its assignee will at all times retain title to any and all VOIP Leased Equipment. Customer acquires no ownership, title, property, right, equity, or interest in the VOIP Leased Equipment other than its leasehold interest solely as lessee subject to all the terms and conditions of the Agreement. The parties further intend and agree that, if the Agreement is recharacterized under applicable law as a secured financing or a lease intended for security, the Agreement and the shall be deemed a security agreement and this section shall be deemed to grant UGS by Customer a lien on and first priority security interest in the VOIP Leased Equipment and all proceeds thereof, to secure the payment of Customer’s obligations under the Agreement. Customer and UGS each agree to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded such further documents (including without limitation UCC financing statements), and to do all such things and acts, necessary to ensure that such security interest would be a perfected first priority security interest under applicable law.

e. Intellectual Property. All Intellectual Property Rights in and to all VOIP Services, Specifications and Documentation are and will remain owned by UGS.

3. Delivery and Acceptance.

a. Delivery of VOIP Services. UGS will make VOIP Services and VOIP Equipment (if any) available to Customer on the delivery date identified in the Order.

b. Credit Assessment. Prior to rendering any Installation Services, Customer authorizes UGS to conduct a credit assessment on Customer. Customer shall provide UGS with any information necessary to complete such assessment. UGS may refuse to provide the Installation Services or any other VOIP Services, or terminate the Agreement, on the basis of the results of any such credit assessment.

c. Installation Services. Unless otherwise agreed by UGS in writing, UGS will provide Installation Services (if any) for VOIP Equipment at Customer’s designated location, as set forth in the Order; provided that if Customer does not qualify for credit with the lessor of any VOIP Leased Equipment, UGS will bill Customer, and Customer shall pay UGS, for the Installation Services at the rate of $150 per hour.

d. Acceptance. VOIP Services and VOIP Equipment shall be deemed accepted by Customer upon installation by UGS unless otherwise expressly provided in an applicable Order.

e. Inspection. Customer shall inspect all VOIP Equipment (if any) during the installation process.

f. Local Number Portability. In the event Customer is transferring an existing phone number for the VOIP Services (i.e., porting a number to UGS), Customer hereby authorizes UGS to process Customer’s Order for VOIP Services and to notify Customer’s existing provider of Customer’s decision to switch services to UGS VOIP Services, and Customer hereby represents that it is authorized to take such action. Customer may be required to complete a letter of authorization, or any other information required by Customer’s existing provider in order to port Customer’s numbers. In connection with porting numbers to UGS, UGS will pay Customer’s existing provider an amount up to the “early termination fee” amount set forth in the applicable Order, if any. Customer shall be solely responsible for the payment of any other amounts due to its existing provider or any other third parties in connection with any such transfer to UGS.

g. Returns. Upon termination or expiration of the Agreement or any Order, Customer shall promptly return all VOIP Leased Equipment to UGS or its designee. If any such VOIP Leased Equipment is not returned to UGS or its designee within thirty (30) days following such termination or expiration, Customer shall pay UGS an amount equal to the value of such unreturned VOIP Equipment (as determined by UGS). In the event Customer terminates any Order following shipment but prior to installation of any VOIP Equipment thereunder, then UGS shall invoice Customer, and Customer shall pay to UGS: (i) a restocking fee in an amount equal to twenty percent (20%) of the fees associated with such VOIP Equipment set forth on the applicable Order, and (ii) reimbursement for time, materials, shipping, and other expenses incurred by UGS prior to the effective date of such termination.

4. Fees, Payments and Accounting Matters.

a. Managed Service Fee. Unless otherwise set forth in the applicable Order, the Managed Service Fee set forth in the Order is for 1,000 minutes per month (for $10.00), 2,000 minutes per month (for $20.00) or 5,000 minutes per month (for $50.00). Unless otherwise set forth in the applicable Order, additional minutes will be billed to the Customer at a rate of up to $0.50 per minute.

b. Fees and Payment; Costs Following Order Cancellation. Customer shall pay to UGS the fees set forth in the Order on or before the respective due date set forth in each Order or, if no due date is date forth in the applicable Order, within 10 days following the delivery of an invoice therefor. Additionally, except as expressly set forth herein or in the Order, Customer shall reimburse UGS for all reasonable expenses incurred in connection with the VOIP Services rendered in accordance with the Order. For purposes of clarity, all installation fees and purchase price for any VOIP Purchased Equipment set forth in an Order will be due by or before the installation of the applicable VOIP Purchased Equipment. Notwithstanding the foregoing, in the event Customer signs an Order and subsequently cancels or otherwise terminates such Order prior to installation or receipt of any VOIP Services, Customer shall promptly reimburse UGS for all expenses incurred by UGS in connection with the preparation of any VOIP Services and/or VOIP Equipment thereunder, including, without limitation, costs of any site surveys in connection therewith.

c. Late Payment Charges.

i. If Customer does not pay the applicable fees and charges within fifteen (15) days of the applicable due date, Customer agrees to pay a late charge equal to the lesser of 10% of the amount past due or the maximum legal amount. If Customer does not pay the applicable fees and charges within thirty (30) days of the due date, Customer agrees that such amounts will accrue an interest of 1.5% per month after due date, not to exceed the maximum legal amount, until the applicable fees are paid in full.

ii. In addition to all other remedies available under this Agreement or at law or in equity (which UGS does not waive by the exercise of any rights hereunder), if the Customer fails to pay any amounts when due hereunder and such failure continues for at least forty-five (45) days, UGS will provide Customer with written notice of suspension and, if Customer fails to pay such amounts within three (3) days following receipt of such notice, UGS shall be entitled to suspend the provision of any VOIP Services until such time as Customer has paid UGS all amounts due in full, together with interest thereon. Customer shall pay a flat fee in the amount of thirty-five dollars ($35.00) to reactivate any suspended VOIP Services hereunder. In the event Customer fails to pay any amounts when due hereunder, and such failure continues for at least sixty (60) days, UGS shall be entitled to terminate the VOIP Services and the Agreement in its entirety, immediately upon written notice to Customer. In the event UGS agrees to reconnect any terminated/disconnected VOIP Services hereunder, Customer shall pay to UGS a reconnection fee in the amount of thirty-five dollars ($35.00) per device and/or line.

d. Payment Disputes. Customer must notify UGS before ten (10) days of receipt of an invoice of any errors or disputed charges in such invoice. If timely notice of billing errors or disputed charges is not given, Customer waives any claim with respect to such invoice (which will be final and binding upon Customer) and UGS has no obligation to correct any such error or make any adjustments with respect to any such disputed charge.
e. Taxes. Customer is responsible for, and shall pay any applicable federal, state, municipal, local, or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription for, use of, or payment for the VOIP Services or any VOIP Equipment. Such amounts are in addition to payment for the VOIP Services and/or VOIP Equipment and will be billed to Customer’s account. If Customer is exempt from payment of such taxes, Customer must provide UGS with an original, valid government-issued certificate attesting to tax-exempt status. In such a case, Customer’s tax exemption will apply only from and after the date UGS receives the qualifying tax-exempt certificate.
f. Collections. Without limiting its other rights under the Agreement and at law or in equity, UGS reserves the right to engage a collection agent to collect any amounts that are more than sixty (60) days past due under the Agreement. Customer acknowledges and agrees that any such collections agent may contact Customer by any means available, including, but not limited to, cellular phone.

5. Warranties.

a. Mutual. Each Party represents and warrants to the other Party that (i) such Party has full power and authority to enter into and deliver the Agreement and to perform its obligations thereunder without any further ratification or approval; (ii) the Agreement constitutes the legal, valid and binding obligations of such Party; (iii) neither the entry into and delivery of the Agreement by such Party nor the consummation by such Party of the transactions contemplated hereby will violate or conflict with any obligation, contract, lease or license to which such Party is bound; (iv) such Party has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances; and (v) such Party shall comply with all federal, state, local and, if applicable, foreign laws, rules and regulations in connection with the transactions contemplated by the Agreement.

b. Limited Warranty for VOIP Services and VOIP Leased Equipment; Exclusive Remedy. UGS warrants that: (i) VOIP Services (other than the Support Services) and VOIP Leased Equipment (if any) will conform to the descriptions set forth in the Documentation in all material respects, and (ii) those portions of UGS’s systems, connections and facilities utilized to provide VOIP Services, and any back-ups or redundancies thereof, shall be operable to provide the VOIP Services no less than 99.999% of the time Customer utilizes the VOIP Services; provided, however, that this warranty does not apply to the operability or availability of the VOIP Leased Equipment or any portions of the systems, connections or facilities of Customer or any third party or system outside of UGS’s control that may be necessary for Customer to utilize such VOIP Services. For the avoidance of doubt, the warranty in this Section 5.b does not extend to VOIP Purchased Equipment (including, any VOIP Leased Equipment that is subsequently purchased by Customer).

c. VOIP Leased Equipment Warranty. Subject to Section 5.b, if any VOIP Leased Equipment is subject to warranties provided by the supplier or manufacturer of such hardware or software, UGS hereby transfers, to the extent permissible, such warranties to Customer. For the avoidance of doubt, the warranty in this Section 5.c does not extend to VOIP Purchased Equipment.

d. EXCLUSIVE REMEDY. CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF SECTION 5.B SHALL BE FOR UGS TO RE-PERFORM THE NON-CONFORMING VOIP SERVICES AND/OR REPAIR OR REPLACE THE NON-CONFORMING VOIP LEASED EQUIPMENT, IN EACH CASE AS ELECTED BY UGS IN ITS SOLE DISCRETION.

e. NO VOIP PURCHASED EQUIPMENT WARRANTY. ANY VOIP PURCHASED EQUIPMENT (INCLUDING, ANY VOIP LEASED EQUIPMENT THAT IS SUBSEQUENTLY PURCHASED BY CUSTOMER) IS PURCHASED “AS IS” AND “WITH ALL FAULTS”. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING DISCLAIMER, UGS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE VOIP PURCHASED EQUIPMENT OR VOIP LEASED EQUIPMENT THAT IS SUBSEQUENTLY PURCHASED BY CUSTOMER, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (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.

f. WARRANTY DISCLAIMER. THE WARRANTIES AND REPRESENTATIONS MADE BY UGS SET FORTH IN SECTION 5 ARE IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS. UGS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS (EACH OF WHICH IS DISCLAIMED), INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UGS MAKES NO WARRANTY, AND SHALL HAVE NO WARRANTY OBLIGATION, WITH RESPECT TO SUPPORT SERVICES SET FORTH IN SECTION 6 OR FOR BREACHES OF THE WARRANTY CAUSED BY OR ARISING OUT OF CUSTOMER’S VIOLATION OF THE USE RESTRICTIONS IN SECTION 2.B.

6. Support Services.

During the Term, UGS, at no charge, shall provide the Support Services to Customer. Customer may contact UGS at (214) 838-1378 (ext. 1) at any time to request Support Services. Customer may be asked to leave a phone number and will receive a return phone call to schedule the Support Services. Notwithstanding, if UGS is required to provide in-person Support Services (as determined in UGS’s discretion) in connection with any issue that is not covered by UGS’s warranties hereunder, UGS reserves the right to bill Customer at the rate of $150 per hour (in addition to reimbursement of any out of the pocket expenses incurred in connection with such service call).

7. Customer Obligation.  The Customer shall:

a. Respond promptly to any reasonable requests from UGS for instructions, information, or approvals required by UGS to provide the VOIP Services and/or VOIP Equipment.

b. Cooperate with UGS in the performance of its obligations hereunder provide access to Customer’s premises, employees, contractors, and equipment as required to enable UGS to fulfill its obligations.

c. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in UGS’s provision of the VOIP Services.

d. Maintain and operate in good repair, the VOIP Equipment and all systems through which the VOIP Services or VOIP Equipment are accessed or used.

e. Use and maintain the VOIP Equipment in a reasonable manner and in compliance with the Documentation and all manufacturer and supplier specifications, and not intentionally or negligently damage the VOIP Equipment.

8. Confidential Information.

a. Obligations. Both Parties acknowledge that either Party (as the “Receiving Party”) may receive Confidential Information (defined below) from the other Party (as the “Disclosing Party”) during the Term, and such Confidential Information will be deemed to have been received in confidence and will be used only for purposes of the Agreement. The Receiving Party shall use the Disclosing Party’s Confidential Information only to perform its obligations under the Agreement and disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel who have a need to know the information for the purpose of this Agreement and are bound by confidentiality obligations at least as restrictive as the terms of this Section 8. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. Upon the Disclosing Party’s written request, the Receiving Party shall return or certify the destruction of all Confidential Information (provided, however, that Receiving Party may retain copies of Confidential Information that are stored on Receiving Party’s IT backup and disaster recovery systems until the ordinary course deletion thereof, in which case Receiving Party shall remain bound by the terms hereof with respect to any such retained Confidential Information). The Parties’ respective obligations under this Section 8 shall survive the expiration or termination of the Agreement and continue for three (3) years thereafter; provided, however, the Receiving Party shall keep confidential (i) any personally identifiable information (“PII”) as required by any applicable law; and (ii) any trade secrets of the Disclosing Party as long as such information is deemed a trade secret.

b. Definition. “Confidential Information” means any and all confidential or proprietary information of the Disclosing Party, including, without limitation, (i) all information communicated by the Disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure; (ii) all information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date; (iii) the terms of the Agreement; (iv) all trade secrets of the Disclosing Party; (v) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts of the Disclosing Party and any information related thereto, and (C) information relating to the Disclosing Party’s business plans, sales or marketing methods and customer lists or requirements.

c. Exceptions. Notwithstanding anything herein to the contrary, the obligations of either Party under this Section 8 will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality; (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of the Agreement or other wrongful act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the other Party.

d. Disclosure by Law. Notwithstanding anything herein to the contrary, in the event the Receiving Party is required by law, regulation, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (i) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may, at its cost and expense, contest the disclosure or seek a protective order, and (ii) limit the disclosure to minimum amount that is legally required to be disclosed.

9. Term and Termination.

a. Term. The term of this Agreement (the “Term”) shall continue until the earlier of: (i) the date set forth in the applicable Order (if any), (ii) termination of this Agreement by either Party in accordance with the terms hereof, or (iii) mutual written agreement of the Parties.

b. Termination for Breach. If (i) Customer fails to pay UGS any applicable fees and other charges within ten (10) days of its due date, (ii) Customer breaches any term of the Agreement or Customer’s lease (or other financing arrangement) for any VOIP Leased Equipment (an “Equipment Lease”), or (iii) the Equipment Lease terminates prior to Customer paying all amounts due thereunder, Customer will be in default under the Agreement. If Customer is in default under the Agreement, UGS may terminate this Agreement immediately upon written notice to Customer and, without limiting UGS’s other rights and remedies hereunder, UGS may require Customer to do all or any combination of the following: (a) immediately pay all amounts then due, plus the present value of the remaining payments under the Agreement, and an interim rent and residual value of any VOIP Leased Equipment, as determined by UGS; (b) return any and all VOIP Leased Equipment, at Customer’s sole cost and expense; (c) allow UGS to repossess or disable any and all VOIP Leased Equipment, at Customer’s sole cost and expense; (d) reimburse UGS for its expenses incurred in the collection or servicing of the Agreement and its attorney’s fees and costs relating to addressing the default; and/or (e) use any and all remedies available to UGS under applicable law or in equity. UGS may apply any security deposits to Customer obligations.

c. Termination in Event of Insolvency or Bankruptcy. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.

d. Termination of Month-to-Month Order. If any Order applicable to VOIP Purchased Equipment provides for a month-to-month term, then such Order will automatically renew for subsequent one calendar month periods unless terminated as provided in this Section 9.d. Either Party may terminate any such month-to-month Order effective as of the last day of a calendar month upon at least 30 days’ prior written notice to the other Party.

e. Effect of Termination. Upon any termination of the Agreement or any Order, (i) all licenses granted to Customer allowing for use of any VOIP Leased Equipment and VOIP Services will immediately terminate, and (ii) Customer shall immediately pay to UGS any and all outstanding amounts due to UGS at the time of termination, including but not limited to rendered service, hardware, and installation fees.

f. Ported Numbers. Customer may be able to port its numbers to another service provider upon termination or expiration of the Agreement. In the event Customer desires to port any number, Customer shall promptly notify UGS in writing of such request. Upon UGS’s receipt of such request, UGS shall promptly disconnect all of Customer’s other numbers and may terminate the Agreement in its entirety upon written notice to Customer. Customer will be responsible for all fees and charges under the Agreement until such termination. For the avoidance of doubt, porting any number hereunder to another service provider will result in termination of all other numbers and VOIP Services hereunder.

g. Survival. The rights and obligations of the Parties set forth in this Section 9 and in Sections 2.b-e, 3.g, 4, 5.c-f, 8 and 10-14, will survive any termination or expiration of this Agreement.

10. Indemnification.

Customer shall defend, indemnify and hold harmless UGS and its successors, assigns, officers, directors, employees, agents, and representatives (“Indemnitee”) from and against any and all Claims asserted against, imposed upon or incurred by an Indemnitee due to arising out of or relating to: (i) any act, error, omission, fault, negligence or misconduct of Customer; (ii) Customer’s breach of any of its representations, warranties, covenants or other terms of the Agreement; (iii) Customer’s negligence, gross negligence, or willful misconduct; (iv) Customer’s failure to comply with any applicable laws; or (v) Customer’s access to, use of, or inability to access or use, the VOIP Services or VOIP Equipment, in each case except to the extent arising out of UGS’s gross negligence, intentional misconduct or material breach of this Agreement.

11. Limitation Of Liability.

IN NO EVENT SHALL UGS 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 UGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL UGS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF SERVICE FEES ACTUALLY PAID BY CUSTOMER TO UGS PURSUANT TO THE APPLICABLE ORDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Jurisdiction And Venue; Choice Of Law.

a. Governing Law. The Parties mutually acknowledge and agree that this Agreement shall be construed and enforced in accordance with the laws of the State of Texas, without regard to any conflict of law provisions.

b. Dispute Resolution. Except as set forth in Section 14.i, any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance, or breach of the Agreement, will be settled exclusively by arbitration to be held in Dallas, Texas, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in the dispute or controversy. The decision of the arbitrator will be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The prevailing party shall be entitled to recover from the non-prevailing party the prevailing party’s actual attorneys’ fees and costs (including, without limitation, all taxable and non-taxable costs, and all fees and costs to determine the amount of fees and costs to be awarded) incurred in connection with arbitration and enforcement of the judgment.

11. Insurance.

a. Insurance. During the Term, Customer bears all risk of loss or damage to any and all VOIP Leased Equipment until such VOIP Leased Equipment is returned to UGS. At the time of such return, Customer shall be responsible for all missing or damaged VOIP Leased Equipment. Customer must obtain and maintain property and liability insurance on the VOIP Leased Equipment for the full replacement value thereof, at its own cost and expense, in full force and effect during the Term.

b. Insurance Procedures. Customer shall name UGS as a payee and additional insured on all such insurance required in this Section 13. If Customer does not provide UGS with proof of such insurance, UGS may obtain such insurance on the VOIP Leased Equipment. If UGS obtains such insurance, Customer must reimburse UGS for the cost of such insurance and an administrative fee determined by UGS.

12. General.

a. Assignment. Customer may not assign, transfer or delegate (whether directly or indirectly, by operation of law or otherwise) this Agreement, or any of its respective rights or obligations hereunder, without the prior written consent of UGS. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.

b. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a Party at the address set forth on the Order (or such other address as a Party may designate from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission or receipt requested), if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

c. Integrated Agreement. The Agreement constitutes the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety. In the event of a conflict between the terms of this Agreement and any Order, the terms of this Agreement shall control unless the Order expressly provides that it will override this Agreement.

d. Amendments. These Terms are subject to change by UGS without prior written notice at any time, in UGS’s sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” set forth above. Customer should review these Terms prior to purchasing any product or services from UGS. Customer’s continued use of the VOIP Equipment or VOIP Services after the “Last Updated Date” will constitute Contractor’s acceptance of and agreement to such changes.

e. Waiver. No waiver of any of the provisions of the Agreement shall be effective unless it is in writing and signed by the Party waiving its rights. No such waiver shall be deemed or shall constitute a waiver of any other provision of the Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.

f. Severability. If any provision of the Agreement is adjudged by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of the Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the Parties, and that the Agreement shall in any event otherwise remain valid and enforceable.

g. Independent Contractors. Customer and UGS are acting hereunder as independent contractors. Customer shall not be considered or deemed to be an agent, employee, joint venture or partner of UGS. Customer’s personnel shall not be considered employees of UGS, shall not be entitled to any benefits that UGS grants its employees and shall have no authority to act or purport to act on UGS’s behalf. If any federal, state or local government agency, any court or any other applicable entity determines that any such personnel of Customer is an employee of UGS for any purpose, Customer shall indemnify, defend and hold harmless UGS, its officers and directors from all liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) associated with such determination. Customer shall be responsible for the conduct of its personnel. Neither Customer nor UGS has the right, and shall not seek, to exercise any control over the other Party. Each Party shall be solely responsible for hiring, firing, promoting, demoting, rates of pay, taxes, benefits and other terms and conditions in regard to its own personnel.

h. Injunctive Relief. Unless otherwise specified in this Agreement, all rights, remedies and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers given hereby or any laws now existing or hereafter enacted. Each Party acknowledges and agrees that if it breaches any obligations hereunder, the other Party may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and that in addition to all other remedies that the non-breaching Party may have, the non-breaching Party shall be entitled to seek injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy a breach or threatened breach hereof by the breaching Party and to enforce this Agreement, and the breaching Party hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives any requirement for the securing or posting of any bond in connection with such remedy.

i. Further Assurances. Customer agrees that it shall, from and after the date of this Agreement, execute and deliver such other documents and take such other actions as may reasonably be requested to affect the transactions contemplated hereunder.

j. Interpretation. The Parties acknowledge that they have participated jointly in the negotiation and drafting of the Agreement. In the event an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of the Agreement. Unless the context requires otherwise, all words used in the Agreement in the singular number shall extend to and include the plural, all words in the plural number shall extend to and include the singular and all words in any gender shall extend to and include all genders.

k. Counterparts. Each Order may be executed in counterparts or duplicate originals, all of which shall be regarded as one and the same instrument. The Parties consent to use of facsimile, electronic and/or digital signatures in the execution of any Order and the same shall be binding upon the Parties as if they were an original signature. Facsimile, electronic and digital copies of an Order, including properly executed PDF versions of such Order, shall be regarded as an original instrument by the Parties.

l. Force Majeure. UGS shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of UGS including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, 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.

m. No Third-Party Beneficiaries. The Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

n. No Assignment Rights in Bankruptcy. If a bankruptcy, receivership, or similar proceeding is commenced by or against Customer, or if Customer becomes subject to control of a trustee, Customer may not assign, sell, sublease, assume or otherwise transfer any Intellectual Property Rights in the VOIP Leased Equipment or the VOIP Services.

24518748v.4 – Last Updated 8/24/2022

Copyright © 2019. Unified Global Solutions. | Terms & Conditions