These Service Provider Terms of Service (“ToS”) constitute the agreement between Net X IT Solutions (“we,” “us,” “Net X IT Solutions”) and the Service Provider identified on the Net X IT Solutions Order Form (“Order Form”) executed by Net X IT Solutions and Service Provider (“you,” or “Service Provider”), who acts as a non-exclusive provider of Net X IT Solutions business services and any related products or services set forth on the Order Form (“Service(s)”) to Service Provider’s customers (“End-Users”) either directly or through its Sales Agents. Net X IT Solutions and Service Provider may be referred to in the ToS individually as a “Party” and collectively as the “Parties”.
DEFINITIONS
“Accrued Liability” shall mean the sum of (i) the total invoiced amounts which remain unpaid, plus (ii) the unbilled but accrued usage of Service Provider.
“Agreement” shall mean this ToS (including any additional terms or policies referenced herein), the Order Form and attachments thereto or terms referenced therein.
“Net X IT Solutions IP” shall mean all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including any Net X IT Solutions work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing.
“Confidential Information” shall mean any confidential information or data disclosed by a Disclosing Party to the Receiving Party or Recipient under or in contemplation of this Agreement, including the terms and conditions of this Agreement, and any information posted on www.netxonline.net or any sub-domain of netxonline.net (to the extent that such information is not publicly accessible) or which the Receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information excludes any information or data which the Recipient can demonstrate: (i) is available to the public; (ii) becomes available to the public through no breach of this or any other agreements between the Parties; (iii) before its disclosure hereunder, was known by the Recipient without any obligation owing to the Disclosing Party (directly or indirectly) to hold it in confidence; (iv) is received from a third party who does not owe any duty to the Disclosing Party (directly or indirectly) with respect to such information; (v) is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; or (vi) is approved for release by written authorization of the Disclosing Party but only to the extent of such authorization and without any disassembly, reverse engineering, or similar undertaking by Recipient.
“Credit Limit” shall mean the credit limit applicable to Service Provider under this Agreement, which is identified on the Order Form to this Agreement.
“Demand Labor” shall mean any work or services performed by Net X IT Solutions for Service Provider that is either: (a) not specifically identified in an Order Form and is not identified in Net X IT Solutions published offerings as having a set rate, or (b) set forth on a separately executed Statement of Work by and between Net X IT Solutions and Service Provider.
“Deposit” shall mean the cash security deposit set forth in the Order Form to this Agreement, and any now or later executed attachment.
“Disclosing Party” shall mean, as it relates to particular Confidential Information, the Party disclosing its own Confidential Information to the other Party. A Disclosing Party includes such Party’s corporate affiliates that disclose such Confidential Information.
“Effective Date” shall mean the date identified on the applicable Order Form.
“Equipment” is included in the Net X IT Solutions Services and shall mean any devices, hardware products or appliances purchased by Service Provider from Net X IT Solutions.
“Losses” shall mean any allegations, claims, demands, suits, proceedings, liabilities, judgments, awards, losses, damages, physical injury or death, damage to real property, costs or expenses (including reasonable legal fees).
“Need to Know” shall mean where an employee reasonably requires the Confidential Information to perform his or her responsibilities in connection with this Agreement.
“Receiving Party” or “Recipient” shall mean, as it relates to particular Confidential Information of the other Party, the Party receiving such Confidential Information. A Receiving Party or Recipient includes such Party’s corporate affiliates that receive such Confidential Information.
“Software” shall mean (i) computer programs, written by Net X IT Solutions or its affiliates, contractors or other entities that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, which allow Net X IT Solutions to deliver its Services and products or to integrate with other systems, people, and services. This includes source code which allows computers, servers, and the like to perform a specific operation or series of operations; and (ii) recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, operated, installed, or compiled.
“Sales Agent” shall mean any party appointed by Service Provider to sell the Net X IT Solutions Services on behalf of Service Provider.
“Service Prices” shall mean a price list attached to an Order Form, which shall provide the details of the Services being provided by Net X IT Solutions.
“Taxes and Fees” shall mean all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory and 911 surcharges), whether imposed on Net X IT Solutions or a Net X IT Solutions affiliate, along with similar charges stated in an Order Form.
SERVICES
Certain Services provided by Net X IT Solutions may require Demand Labor for implementation. Under such a circumstance, Net X IT Solutions shall notify Service Provider of the requirement of such Demand Labor, and shall require Service Provider’s written consent (which may be in the form of a separately executed Statement of Work) to proceed with the performance of such Demand Labor.
Any training of Service Provider personnel by Net X IT Solutions may be held at Net X IT Solutions facilities, online, or at a location as determined by Net X IT Solutions, in accordance with Net X IT Solutions schedule. Service Provider is required to hold Net X IT Solutions certifications as set forth in the training policy provided during the onboarding process. Only Service Provider employees who hold a Net X IT Solutions certification are eligible to submit support tickets and interact with support and engineering resources, where offered.
The provision of 911 Dialing Services shall be subject to the Emergency Services – 911 Dialing terms.
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this ToS) services in one or more (or all) service areas.
The phone numbers you and your End-Users obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company or those of your End-Users may, however, be listed. As a result, someone with your phone number or the number of your End-User may not be able to utilize a reverse directory to lookup your address or that of your End-User.
Where the Services include technical support, it is offered by Net X IT Solutions during normal U.S. business hours of 7:30 AM to 8:00 PM ET Monday through Friday. For service impacting issues only, support is offered 24/7. Support is provided only to a) Service Provider employees who have attended Net X IT Solutions training and received certification to receive support, or b) who have been otherwise approved by Net X IT Solutions. Net X IT Solutions Support does not include troubleshooting of End-User LAN and WAN issues, third party hardware or software, device issues, or any Service related issues outside of Net X IT Solutions direct control.
Net X IT Solutions may retire Services that become obsolete, and replace them with new Services that provide the same or similar functionality, as necessary, upon notice to Service Provider.
SERVICE PROVIDER OBLIGATIONS
Service Provider shall be responsible for performing all tasks necessary or appropriate to offer to, and provide and maintain the Services for, End-Users, which are not specifically identified in this Agreement or any attachment as being Net X IT Solutions responsibility. Such Service Provider responsibilities include, but are not limited to: (i) procuring its own internet connection and access, which may be required in order to use the Services; (ii) marketing the Services to its End-Users; (iii) connecting End-Users to the Services as provided through Service Provider; (iv) servicing such End-Users, including provision of technical support to such End-Users in their use of the Services; (v) providing End-Users with appropriate legal and regulatory disclosures, and any appropriate notices in connection with the use of the Services, including but not limited to 911 calling notices and a privacy policy, with such privacy policy fully and accurately conveying at least the information included in Net X IT Solutions Privacy Policy; (vi) entering into appropriate contractual arrangements with all such End-Users, which shall include restrictions on the End-Users’ use of the Services that are at least as stringent as Net X IT Solutions Acceptable Use Policyand these ToS, which Service Provider shall require all End-Users agree to prior to making the Services available to such End-Users; (vii) billing and collecting payments from End-Users, agents or sub-contractors where permitted; (viii) managing the Software in support of the Services Service Provider has sold or agreed to provide to its End-Users, and; (ix) complying with all legal, accounting and regulatory obligations associated with Service Provider’s own offerings.
You shall notify us immediately, in writing or by calling our customer support line, if your Service or that of your End-Users is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you contact us, you must provide your account number, the account number of your applicable End-User and a detailed description of the circumstances of the fraudulent or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service or your End-User’s Service, and additional charges. Until such time as we receive notice of the fraudulent or unauthorized use, you and/or the applicable End-User will be liable for any and all stolen, fraudulent or unauthorized use of the Service.
Service Provider acknowledges that:
An internet connection is required for Service Provider and/or its End-Users to utilize the Services, and Net X IT Solutions is not responsible for obtaining or ensuring consistent access to such internet service. Blockage or outage of Service Provider or its End-Users’ internet access will not be cause for withholding payments due under this Agreement.
The Service is not a telecommunications service. Important distinctions exist between telecommunications services and the Services. The Services are subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Service Provider’s rights of redress before regulatory agencies.
The Service may not be compatible with security systems. Service Provider or its End-Users may be required to maintain a telephone connection through Service Provider’s local exchange carrier or that of its End-Users in order to use any alarm monitoring functions for any security system installed in the home or business of Service Provider or its End-Users. Service Provider and/or its End-Users are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
Service Provider acknowledges, and will require its End Users to acknowledge, that the Service may not be compatible with some broadband services. Service Provider acknowledges, and will require its End Users to acknowledge, that some providers of broadband service may provide modems that prevent the transmission of communications using the Services. Net X IT Solutions does not warrant that the Services will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
Service Provider and their End-Users connect to Net X IT Solutions and ultimately our third party carriers via SIP signaling or another method determined by Net X IT Solutions. Traffic or usage originated or terminated through the Service Provider account not supported by Net X IT Solutions or which Net X IT Solutions reasonably believes: (i) is fraudulent or unauthorized, (ii) will unreasonably interfere with Service Providers’ or other Net X IT Solutions customers’ use of the network or the Services, or (iii) may jeopardize the integrity of the network, may be blocked by Net X IT Solutions, in its sole discretion, and not delivered. Service Provider is responsible for all fees incurred for origination and termination Services provided through the Service Provider account provided by Net X IT Solutions even if the Services are unauthorized by the Service Provider or fraudulent.
Net X IT Solutions provides a function that allows End-Users to record individual telephone conversations. The laws regarding the notice and notification and other related requirements of recorded conversations vary by state to state, Net X IT Solutions does not warrant that the function complies with any such notice and notification and other related requirements, and Service Provider and its End-Users are solely responsible for compliance with all local laws and regulations in the relevant jurisdiction when using this feature.
Service Provider acknowledges that, upon payment in full of the fees applicable to the Equipment hereunder, Service Provider will own the Equipment. Net X IT Solutions and its third party vendors are not responsible for the malfunction, destruction, or loss of any Equipment except for the limited warranty provided for the Equipment. Service Provider agrees not to resell the Equipment without the express written consent of Net X IT Solutions.
TERM
This Agreement will commence as of the Effective Date of the most recent Order Form, and, unless terminated earlier as set forth herein, will continue for the term as set forth on the Order Form (“Initial Term”). This Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless a party gives the other party written notice of termination of this Agreement at least sixty (60) days prior to the then-current expiration date. Each Order Form (or Schedule attached thereto) will specify its specific term and renewal periods, if any.
PAYMENT
Service Provider will pay the fees described in the Order Form and attached Schedules. Order Forms may be updated to include new Services and associated rates for such new Services. Service Provider shall pay Net X IT Solutions the prevailing rates for the applicable Services at the time of the commencement of each Renewal Term, provided that Net X IT Solutions shall provide Service Provider with notice of any change in the fees for such Services during such Renewal Term at least ninety (90) days prior to the commencement of any such Renewal Term. Where a particular rate for a Net X IT Solutions Service is not identified in an Order Form, the rate applicable to that Service will be at Net X IT Solutions standard rates, as published by Net X IT Solutions from time to time. All Demand Labor will be billed at prevailing professional service rates in one (1) hour blocks. Travel and expenses will be billed at actual cost.
Service Provider will be invoiced monthly for the greater of (i) the fees for Services provided and provisioned by Service Provider, or (ii) the monthly minimum fees identified on the Order Form. Except for local number porting fees and 411 listings, non-recurring fees (as identified in Schedule A to the Order Form) may not be applied to the monthly minimum. The Total Initial Payment fee identified in the Order Form will be due upon signing.
Billing for the Services shall commence when the Service is installed or available for use or rendered by Net X IT Solutions, and as set forth on the Order Form. Except as otherwise specified in the Order Form, (i) fees will be billed monthly for Services provisioned during the previous month with any monthly minimum payment or program fee, if any; and (ii) subject to Section 5(f) below, all invoices will be due and payable within ten (10) days of invoice date. All recurring fees will be satisfied by Service Provider by company check, electronic fund transfers or an additional payment form acceptable to Net X IT Solutions (at Net X IT Solutions sole discretion), and Service Provider shall complete and sign an EFT form supplied by Net X IT Solutions.
Excluding taxes based on Net X IT Solutions net income, Service Provider is responsible for all Taxes and Fees. Some Taxes and Fees are recovered through imposition of a percentage surcharge on the charges for Service. Charges for Service are exclusive of Taxes and Fees. Service Provider must present Net X IT Solutions with evidence negating Net X IT Solutions liability to pay or withhold certain Taxes and Fees, which Net X IT Solutions may consider in its sole discretion.
Interest will accrue on past-due balances as of the date of delinquency at the lower of: (i) one and one-half percent (1.5%) per month, or (ii) the highest rate permitted by applicable law. If Services are discontinued due to nonpayment of fees and subsequently recommenced, a reconnection fee or deposit will apply, in addition to applicable interest.
If Service Provider disputes an invoice in good faith, Service Provider may withhold the disputed amount, not to exceed one month’s recurring fees for such Service, provided that Service Provider must: (a) notify Net X IT Solutions within fifteen (15) days of any such invoice date, specifying the nature of the dispute or inaccuracy; and (b) pay any undisputed amounts as provided herein. Both Parties will in good faith investigate and attempt to promptly resolve any disputed invoices. Once resolved, Service Provider will promptly pay any amounts owed as a result of such resolution.
No set-off, deduction or cross-collateralization will be permitted hereunder. Net X IT Solutions may require prepayment or additional security if Service Provider becomes insolvent, is unable to pay its debts when due, is the subject of a bankruptcy proceeding, or other circumstance, in Net X IT Solutions sole discretion.
Service Provider will timely perform all obligations under this Agreement, waives any notification if the Service Provider is in default, and consents to any extensions or modifications granted to the Service Provider.
Credit Approval, Deposits Service Provider will provide Net X IT Solutions with credit information as requested on or before the Effective Date, and as subsequently requested by Net X IT Solutions, from time to time. Net X IT Solutions shall have the right to increase or decrease the Credit Limit by giving at least five (5) days prior written notice of such increase or decrease to Service Provider. Notwithstanding anything to the contrary in this Agreement, if Net X IT Solutions determines at any given time that the Accrued Liability exceeds the then current Credit Limit, Net X IT Solutions shall have the right to demand by written notice that Service Provider make an immediate payment to Net X IT Solutions by wire transfer (or such other method as agreed by the Parties) of such amount required: (i) to reduce its aggregate Accrued Liability to less than the Credit Limit, and (ii) to ensure that the Credit Limit shall not be exceeded prior to the next invoice due date. Upon such demand, the demanded amount shall become immediately due and payable and Service Provider shall pay such amount promptly after its receipt of such notice. If Service Provider fails to remit such payment when due, Net X IT Solutions shall have the right without further notice to suspend and/or terminate the Services.
If required by Net X IT Solutions, Service Provider shall provide Net X IT Solutions with a Deposit. Net X IT Solutions may draw upon the Deposit at any time to recover any amounts due and unpaid, and upon notice to Service Provider, Service Provider shall immediately replenish the Deposit to its prior value. Net X IT Solutions shall not waive any rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts. In the event that Net X IT Solutions draws upon the Deposit, it may suspend the provision of Services until Service Provider replenishes the Deposit to its original value. If at any time Service Provider’s usage exceeds the Credit Limit or its payment history is or becomes unacceptable to Net X IT Solutions, then Net X IT Solutions may require Service Provider to provide, modify, or increase the amount or form of the Deposit. Service Provider shall have five (5) business days from the receipt of the requesting Party’s written request to comply with this request, and if it fails to do so, Net X IT Solutions may immediately suspend the delivery of Services and/or terminate this Agreement without further notice or demand. When Service is discontinued per the terms of the Agreement, and Service Provider is in good standing with Net X IT Solutions, the deposit will be credited to Customer’s account and the balance, if any, refunded.
If changes in applicable law, regulation, rule or order materially affect delivery of Service, the Parties will negotiate appropriate changes to this Agreement. If the Parties cannot reach agreement within thirty (30) days after Net X IT Solutions notice to Service Provider requesting such a renegotiation, Net X IT Solutions may, on a prospective basis after such thirty (30) day period, pass any increased delivery costs on to Service Provider or eliminate Services impacted by the change in law, regulation, rule or order.
CONFIDENTIALITY
During the course of this Agreement, either Party may receive or have access to Confidential Information of the other. Each Party will cause its affiliates to comply with the obligations of this Section 6, and each Party agrees that it is responsible for its affiliates’ compliance with this Section 6. Actions or omissions by a Party’s affiliate, that if taken by said Party would constitute a breach of this Section 6, will be considered actions or omissions of said Party. The Recipient acknowledges the economic value of the Disclosing Party’s Confidential Information. The Recipient therefore, will: (i) use the Confidential Information only in connection with the Recipient’s performance of its obligations or in exercising its rights under this Agreement; (ii) restrict disclosure of the Confidential Information to employees of the Recipient and its affiliates with a “Need to Know” and not disclose it to any other person or entity without the prior written consent of the Disclosing Party; (iii) advise those employees who have access to the Confidential Information of their obligations with respect thereto; (iv) treat the Confidential Information with at least the same degree of care to avoid disclosure to any third party as is used by Recipient with respect to its own information of like importance which is to be kept secret; and (v) copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies.
For the purposes of this Section 6 only, “employee” includes third parties retained by the Parties for temporary consultative, administrative, clerical, programming or related Services support.
If Recipient is required by law or regulation to disclose Confidential Information of the Disclosing Party, Recipient may do so, but only to the extent and for the purposes of such required disclosure, and only if the Recipient first promptly notifies the Disclosing Party of the need for such disclosure and allows the Disclosing Party a reasonable opportunity to seek an appropriate protective order.
Confidential Information, including copies, will be deemed the property of the Disclosing Party. The Recipient will, within twenty (20) days of a written request by the Disclosing Party return all Confidential Information (or any designated portion thereof), including all copies thereof, to the Disclosing Party or if so directed by the Disclosing Party, destroy such Confidential Information. The Recipient will also, within ten (10) days of a written request by the Disclosing Party, certify in writing that it has satisfied its obligations under this Section.
DISCLAIMER OF WARRANTY
NET X COMPUTERS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ITS PROVISION OF THE SERVICES, OR ANY DEMAND LABOR, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. FURTHERMORE, NET X COMPUTERS EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. UNLESS SPECIFICALLY IDENTIFIED IN ANY SERVICE LEVEL AGREEMENT, NET X COMPUTERS MAKES NO WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY OF THE SERVICES.
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF COVER, ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT. IN THE EVENT THAT THIS DISCLAIMER OF LIABILITY IS NOT FULLY ENFORCED, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO SERVICES, ANY DEMAND LABOR, OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY SERVICE PROVIDER FOR THE APPLICABLE SERVICES IN THE ONE MONTH IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM.
THE FOREGOING LIMITATIONS OF LIABILITY IN SECTION 8(a) ABOVE WILL NOT APPLY TO: (I) CLAIMS RELATING TO VIOLATIONS OF NET X COMPUTERS INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO SOFTWARE); (II) SERVICE PROVIDER’S OBLIGATIONS TO PAY NET X COMPUTERS THE FEES APPLICABLE TO THE SERVICES, OR (III) SERVICE PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. ALL OF THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY WHETHER THE APPLICABLE CLAIM IS BASED ON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
INDEMNIFICATION
Service Provider hereby agrees to indemnify, defend and hold harmless Net X IT Solutions, and its respective affiliates, subsidiaries, directors, officers, agents, suppliers, employees and assigns (collectively, “Indemnified Parties”), from and against any Losses arising out of or relating to: (i) Service Provider or Service Provider’s customers’ or End-Users’ use of Services; (ii) the content of Service Provider or Service Provider’s customers’ or End-Users’ data and/or any third party information used, maintained or stored in connection with the Services; (iii) Service Provider or Service Provider’s customers’ or End-Users’ use of 911 or E911 services, including but not limited to Service Provider’s management of and data entry into the platform provided by Net X IT Solutions; (iv) the breach by Service Provider of any representation, covenant or warranty contained herein; (v) violation of any law by Service Provider or any third party arising out of or relating to Service Provider’s actions; (vi) the modification or unauthorized use by Service Provider or Service Provider’s customers’ or End-Users’ or distribution of the Services or Net X IT Solutions Intellectual Property; or (vii) any violation of law in which Service Provider allegedly engaged.
Subject to the limitations set forth in Section 8, Net X IT Solutions shall, during the Term of this Agreement, defend and indemnify, at its expense, any claim or suit brought against Service Provider alleging that Software infringes a U.S. trademark, patent or copyright and shall pay all costs and damages finally awarded, provided that Net X IT Solutions is given prompt written notice of such claim or suit and is given Service Provider’s reasonable assistance and the sole authority to defend or settle the claim. If use of the Software under the terms of this Agreement is, or in Net X IT Solutions opinion is likely to be enjoined due to the type of infringement specified above, then Net X IT Solutions will, at its sole option and expense obtain for Service Provider the right to continue using the Software, or replace or modify the Software so that it becomes non-infringing. Net X IT Solutions shall have no liability for actual or alleged infringement based upon the use of the Software in combination with other products, devices or software not furnished by Net X IT Solutions, use not in compliance with Net X IT Solutions specifications, or modifications made to the Software if the claim or suit of infringement would not have occurred but for such combination or modifications of the Software. Net X IT Solutions disclaims all other liability for patent, trade secret and copyright and other intellectual property rights infringement, including any incidental, special or consequential damages. With respect to any claims or actions relating to infringement of intellectual property rights, the remedies set forth in this section shall be the sole and exclusive remedies to which Service Provider is entitled.
SUSPENSION/TERMINATION
In addition to any other rights at law or in equity, Net X IT Solutions may immediately and without notice, suspend the delivery of Services and/or terminate this Agreement, in whole or in part as it applies to specific Order Form(s) or to specific End-Users, in the event that (i) Service Provider fails to provide a Deposit as required in this Agreement; (ii) Service Provider exceeds the Credit Limit; (iii) Service Provider fails to make payment when due; (iv) Service Provider becomes insolvent or bankrupt or ceases paying its debts generally as they mature; or (v) Service Provider or particular End-Users of Service Provider commit a breach of or otherwise violate any of the terms of this Agreement, including without limitation, the Acceptable Use Policy, or applicable law. If we believe that you or your End-Users have used the Service for an unlawful purpose, we may forward the relevant communication and other information, including your identity or that of your End-User, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding any such communications and information to these authorities. In addition, Net X IT Solutions will provide information in response to law enforcement requests, subpoenas, and court orders, to protect its rights and property, and in the case where failure to disclose the information may lead to imminent harm to the customer or others. In the event that Net X IT Solutions is the defaulting Party on a term of this Agreement, Net X IT Solutions shall have the opportunity to cure the alleged breach for thirty (30) days (or more if Net X IT Solutions notifies Service Provider that Net X IT Solutions has commenced cure activities and continues to use good faith efforts to cure the default). On termination, Service Provider will pay as liquidated damages and not as a penalty, and in lieu of all other damages, the sum of all remaining recurring Service fees (as well as any past due balances) due under the remaining term(s) of the affected Order Forms. Upon the termination of the Service by you or your End-Users, we may, in our sole discretion, release to your or your End-Users’ new service provider the telephone number that you or your End-User ported (transferred or moved over) to us from your previous service provider and used in connection with the Service if (i) such new service provider is able to accept such number; (ii) your account or that of your End-User has been properly terminated; (iii) your account or that of your End-User is completely current, including payment for all charges and applicable termination fees; and (iv) you or your End-User request the transfer upon account termination.
INTELLECTUAL PROPERTY
The Service, and any firmware or Software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on our websites, are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “Marks”) are and will at all times remain our exclusive property. Nothing in this ToS grants you the right or license to use any of our Marks.
You have not been granted any license to use the firmware or Software used to provide the Service or provided to you in conjunction with providing the Service other than a revocable license to use such firmware or Software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this ToS. We reserve the right to prohibit the use of any interface device that we do not approve. You hereby represent and warrant that you and your End-Users possess all required rights, including Software and/or firmware licenses, to use any interface device that we have not provided to you or your End-Users. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use, or that of your End-Users, of such interface device with the Service. Neither you nor your End-Users shall reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or Software.
Net X IT Solutions has and shall retain full and exclusive ownership of all intellectual property rights associated with the Net X IT Solutions IP and any work product developed in connection with the performance of the Demand Labor. Except as expressly provided in an Order Form, Service Provider receives no right, title or interest in or license to use any Net X IT Solutions IP and any work product developed in connection with the performance of the Demand Labor. However, Service Provider does receive a non-exclusive, nontransferable, terminable license to use such of the Net X IT Solutions IP that is necessary for Service Provider to exercise its rights hereunder, but solely in connection with and only for the term of the applicable Service and subject to the terms of any applicable Order Form. Service Provider will not allow access to Net X IT Solutions IP, including without limitation, software and systems, by anybody other than Service Provider’s employees and subcontractors who (i) are bound by law or written agreement to comply with Service Provider’s duties under this Agreement with respect to Net X IT Solutions IP and Confidential Information, and (ii) require such access to assist Service Provider in its permitted use thereof. Service Provider will not directly or indirectly reverse engineer, decompile, disassemble or copy any Net X IT Solutions IP. Service Provider will return all Net X IT Solutions IP to Net X IT Solutions at the conclusion of the applicable Service. Service Provider will cooperate to take such actions reasonably requested to vest ownership of Net X IT Solutions IP in Net X IT Solutions.
ON-SITE SERVICES
If Net X IT Solutions personnel perform Services on Service Provider’s premises: (i) Service Provider will provide all facilities, access, furnishings, equipment, software, documentation, passwords, and data necessary to perform the Services; (ii) Service Provider will maintain adequate security, safety, utilities, and environmental standards, consistent with industry standards and its regular practices; (iii) while on Service Provider’s premises, Net X IT Solutions personnel will comply with Service Provider’s standard rules and regulations consistently applied and communicated to Net X IT Solutions in advance; (iv) except as otherwise provided in an Order Form, Service Provider will reimburse Net X IT Solutions for its reasonable out-of-pocket expenses incurred in connection with the Services, including travel related costs including, but not limited to, coach class travel, business class lodging, automobile rental, and meals.
INSURANCE
Service Provider will maintain during the term of this Agreement: (1) Workers’ Compensation insurance as prescribed by the law of the state or nation in which the work is performed; (2) employer’s liability insurance as prescribed by the law of the state or nation in which the work is performed with limits of at least $500,000 for each occurrence; (3) comprehensive automobile liability insurance if the use of motor vehicles is required, with limits of at least $300,000 combined single limit for bodily injury and property damage for each occurrence; (4) Commercial General Liability insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $1,000,000 combined single limit for bodily injury and property damage for each occurrence; and (5) excess or umbrella liability at a limit of no less than $1,000,000 per occurrence and aggregate in excess of the underlying coverage required above. On written request, Service Provider will furnish certificates evidencing the foregoing insurance. At least thirty (30) days prior to any cancellation or termination of Service Provider policy, Service Provider will notify Net X IT Solutions in writing of such cancellation or termination.
MISCELLANEOUS
Force Majeure. Services may be impeded by events outside of Net X IT Solutions reasonable control, including acts of God, floods, fires, hurricanes, earthquakes, acts of war or terrorism, technology attacks, labor actions, failure of third party suppliers, or changes in applicable laws and regulations. Failure to provide the Services due to a force majeure event will be excused.
All notices required hereunder will be made in writing to the addresses set forth on the applicable Order Form. Notices will be acceptable only if provided as follows, and will be deemed given: (a) one (1) day after deposit with an overnight courier, charges prepaid; (b) three (3) days after mailing by first class, certified, or registered U.S. Mail, charges prepaid, return receipt requested; and (c) when delivered by hand or by facsimile with confirmed receipt.
Independent Contractors. The Parties are independent contractors, and nothing herein will be construed to any other effect. Each Party alone will determine, supervise and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither Party will act or attempt to act or represent itself, directly or by implication, as the other Party’s agent. Each Party will be solely responsible for the withholding and payment of all applicable federal, state, and local taxes for its own employees.
Exclusivity and Competition. Nothing herein shall prohibit Net X IT Solutions from providing services similar or identical to the Services provided to Service Provider hereunder to any other entity or person.
Severability; No Waiver. Any provision of this Agreement that is prohibited or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions. No course of dealing or failure of a Party to enforce strictly any term or provision of this Agreement, or to exercise any right, obligation, or option provided hereunder, will waive such term, provision, right, obligation, or option.
In this Agreement, the term “including” means “including, without limitation”, and the term “days” refers to calendar days. Should the terms of this Agreement and an Order Form conflict, the terms of the Order Form will govern for that Order Form only. No preprinted or form terms on a purchase order will apply.
This Agreement will be binding on the successors and assigns of Net X IT Solutions. Service Provider will not assign, delegate or transfer this Agreement without Net X IT Solutions prior written consent. Not withstanding the foregoing, Net X IT Solutions consent will not be required for an assignment involving a sale of all or substantially all of Service Provider’s assets that relate to this Agreement. Any other assignment or transfer will be void and of no effect.
Governing Law; Arbitration; Limitations on Claims. This Agreement and all acts, transactions, rights, and obligations relating thereto will be governed by and construed under the laws of the Commonwealth of Pennsylvania, without giving effect to principles of conflicts of law. Any dispute or claim between Service Provider and Net X IT Solutions, including those arising out of or relating to the Service, will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Montgomery County, Pennsylvania. The Parties shall equally split the cost of arbitration. The arbitrator’s decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the Parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. All claims shall be arbitrated individually. SERVICE PROVIDER AGREES THAT IT AND NET X COMPUTERS MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SERVICE PROVIDER OR NET X COMPUTERS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.Unless Service Provider and Net X IT Solutions agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
Either Party will be entitled to immediate injunctive relief in addition to any other rights and remedies available to it at law or in equity, without the posting of a bond or demonstration of irreparable harm, for breach by the other Party of Section 6 or 11 above. Except as stated herein, the rights and remedies of each Party are cumulative, and are in addition to any other rights or remedies available at law or in equity.
Laws, Regulations, Permits. Each Party will comply, at its own expense, with all applicable federal, state, county, and local ordinances, regulations, and codes in performing its obligations hereunder. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services and to do business in the United States. If Net X IT Solutions reasonably believes that continued performance of the Services would cause Net X IT Solutions or Service Provider to be in violation of any applicable law, statute, ordinance, court order or regulatory agency rules, Net X IT Solutions may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation.
Advertising and Publicity; Non-Disparagement. Except for materials already made public, neither Party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other Party’s name or trademarks (or any variation thereof), without the other Party’s prior written consent, not to be unreasonably withheld or delayed. During the Term of this Agreement and for a period of one (1) year thereafter, Service Provider agrees to take no action which is intended, or would reasonably be expected, to: (a) harm Net X IT Solutions or its reputation, or (b) lead to unwanted or unfavorable publicity for Net X IT Solutions, including, without limitation, any actions on the Internet or any online forums, blogs, or Facebook or Twitter posts, or any other similar online venues (hereinafter “Online Forums”). In addition, Service Provider may not setup or in any way administrate any Online Forums that relate, directly or indirectly, to Net X IT Solutions or any Net X IT Solutions Service Providers without the express prior written consent of Net X IT Solutions. Notwithstanding the foregoing, Net X IT Solutions may use Service Provider’s name and trademarks in a list of customers, or in connection with written sales or promotional materials (which for the avoidance of doubt shall not include any Online Forums without the express prior written consent of Service Provider). For any Service Provider or entity with a direct relationship with Net X IT Solutions, Net X IT Solutions may place a “Powered by” and/or copyright notice, or similar footer at the bottom of any or all of our software screens. Subject to Section 6, either Party may make appropriate disclosures (including regarding this Agreement) pursuant to federal or state securities or other laws, or for the limited purpose of providing information to shareholders or investment analysts.
Each Party represents to the other that (i) it has full authority to enter into and perform under this Agreement (ii) the person signing this Agreement on its behalf is properly authorized; and (iii) it has read this Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions.
Sections 1, 6 through 11 and 14 will survive the expiration or termination of this Agreement or any Order Form.
Acceptable Use Policy; Privacy Policy, Terms of Use and Data Protection. Service Provider’s use of Services shall comply with, and is subject to, Net X IT Solutions Acceptable Use Policy, ToS and Privacy Policy, as updated from time to time, and which are available through Net X IT Solutions web site (www.net). Service Provider understands and agrees that all such terms are applicable to its use of the Services and any use of the Services by its End-Users. Service Provider consents that Net X IT Solutions may use Service Provider data for the performance of Net X IT Solutions obligations and the exercise of Net X IT Solutions rights under this Agreement, including storing, processing or transferring data to or from the United States.
Non-Solicitation. Service Provider agrees not to employ, either directly or indirectly, as an employee or contractor or otherwise, or, directly or indirectly, to solicit the employment or services of, any Net X IT Solutions employee or contractor who provides Services to Service Provider during the Term of this Agreement and for a period of one (1) year from the date of the termination or expiration of this Agreement, without the express written consent of Net X IT Solutions. This restriction shall not apply if Net X IT Solutions would be prohibited by applicable law from enforcing such a restriction against the Net X IT Solutions employee, and nothing in this Section shall be applied to bar Service Provider from hiring any person in response to a general solicitation for employment. Should Service Provider breach the terms of this Section, Service Provider and Net X IT Solutions acknowledge and agree that Net X IT Solutions would be damaged in an amount that is not reasonably determinable and, therefore, Service Provider agrees to pay to Net X IT Solutions as liquidated damages and not as a penalty for each Net X IT Solutions Employee so hired or engaged by Service Provider, an amount equal to one-third (1/3) of the annual salary paid by Net X IT Solutions to such employee.
We may change the terms and conditions of this ToS from time to time, by posting the terms to our website and making you aware of the change in terms. If you do not accept the changes to these ToS, you will have the opportunity to terminate the Services. If you do not elect to terminate the Services, such changes will become binding on you on the date they are posted to our website. Such amended ToS will supersede all previously agreed to electronic and written terms of service.
Entire Agreement; Execution. This Agreement, together with any attachment(s) or executed amendments, constitutes the Parties’ entire understanding, and supersedes any prior written or oral agreements or understandings, related to the subject matter hereof. This Agreement or any Order Form may be modified only by a mutually executed amendment. This Agreement is not enforceable unless properly executed by both Parties. The Parties’ signatures on the Order Form shall constitute execution of this Agreement.
Last Updated 07/18/18
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